BASANNA Vs. APPA RAO AND

JUDGEMENT

(1.) This is a second appeal filed by the original plaintiff Basanna against defendant Appa Rao who is the first respondent and Somanna who is respondent 2. One Shivabai widow of Bhimanna was impleaded in the suit as second defendant. But as she died, her name was struck off in the trial Court itself. Plaintiff filed a suit in the court of the Munsiff, Gulbarga in O. S. No. 338/1 of 1952. He based his suit for possession of lands survey Nos. 94, 96, 97 and 100 to the extent of half towards the north, situated in Balgonda village, Gulbarga Taluk, and survey Nos. 10 and 37 to the extent of one-third towards the south of the same village. He also prayed for a declaration of shikmi in respect of all the lands.

(2.) The plaintiff in the former suit alleged that he is the adopted son of one Bhimanna who was the original owner of the suit properties; that after adoption, he lived with the said Bhimanna and as such, as heir of Bhimanna, he was in possession of the suit properties. On the other hand, defendant 1 alleged that he is the adopted son of Bhimanna and not Basanna the plaintiff? After the death of Bhimanna defendant filed a suit against Bhimanna's widow Shivabai and obtained a consent decree for Shikmi in respect of the suit lands, as per order dated 21st Mehr 1336 F. Plaintiff contended that the first defendant is not the adopted son of Bhimanna. The consent decree that was obtained by him was a fraudulent one and therefore, he filed a suit for a declaration of his adoption and to set aside the said decree obtained by defendant I against Shivabai, widow of Bhimanna. That suit was filed on the 15th of Aban 1336 F which was dismissed by the Munsiff on the 9th of Aban 1338 F. Plaintiff filed an appeal before the District Judge, Gulbarga. He failed even there as per the orders of the District Judge, passed on 30th Ardeba-hast 1339 F. Plaintiff took up the matter in appeal before the Sadar-e-Adalat (Divisional District and Sessions Judge) Gulbarga.

(3.) By an order dated 28th Isfandar 1347 F. while dismissing the plaintiff's appeal, the Sadar-e-Adalat held as follows: 1. That the plaintiff's adoption is proved: 2. That the defendant's adoption is not proved: 3. Plaintiff was not in possession of the suit properties and therefore, on that account the Sadar-e-Adalat held that his suit for mere declaration under Section 42 of the Specific Relict Act was not maintainable.