SAYAMAMA Vs. CHINNA GOWD

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the Subordinate Judge, Nizamabad. On a perusal of the record and the judgment I find that certain necessary issues were not settled and the disposal of the case is most unsatisfactory. It appears that on the date fixed for recording the evidence of the defendant's witnesses, the counsel cm behalf of the defendant made an oral request for adjournment saying that the defendant was down with typhoid and therefore could not enter appearance or keep the other witnesses ready. He requested for two weeks' time, which was rejected. The case was posted for the next day. An application with the certificate of two native Hakims was presented to the Court to the effect that the defendant was down with typhoid and that is why he was unable to get his own evidence recorded or keep the' other witnesses ready. The learned Subbordinate Judge did not allow any time, but proceeded to dispose of the case. It is contended on behalf of the respondent defendant that the Court below ought to have given sufficient opportunity to the defendant in view of the fact that he was helpless being down with typhoid and could not make arrangements for the examination of his witnesses. It is also seated that one of the most important issues relating to the factum of 'illatom, adoption, on which the defendant based his; right has not been framed. In view of these contentions, I think that the case should be sent back under Order 41, rule 25 after framing the issues with regard to the illatom adoption. They should be in the following words;

(2.) The record is sent back to the trial Court with the direction that the said Court shall take the evidence of the parties on these issues and also rebuttal evidence of the defendant in relation to the other issues which have been already tried in the case, and send the evidence together with his findings and reasons, therefor within two months from the date of the receipt of the papers. The defendant shall pay to the counsel for the appellant in this Court a sum of Rs. 50 by way of costs within 3 weeks from today. The papers be despatched immediately.

(3.) In pursuance of the above order, the Court of the Subordinate Judge.,. Nizamabad has submitted the following findings. The High Court was pleased to remand the suit under Order 41, rule 25, Civil Procedure Code, with a direction to this Court to give findings on two issues framed by the High Court. The facts leading to this remand are briefly stated below Sayamma, the plaintiff in this case, is the" widow of Balagowd son of Rama Gowd. She instituted the suit alleging, inter alia, that she was forcibly dispossessed from the suit prpperties by the defendant on 20th December, 1954 and so prayed for recovery of possession of the suit properties, mesne profits, and the consequential relief of a permanent injunction. The defendant in his written 17th September, 1962. statement contended that he was taken as an illatom son-in-law by -Rama Gowd, that he and Bala Gowd, the husband of the plaintiff, after the death of Rama Gowd were in joint possission of the suit properties till the death of Bala Gawd in. 1347 fasli, that they were living as members of a joint family and that since the death of Bala Gowd he is in sole possession and enjoyment of the suit properties. After the issues were framed, the suit came up for trial before a learned predecessor of mine. He examined 9' witnessess on behalf of the plaintiff and the evidence of the plaintiff was closed on 6th November, 1958 and the case was posted for the evidence of the defendant to 27th November; 1958. On that day, the defendant was not ready with his evidence and the case was adjourned again to. 28th November, 1958 for the evidence of the defendant and for arguments- On that day also, the defendant did not produce his witnesses and so the case was adjourned to 29th November 1958 for arguments and the judgment was delivered on the same day. The then learned Subordinate Judge, though he found several of the issues in favour of the plaintiff, ultimately dismissed the suit. The plaintiff, therefore, went in appeal to the High Court. The High Court remanded the suit to this Court with the following observations. " It is contended on behalf of the respondent-defendant that the Court below ought to have given sufficient opportunity to the defendant in view of the fact that he was helpless being down with typhoid and could not make arrangements for the examination of his witnesses. It is also stated that one of the most important issues relating to the factum of illatom adoption, on which the defendant based his right not been framed. In view of these contentions, I "think that the case should be sent back under Order 41, rule 25 after framing, the issue with regard to the illatom adoption They should be in the following words: (a) Was the defendant taken as the illatom son-in-law of Rama Gowd: in fasli 1332 and was he in possession of the property as such, as alleged by him If so, what is its effect? (b) Is there any custom in the community to which the parties belong of taking an illatom son-in-law ? If not, what is its effect ?