MALLAPPA FAKIRAPPA SANNA NAGASHETTI Vs. SHIVAPPA AND

JUDGEMENT

(1.) This Regular Appeal is against the judgment and decree in Special Civil Suit No. 41/54 on the file of the Civil Judge, Senior Division at Dharwar.

(2.) Plaintff Shivappa brought the suit before the lower Court, for partition and possession of the suit properties which consisted of some lands, three houses and certain movables. The Plaintiff's case was that Fakiravva, defendant No. 2 had taken him in adoption on 14-8-1952 to her (defendant 2's) husband Channappa who appears that have died some thirty years prior to the institutions of the suit. One Fakirappa (who is stated to have died shortly after the death of Channappa) was the father of the said Channappa. Defendant No. 1 was another son of the said Fakirappa by his Udki wife Fakirava, while Channappa was Fakirapp's son by his regularly married wife Iravva. Defendant No. 3 had been impleaded on the ground that though he had no right to any of the suit properties, he had been in possession of the lands claiming to be a tenant under defendant No. 1. Defendant No. 4 was no other than Fakiravva the mother of defendant No. 1. The defendants did not admit the alleged adoption of the plaintiff. They had pleaded that Channappa had prohibited defendant No. 2, two days before his death from taking any one in adoption. The defendants do not appear to have contested the fact that the lands were ancestral lands. They also do not seem to have disputed the fact that out of the three houses, house bearing No. 159 was an ancestral house. They contested the claim of the plaintiff in respect of the remaining two houses and the movables and denied that they were liable to be partitioned. After the issues were framed, the pleader for the defendants filled two purchases which have been market as exhibits 59 and 67. Exhibit 59 was to the effect that defendants admitted the adoption ceremony of the plaintiff and that the adoption deed may be exhibited. Exhibit 67 the purshis filed by the pleader for the defendants 1 and 3 to 5, is to the effect that they had no evidence that lead on issue No. 2. The burden of proving issue No. 2 was on the defendants and that issue related to the question as to whether Channappa had prohibited defendant No. 2 from taking a son in adoption. From these two purchases, the learned trial Judge got the impression that plaintiff's adoption had been conceded by the defendants. In the course of his judgment he stated as follows:

(3.) In this appeal, the decree in so far as it relates to the partition of the lands has not been contested; it is only the correctness of the decree in so far as it relates to the three houses and the movables, that has been contested. The correctness of the finding that the plaintiff was the adopted son has also been attempted to be challenged on certain grounds, which will be shortly mentioned.