PANDAPPA MAHALINGAPPA Vs. SHIVALINGAPPA MURTEPPA

JUDGEMENT

(1.) THIS appeal arises out of a suit for possession of two-thirds of five patilki watan lands of Devapur which were held by one Mahalingappa Gadigeppa Naik till his death and after him by his widow Gaurawa and her adopted son Basappa. Mahalingappa died about the year 1903 and the lands were entered in the revenue records in the name of his widow Gaurawa. Her adopted son Basappa died unmarried in 1919. Gaurawa, whose name had already been entered in the Record of Rights in 1904, continued to be in possession of the watan lands and in February 1921 she leased them cut to Hanmant Venkatesh and Hanmant Balkrishna for a period of twenty years. On June 24, 1921, she executed a deed of adoption in favour of defendant No.1 Pandappa, purporting to have taken him in adoption on April 9, 1921. In 1922 one Bhagawa filed a suit against Gaurawa, through her next friend, claiming possession of the lands in suit on the ground that she was the widow of Basappa. The dispute was referred to arbitration and an award was passed recognising Bhagawa as Basappa's widow and allowing maintenance to Gaurawa. A decree was passed in terms of the award, but before that decree was passed, the two lessees, Hanmant Venkatesh and Hanmant Balkrishna, filed a suit against both Gaurawa and Bhagawa for a declaration that Gaurawa was the lawful heir of Basappa and not Bhagawa and that they were enti led to be in possession of the lands as Gaurawa's tenants for a period of twenty years from the date of the lease. It was held in that suit that Bhagawa was no the widow or Basappa and that Gaurawa was Basappa's heir after his death. That suit was decided on November 13, 1923. After that decision Bhagawa disappeared from the scene, although she had obtained an award decree in her favour, and the lands continued to be in the enjoyment of Gaurawa through her tenants. Defendant No.1, Pandappa, though he claims to have been adopted in 1921. did not take any steps to take pessassion of the lands till 1929. On June 10, 1929, he gave an intimation to the village officers of Devapur that his name should be entered against the lands in the Record of Rights as he had been Liken in adoption by Mahalingappa's widow Gaurawa. Gaurawa first opposed his request and contended that she had not taken him in adoption, but eventually she admitted having adopted him and his name was substituted in the Record of Rights on October 19, 1929. It is not clear from the record whether thereafter the tenants paid rent to Gaurawa or to defendant No.1 Gaurawa died in 1933 and then by some arrangement with the tenants defendant No.1 took actual possession of the lands. The six plaintiffs and defendants Nos. 2, 3 and 4 claim to be the great-great-grandsons of Mahalinganna's great-grandfather's brother Kalasaraddi. The plaintiffs, therefore, filed this suit to recover their two-thirds share in the watan lands of Mahalingappa, alleging that they were reversioners after Gaurawa's death and that defendant No.1 was not her legally adopted son. Defendants Nos. 2, 3 and 4, who would in that case be entitled to the remaining one-third, did not appear in the suit, but defendant No.1 contended that the plaintiffs were not in any way related to Mahalingappa or Basappa, that they belonged to Tiganibidari family, while Mahalingappa and Basappa belonged to the Naik family, that he was the validly adopted son of Gaurawa and as such entitled to the property in suit, and that even if his adoption be not proved, he had acquired a title to that property by the continuous adverse possession of Gaurawa and himself.

(2.) BOTH the Courts below have held that defendant No.1's adoption by Gaurawa is not proved and that the plaintiffs and defendants Nos. 2, 3 and 4 are entitled to the lands in suit as the nearest reversioners after Gaurawa's death. They have further held that defendant No.1's adverse possession commenced only in 1929 and he cannot tack his adverse possession to that of Gaurawa. The trial Court further held that Gaurawa's possession was that of a Hindu widow, and even if she was in adverse possession, he could acquire only a widow's estate in the property in her possession. The plaintiffs' claim was, therefore, decreed by the trial Court and the decree was confirmed in appeal.

(3.) EXHIBIT 69 is an agreement executed by Mahalingappa's father Gadigeppa and plaintiff No.1's father Murteppa in favour of one Govindappa Joshi in 1863. In that agreement they referred to a certain land which was held as an inam by both of them but it does not appear that the land referred to was any of the lands in suit. The document was admitted in evidence as being more than thirty years old, and it is contended hat there is no evidence to show that it was produced from proper custody, and that being executed in favour of Govindappa Joshi, it is not explained how it came into the possess on of the plaintiffs who produced it. On the other hand, it is pointed out that there is a provision in the agreement that it should be returned to the executants after the period of the agreement, viz. one year. It may therefore, be presumed that at the end of the year the document was returned to the executants, and as it is produced by one of the executant's heirs, it has come from proper custody. After all it does not carry the plaintiffs' case further and is not referred to in the judgment of the learned District Judge Hence the finding recorded by the learned District Judge cannot be said to have been vitiated by the admission of these three documents by the trial Court as he has not relied upon any of them.