Valid adoption requires proof of customary rituals and consent, with documentary evidence insufficient without corroborating proof of actual giving and taking.

ORDER :

SANJEEV S KALGAONKAR, J.

Heard on admission.

2. Records of the Court of first instance and the first Appellate Court have been received.

3. Heard learned counsel for the appellant on admission of appeal.

4. Plaintiff Kalan Kanade (respondent herein) had filed a civil suit against appellant / defendant Raju for declaration of title and vacant possession of the disputed house ad-measuring 10 ft x 15 ft. situated at Kawar Colony, Badwah. She had further prayed for declaration that the adoption deed dated 04/07/2006 is void and not binding on her. Defendant Raju filed counter claim along with written statement and prayed for relief of declaration that he is the adopted son of Tukaram and Kalanbai. He also prayed for declaration of title to the part of the house in his possession and permanent injunction to protect his possession.

5. The Court of first instance i.e. First Civil Judge Class-II, Badwah, District – West Nimad, vide judgment and decree dated 28/07/2018 passed in RCS no. 23-A of 2016, rejected the relief claimed in the counter claim filed by defendant Raju and granted decree of vacant possession in favour of the plaintiff. Defendant Raju preferred appeal assailing the judgment and decree of the Court of first instance. Learned 3^rd District Judge, Badwah, vide judgment and decree dated 29/08/2024 passed in RCA no. 32 of 2018, dismissed the appeal and affirmed the judgment and decree of the Court of first instance. Present second appeal is filed assailing the concurrent findings of the Court of first instance and the first Appellate Court.

6. Learned counsel for the appellant, in addition to the facts and grounds mentioned in the appeal memo, contended that the Court of first instance and the first Appellate Court committed error in concluding that appellant/defendant Raju is not an adopted son of plaintiff Kalan Kanade and her husband Tukaram. Learned counsel referring to the evidence of Radheshyam (DW-3), contended that rituals of adoption as per the custom of the parties stand proved. Defendant Raju was residing with Kalan Kanade and her husband Tukaram for many years. The documentary evidence submitted by the defendant also shows that he was represented as son of Tukaram, therefore, both the Courts committed gross error amounting to perversity in concluding that the defendant had failed to establish his adoption by Tukaram and Kalan Kanade. Defendant Raju was in possession of the disputed property by virtue of succession from Tukaram, his adoptive father, therefore, the impugned judgment and decree suffer from illegality and perversity.

7. Learned counsel referred to substantial questions of law proposed in appeal memo as under :

i) Whether the Ld. Appellate Court was justified in affirming the judgment and decree dated 28.07.2018 passed by the Ld. Trial Court in the suit filed by the Respondent/Plaintiff ?

ii) Whether both the Ld. Appellate Court and Ld. Court of first instance were Justified in not dealing with the counter claim filed by the appellant/defendant No. 1 while passing the impugned judgment and decree dated 29.08.2024 and 28.07.2018?

iii) Whether the Ld. Appellate Court and Ld. Court of first instance were justified in ignoring the settled position of law that a counter claim has to be treated as a separate suit filed by a Plaintiff?

iv) Whether the Ld. Appellate Court and Ld. Court of first instance were justified in passing an unreasoned judgment and decree with respect to the counter claim filed by the Appellant/defendant No. 1?

v) Whether the Ld. Appellate Court and Ld. Court of first instance have passed a reasoned order so far as counter claim is concerned?

vi) Whether the judgment and decree passed by the Ld. Court of first instance and First Appellate Court is sustainable under the law?

8. Learned counsel for the appellant requested that the appeal be heard on merit on proposed substantial questions of law.

9. Per-contra, learned counsel appearing for the respondent submitted that Kalan Kanade has speci