:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 105 OF 2007 AND CIVIL APPLICATION NO. 280 OF 2007 WITH SECOND APPEAL NO. 107 OF 2007 AND CIVIL APPLICATION NO. 284 OF 2007 Ratnabai Sangmeshwar Sardar and anr. ..Appellants Vs. Nagappa Shivappa Sabale and ors. ..Respondents Mr. P.M. Pradhan with Mr. Shrishail Sakhare for appellants. Mr. Vineet B. Naik with Mr. Surel S. Shah i/by Mr. R.S. Alange for respondent nos.1A to 1E. CORAM: CORAM: CORAM: B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. B.H. MARLAPALLE, J. Date Date Date of Reserve of Reserve of Reserve : January 17, 2008. January 17, 2008. January 17, 2008. Date Date Date of Pronoucement : January 22, 2008. of Pronoucement : January 22, 2008. of Pronoucement : January 22, 2008. P.C.: P.C.: P.C.: 1. Both these appeals arise from a common Judgment dated 24/1/2007 rendered by the learned Principal District Judge, Solapur thereby dismissing Civil Appeal Nos.17 and 18 of 2002 filed by the present appellants who were impleaded as defendants in RCS Nos.81/78, 85/78 and 20/79. RCS No. 20/79 came :2: to be dismissed and there was no further appeal against the said decree. Whereas RCS Nos.81/78 and 85/78 were decreed as under:- R.C.S. R.C.S. R.C.S. NO.81 OF 1978 NO.81 OF 1978 NO.81 OF 1978 (a) The plaintiff is entitled to recover the property of iron sheets from the defendant nos.1 and 2 or the defendant no.3. (b) It is declared that defendant nos.2 and 3 have no title or interest in the suit property. R.C.S.NO.85 R.C.S.NO.85 R.C.S.NO.85 OF 1978 OF 1978 OF 1978 (c) The defendants are directed to hand over the suit property within two months from the decree and in case of their failure, the plaintiff has liberty to get possession through the court. (d) The plaintiff is entitled to get mesne :3: profit from the defendant nos.2 and 3 from the date of the suit till the date of possession and enquiry about mesne profit be carried. 2. Defendant nos. 2 and 3 were the present appellants and defendant no.1 was Laxmibai Bapurao Sabale who died on 13/12/1978 during the pendency of the suits. Bapurao and Shivappa were two brothers. Laxmibai was the wife of Bapurao and Parvatibai was the wife of Shivappa. Bapurao and Laxmibai did not have any children, whereas Shivappa and Parvatibai have a daughter by name Nagabai who is married to Shri Murgappa Jirge. Both the brothers had a joint family till the year 1934 and thereafter they separated, set up their own business activities and also acquired moveable/immoveable properties in Solapur District. Bapurao died in the year 1958 and Shivappa died on 20/11/1977. In the year 1969 Shivappa and Parvatibai adopted Nagappa who is their grandson (daughter’s son) as per the Adoption Deed dated 19/5/1969 (Exh.39). After the demise of Bapurao, his widow Laxmibai adopted Vishwanath (defendant no.3) who is the natural :4: son of defendant no.2 and defendant no.2 is the wife of Laxmibai’s brother. At the time of adoption, Nagappa was 19 years of age and Vishwanath was 14 years of age. 3. Plaintiff - Nagappa claimed that he being the adopted son of Shivappa Sabale, all his property had restored on him. In RCS No.81 of 1978 he had prayed for the possession of iron sheets from defendant nos.2 and 3. On the demise of defendant no.1 - Laxmibai, defendant no.2 Ratnabai came on record as Laxmibai’s Power of Attorney and Written Statement at Exhs.13 and 23 were filed by Ratnabai (deft.No.2) and Vishwanath (deft.No.3) respectively. In RCS No.85 of 1978 the plaintiff had prayed for declaration, permanent injunction and possession along with mesne profits of the suit land located in Gat Nos.114 and 158 of village Sayyad Varvade. The main challenge in these second appeals is to the decree passed in RCS No.85 of 1978 which decree has been confirmed by the Lower Appellate Court. 4. Mr. Pradhan, the learned counsel for the appellants, in his oral arguments, has raised the :5: following substantial questions of law:- (a) The plaintiff could not be, in the eyes of law, the adopted son of Shivappa as the plaintiff had attained the age of 19 years when he was purportedly adopted as per the Adoption Deed at Exh.39 and more so when there was no custom in the Lingayat community to adopt a person who was above the age of 15 years and consequently the plaintiff was not capable of being taken in adoption by Shivappa and Parvatibai, as per Section 10(4) of the Hindu Adoptions and Maintenance Act, 1956. (b) If the possession of the suit property was claimed on the basis of the documents at Exhs.36 to 38 which were purportedly signed on 2/7/1955 between Shivappa and Bapurao and as per the documents at Exhs.37 and 38 Declaration Deeds, the suit property was to be returned to Shivappa on the demise of Bapurao (elder brother), Bapurao died in the year 1958 and Shivappa died on 20/11/1977 and, therefore, the suit filed in June 1978 was hit :6: by limitations. (c) If as per Settlement Deeds at Exhs.37 and 38 the suit property had to be returned to Shivappa and it remained in the possession of Laxmibai despite Bapurao’s demise in the year 1958 and subsequently her adopted son, the defendants have become owners of the said property by adverse possession, if the same property was to be put in possession of Shivappa on Bapurao’s demise. 5. I have heard the learned counsel for both the parties, perused the record and proceeding which has been received from the courts below and the documents (paper books) submitted by both the parties. 