ANNASAHEB BALESHA WAGHE Vs. APPASAHEB DADA POMMAI

JUDGEMENT

(1.) THIS second appeal is filed by the defendant Nos. 1 to 4. The facts leading to this litigation are as under: one Dada Lagammanna Pommai and his wife Godabai had no issues. It is the case of the plaintiff that he was taken in adoption on 11. 5. 1971. After adoption, in the year 1972, Dada Lagammanna pommai died. Thereafter, as adopted son, the plaintiff inherited his estate and he was cultivating the lands along with his mother. They jointly claimed occupancy rights before the Land Tribunal, chikkodi in respect of the lands under cultivation and the same was granted. Thereafter, they have divided the properties. In the said partition, 30 tolas of gold and Rs. 60,000/- was given to smt. Godabai and the agricultural land fell to the share of the plaintiff. It appears that Smt. Godabai executed a Will in respect of the properties on 5. 5. 1976 in favour of the defendant No. 5 and one balesha Waghe and they were cultivating the said lands. Therefore, the plaintiff was constrained to file O. S. No. 197/76 seeking a decree of permanent injunction against the defendants. The said suit after contest came to be dismissed holding that the plaintiff was not in possession on the date of the suit. The plaintiff challenged the said decree in R. A. No. 106/84, which also came to be dismissed and thus the said decree became final. Therefore the plaintiff filed the present suit for declaration of his title, for injunction and in the alternative for possession of the suit schedule property. The defendants filed written statement contesting the claim of the plaintiff. They contended that plaintiff is not the adopted son of Dada Lagammanna Pommai and Smt. Godabai. The set up title to the schedule property under a will dated 5. 5. 1976 executed by Smt. Godabai in their favour. The trial Court framed issues. Both the parties adduced evidence. The trial Court held that the plaintiff is the adopted son, the defendants failed to establish the Will set up by them. However, the judgment and decree between the parties in O. S. 197/76 and R. A. 106/84 would operate as res judicata, and therefore it dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, the plaintiff preferred R. A. 73/2002. The lower appellate court after reappreciation of the evidence on record and after formulating the points for consideration held that the judgment and decree in the earlier proceedings would not operate res judicata in the present proceedings, because in the earlier proceedings the plaintiff sought only bare injunction, whereas the present suit is for declaration of title. Secondly, the appellate Court held that the Will set up by the defendants is not established. However, it did not go into the. question whether the plaintiff is the adopted son, on the ground that the defendants have not challenged the said finding of the trial Court by preferring a cross appeal. Therefore it allowed the appeal and set aside the judgment and decree of the trial Court and granted a decree of declaration and possession. Aggrieved by the said judgment and decree of the lower appellate court, the defendant Nos. 1 to 4 are in this second appeal.

(2.) THE Learned Counsel for the appellants assailing the judgment and decree of the lower appellate Court contended that the lower appellate Court committed a serious error in not considering the case of the defendants and coming to the conclusion chat the plaintiff is the adopted son, on the ground that they had not challenged the said finding of the trial Court by preferring a cross appeal which is totally contrary to law. No cross appeal need be filed terms of compromise challenge a finding. He also contends that the finding recorded on the question of Will is contrary to the material on record.

(3.) LEARNED Counsel for the respondents supported the impugned judgment and decree of the lower appellate Court.