KUMARASWAMY Vs. GANGU BAI

JUDGEMENT

(1.) The plaintiff is the appellant. The suit is filed by the appellant for a declaration that he is the owner and possessor of the suit schedule properties and for perpetual injunction restraining the defendant, Smt. Gangubai from interfering with his possession over the suit properties. The suit was filed in 1977. The trial Court by judgment dated 22-12-1981 dismissed the suit holding that the adoption of the plaintiff by late Sayakka has not been properly proved inasmuch as there is no proof of authority granted to Sayakka by her husband. The Court also held that the defendant-respondent is in possession of the suit lands along with Sayakka and that the plaintiff is not entitled to an injunction. On these findings the suit was dismissed. The learned single Judge by his judgment dated 13-9-1988 has affirmed these findings and dismissed the appeal. It is against this judgment that the present Letters Patent Appeal is preferred by the plaintiff.

(2.) The following facts need be stated : Late Adellu was the husband of Sayakka. As Sayakka did not bear any children late Adellu married Sayakka's sister and the defendant Gangu Bai was born to that lady. In 1921 when the daughter Gangu Bai was 12 years, late Adellu executed a registered gift deed in her favour which has been marked as Ex. B-3. The exact date of the gift deed is 6-5-1331 F. Adellu died some time in 1935. In fact the second wife of Adellu pre-deceased him. After Adellu's death his first wife Sayakka and his second wife's daughter Gangu Bai were living together in the village house. The plaintiff wa., adopted by Sayakka on 8th Dai 1355 Farwardi and a registered adoption deed was executed by Sayakka in favour of the plaintiff (Ex. A-l) on 27th Farwardi 1356 F. Sayakka died some time in 1967. The plaintiff's case is that he performed her funeral ceremonies in 1967 and that the properties were mutated in his name and patta was also transferred likewise. The two suit houses at Kuntala village are also said to have been mutated in the name of the plaintiff in the gram panchayat records. It is his case that he has been paying the cist and taxes for over 10 years. He alleged that the gift deed, Ex. B-3 had never been acted upon. He therefore filed the present suit on the basis of his tide as an adopted son of late Adellu.

(3.) In the written statement filed by the respondent, it is stated that she is not aware of the adoption nor of the adoption deed, Ex.. A-l. It is also stated that Sayakka was not given any authority by her husband to take any boy in adoption. It is stated that late Adellu executed the registered gift deed, Ex. B-3 gifting the properties in favour of the defendant. That document Ex. B-3 was executed when the defendant was 12 years old. Ex. B-3 has always been acted upon. In fact the defendant was looking after Sayakka as she had become blind 9 years before her death. It was defendant who performed her funeral ceremonies. The plaintiff is an employee of the Forest Department and he influenced the Patwari and got his name mutated in the revenue records and the gram panchayat records without the knowledge of the defendant. In fact the defendant was paying the land revenue to the Patwari and she has been in possession and enjoyment of the properties. The suit is therefore liable to be dismissed.