6. On the first point raised by Mr.Pradhan it is seen from the trial court’s judgment that the plaintiff examined four witnesses to prove the adoption as per Section 10(4) of the Hindu Adoptions and Maintenance Act, 1956. PW 2 Baburao Channappa Kavale (Exh.35) was a witness to the adoption ceremony and had also subscribed the adoption deed at Exh.39, :7: PW 2 Kashinath Dulange (Exh.117) was himself a person who was taken in adoption on 1/5/1971 at Akkalkot (Exh.119) at the age of 21 years, P.W. 3 Nagayya (Exh.40) was the Priest who conducted the adoption ceremony of the plaintiff and signed the adoption deed at Exh.39, P.W. 5 Mahesh Habbu (Exh.126) was the person who had gone in adoption at the age of 16 years and he was the brother-in-law (wife’s brother) of the plaintiff. He stated that he had gone in adoption on 14/2/1976 (Exh.135). PW 3 Vishwanath Banshetti (Exh.125) was a person of 86 years of age and he was another witness who had signed the adoption deed at Exh.39. He stated that he was a social worker and as per the custom in his community (Lingayat) a person above the age of 14 years is taken in adoption. PW 2 Khashivishwanath Kalase (Exh.120) was another person who was taken in adoption at the age of 19 years (Exh.129) and the adoption was dated 1/1/1951 i.e. much prior to the adoption of the plaintiff. The defendants examined D.W.5 Hiremath in support of their contentions that only a person below the age of 15 years was taken in adoption in Lingayat community. However, in his cross-examination, this witness could not even disclose the name of the founder of Virshaiva :8: Lingayat Community and, therefore, the trial court did not find his testimony reliable/authoritative. The evidence of Bapurao Kavale, Vishwanath Banshetty and Kashivishwanath Kalase, in particular, clearly went to show that in the Lingayat community there was a custom prevailing for adopting a person above the age of 14 years. Both the courts below have concurrently held that the adoption of the plaintiff was as per Section 10(4) of the Hindu Adoptions and Maintenance Act, 1956. Reliance was rightly placed on the decision in the case of Kondiba Rama vs. Narayan Kondiba [AIR 1991 SC 1180] whereby the Apex Court held that, if there is a custom of taking in adoption a person at any age, such a custom is judicially recognised and no proof of subsequent case is necessary. If a custom in the concerned area permits adoption of a child at any age is judicially recognised, proof of such custom is not necessary in subsequent cases once the factum of adoption is proved. 7. The plaintiff had brought on record the Partition Deed at Exh.36 between Bapurao and Shivappa, the Sale Deed at Exh.49 and Settlement Deed at Exh.37. These are all registered documents. The Settlement :9: Deed at Exh.37 clearly states that Shivappa agreed to keep in possession the suit agricultural land of his elder brother Bapurao out of love and affection and Bapurao was to cultivate and derive income from the said land without giving anything to Shivappa in return. It was further agreed that on the demise of Bapurao the property shall be put in possession of Shivappa and that none of the LRs of Bapurao would have any right to claim any title over the same. The cause of action to file the suit were the acts attributed to defendant no.1 Laxmibai and more particularly handing over of some portion of the suit property for cultivation to third parties after the demise of Shivappa on 20/11/1977 and, therefore, both the courts below held that the suits were filed within limitations. These concurrent findings are findings of fact and do not suffer from any illegality. 8. On the point of adverse possession, it is necessary for the defendants to prove that they were in possession adverse to the title of the owner and this plea itself implied that the plaintiff’s title over the suit land was accepted. In the Written Statement, at the first instance, the defendants had :10: denied the plaintiff’s title over the suit property. In respect of document at Exh.37 it was alleged that the same was signed by Shivappa not for his love and affection towards the elder brother but, in fact, to come out of the clutches of the creditors. The document has been duly proved and it is a registered document. It is true that Bapurao died in 1958 and the suit property remained in possession of the defendants for almost 20 years after his demise i.e. beyond a period of 12 years. The plaintiff had placed on record a document purported to be an agreement between Shivappa and Bapurao, thereby it was agreed at the instance of Bapurao that the suit property would remain with Laxmibai in case of Bapurao’s demise earlier. This document could not be proved in as much as its original could not be placed on record and only a photostat copy was available. However, PW 2 Baburao Kavale clearly deposed that there was an agreement between Bapurao and Shivappa signed on 2/7/1955 and as per the same Shivappa had agreed at the request of Bapurao that the suit land would be allowed to be retained by Bapurao and Laxmibai till their life time and, therefore, after the demise of Bapurao, Shivappa did not seek possession of the suit property from :11: Laxmibai. This witness stated that Bapurao had specifically requested Shivappa in his presence and, therefore, Shivappa agreed with the same and it was reduced in writing. Therefore, even if the said agreement between Shivappa and Bapurao could not be proved, the fact remains that the possession of Laxmibai over the suit property was the permissive possession and it cannot be accepted that the same was adverse to the title of the plaintiff. The plea of adverse possession has been considered by both the courts below and it has been negatived. Laxmibai being the widow of Shivappa’s elder brother Bapurao, it was quite natural for Shivappa to retain the suit property with her in her life time. Both the Courts below found that the defendants had resorted to a dubious stand about their right / title over the suit property. 9. I am, therefore, satisfied that none of the above mentioned purported substantial questions of law and argued by Mr. Pradhan require any further considerations by this court and hence these appeals must fail at the threshold. The same are hereby dismissed in limine. :12: 10. In view of the above, Civil Application Nos.280/07 and 284/07 do not survive and same shall stand disposed as such. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.) . Mr.Sakhare, the learned counsel for the appellants made an oral application to stay the operation of this order for a period of eight weeks. Mr.Surel Shah, the learned counsel submitted that the execution proceedings have been stayed by this Court and, therefore, it would not be in the interest of justice that the operation of the order is stayed for eight weeks. . The oral application is allowed and the operation of this order is stayed for a period of six weeks from today. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)