1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 36 OF 2010 Balasaheb Bajirao Ardad & another .. APPELLANTS VERSUS Kondiba Abaji Ardad & others .. RESPONDENTS Mr. Sachin Deshmukh, Advocate for the appellants. Mr. Vivek Dhage, Advocate for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 25 th January, 2010 PER COURT : 1 Original defendant has presented the instant appeal raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiffs / respondent nos. 1 and 2 instituted Regular Civil Suit no. 326/1999 claiming declaration of ownership and recovery of possession of the suit land. It is not necessary to go into the factual details, however, suffices to say that the contesting defendant / appellant herein claims his entitlement to the property on the basis of adoption deed allegedly 2 executed by Dwdarkabai and Dajiba in his favour. The courts below have found that defendant no. 1 has failed to establish his claim in respect of he being the adopted son of deceased Dwarkabai. It is the contention of the defendant as appearing from the written statement that the adoption has taken place on 6-11-1978. Admittedly, the document in respect of adoption was got prepared, however, the same is not forthcoming and the defendant has failed to place on record either original deed or copy thereof. The evidence in respect of adoption is also discrepant. It is stated that the document placed on record before the Tahsil office in revenue proceeding bears date as 21-11-1978 and he stamp for preparation of the document was allegedly purchased on 6-11-1978. However, in the cross examination defendant has denied to have placed on record such document in revenue proceeding. Evidence in respect of holding of ceremony of adoption is discrepant. Witnesses supporting the case of the defendant have contended that adoption ceremonies were performed either 8 days prior to or after the Diwali of 1978. Apart from this aspect, evidence of defendant no. 1 himself as to who has taken him in adoption is also contrary to his pleadings. He states in his pleadings that his adoptive father Dajiba and mother Dwarkabai have taken him in adoption in the year 1978, however, in cross examination he contends that only adoptive mother Dwarkabai has 3 taken him in adoption after demise of Dajiba. It is brought on record that Dajiba died in 1976 and was not alive on the date of alleged adoption. There is also no evidence placed on record by the defendant to demonstrate that adoption of 1978 was acted upon immediately thereafter. The best possible evidence in the form of school record or any public record has not been placed on record by the defendant. Considering the discrepancies in the pleadings put forth by the defendant, trial court has recorded finding of fact that defendant has failed to prove that he is adopted son of deceased Dwarkabai and has further entitlement to the property left behind by deceased Dwarkabai. 3 Finding of fact recorded by the trial court in respect of validity of adoption has been confirmed by the first appellate court while dealing with Regular Civil Appeal no. 144/2007. I do not find any error in appreciation of evidence by the courts below. Reasons recorded by the courts below are reasonable and proper and do not call for any interference by this court in exercise of jurisdiction under section 100 of the Code of Civil Procedure. Learned counsel for the appellants has made a grievance that the burden of proving validity of adoption has been wrongly cast on the defendants. It is his contention that when the plaintiffs have raised the plea that the 4 revenue record has been manipulated at the instance of defendant on the basis of false record, it was for the plaintiffs to establish that the adoption has claimed by the defendant is not legal or valid. Defendant in his written statement has positively contended that he is claiming his entitlement to the property on the basis of adoption by deceased Dwarkabai. In such situation, trial court was justified in framing issue no. 7 and putting burden on defendant to establish the factum of adoption. Even otherwise, no prejudice is caused to the defendants as the parties were given fullest opportunity to lead evidence by the trial court. In the circumstances, I am of the opinion that the instant appeal does not raise any substantial question of law. Appeal therefore stands dismissed summarily. 4 In view of dismissal of appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa36.10.odt