BAI BAI Vs. MAHADU MARUTI

JUDGEMENT

(1.) This is a second appeal by defendant No. 1. The property in dispute in the suit from which this appeal arises orignially belonged to one Ganoji, who died in 1345F, leaving behind him two widows named Santabai and Bai bai. Plaintiff alleged that he was adopted by Santabai in 1348F in pursuance of the permssion given to her by her husband, and that a registered deed of adoption, dated 10-8-1348F, was executed by her. He alleged that he was brought up by Santabai; that Santabi died about 3 years before he instituted the suit, and, subsequently, he was driven away by her co-widow and his step- mother Baibai. Plaintiff claimed a declaration that he was the adopted son of Ganoji and claimed possession on that basis. Defendant No. 1 was Baibai. There were two other defendants. They were joined on th ground that they were cultiviators and in actual possession of the suit lands. Ultimately, it was decided that these two defendants were unnecessary parties. The main contest was between plaintiff and defendant No. 1, Baibai. Her defence was that plaintiff was not adopted by Santabai, and that the story about adoption was false. She denied that Santabai had executed any adoption deed. She also contended that Santabai was not competent to adopt by virtue of a custom prevailing amongst the community to which the parties belong. She also pleaded limitation. She also denied that her husband permitted Santabai to make an adoption.

(2.) On these pleadings, substantially, four issues were raised in the trial Court. The first was whether plaintiff proved that he was adopted by Santabai in pursuance of the authority of her husband and by performance of the necessary religious eremonies. The third issue was whether Santabai was competent to adopt. It is common ground that this issue was raised to try the contention of Baibai that there was a custom by which Santabai was precluded from adopting. The other two issues were whether the registered deed of adoption was proved and whether the suit was in time. The trial Court did not record its findings on issues Nos. 2 and 4. It recorded its findings only on issues Nos. 1 and 3. It held that the alleged custome not to adopt was not proved. However, on the first issue relating to adoption, the trial Court held that plaintiff had failed to establish that the actual giving and taking had taken place. Consequently, it recorded a finding that issue No. 1 had not been proved. It came to the conclusion that, therefore, it was not necessary for it to record its findings on issues Nos. 2 and 4, and, on the basis of its finding on issue No.1, it dismissed the claim of plaintiff. Plaintiff went in appeal to the District Court. That Court reversed the finding of the trial Court on issue No. 1. It held that issue in favour of plaintiff. It held that adoption had been proved and, on this basis, it passed an order on 29th July 1952 A.D. remanding the suit to the trial Court with a direction that that Court shall proceed to try issues Nos.2 and 4 and dispose of the suit on merits and in accordance with law. Defendant No. 1 Baibai did not prefer any appeal from this order of remand. After the remand, the trial Court proceeded to decide the suit. It appears that Baibai again contested the adoption of plaintiff. The trial Court, however, held that it was not competent for it to decide that issue and the matter was concluded by the judgment of the District Court. The finding relating to custome, which had been recorded by the trial Court earler, was also sought to be challenged in that Court. The contention was negatived on the ground that the matter had already been decided by that Court earlier, and, therefore, the trial Court was no longer competent to deal with that issue. On the remaining two issues, the trial Court held that the suit of plaintiff was not barred by limitation and that the registered deed of adoption had been proved. This decision was given be the trial Court on 13th January 1952 A.D., an consistent with the aforesdaid findings, the that Court decreed the claim of plaintiff. From the decision, Baibai preferred a first appeal to the District Court. All the four issues which hd been raised in the trial Court were again sought to be re-agitated by Baibai in the District Court. The District Court took the view that the issue about custome was not open to challenge as it had not been challenged in the first appeal No. 173/4 of 1951 in which the order of remand, dated 29th January 1952 was passed. As regards the question of adoption, the District Court held that the matters was no longer open, and, the finding, recorded by that Court in the earlier appeal No. 173/4 of 1951, was conclusive as it was not appealed against by Baibai. That Court concerred with the findings of the trial Court concurred with the findings of the trial Court on the question of limitation and proof of adoption deed. Consistent with these findings, the District Court dismissed the appeal of Baibai kand confirmed the decree of the trial Court. It is form this decree that the present second appeal is filed.

(3.) Mr.V. S. Deshpande, who appears on behalf of Baibai, raises two points in this appeal. His first point is that the finding of the District Court that that Court was not entitled to decide issue No. 1 relating to the proof of adoption was not correct. His second point is that the finding, which had been earlier recorded by the District Court that adoption had taken place, was not, in fact correct.