KAIKHUSROO MANEKSHAH TALYARKHAN Vs. GANGADAS DWARKADAS
LAWS(BOM)-1935-11-13
HIGH COURT OF BOMBAY
Decided on November 08,1935

BASANGOUDA GIRIYEPPAGOUDA PATIL Appellant
VERSUS
BASALINGAPPA MALLANGOUDA PATIL Respondents

JUDGEMENT

- (1.) THIS litigation is concerned with the rights of the parties in the patilki watan of the village Masuti in the Bagewadi taluka of the Bijapur district. The plaintiff, whose suit has been dismissed by the trial Court and who now appeals, is the adopted son of one Giriyeppagauda, and as such claims to be entitled to the right of service as patil, and also to the lands in the possession of the defendants which form part of the watan. The last undisputed holder of the rights and lands in question was Ningangauda, the adopted son of Irappa Ningappa. He died in 1891, leaving no one in that particular branch of the family except a sister Ningava. The parties to the present litigation belong to collateral branches of the family. Their exact relationship to propositus is a matter of much dispute, but it is common ground that, apart from certain difficulties arising from the fact that Parutagauda, the ancestor of defendants Nos. 1 and 2, was given in adoption, to another family, their branch, i.e., the branch of defendants Nos. 1 and 2,, is more closely connected with Ningangauda's branch than that to which Giriyeppa, the plaintiff's adopted father, belonged. There is no dispute also as to the immediate pedigree of defendants Nos. 1 and 2 which is as follows : Parutagauda. San Irappa Mallangauda (defendantNo.1). Nagava = Rudragauda No.2) Baslingappa/(defendant (adopted). Rudragauda (given in adoption).
(2.) BASALINGAPPA died in 1877 without issue, but his widow Nagava adopted Rudragauda defendant No.2, son of Mallangauda defendant No.1, in 1900. It. may be mentioned, though it does not affect the case materially, that the propositus Ningangauda was also the natural son of defendant No.1 given by him in adoption to Irappa Ningappa and his wife Rudrava in 1887. After Ningangauda's death there was a dispute as to the heirship between Giriyeppa and San Irappa, the father of defendant No.1. In Miscellaneous No.50 of 1891 it was held that Giriyeppa was the heir of Ningangauda and he was given a certificate of heirship. His name was also entered by the revenue authorities in the watan register. San Irappa then filed a suit, No.225 of 1893, for a declaration that he was the heir, and for cancellation of the heirship certificate granted to Giriyeppagauda, This suit was dismissed and appeals to the District Court and to the High Court were unsuccessful. The date of the final decree of the High Court was in February, 1900. The grounds of the decision against San Irappa in these proceedings were that it was found that Parutagauda had been given in adoption to a different watan family altogether, that of Shirol in the Dharwar District. San Irappa tried by various expedients to get out of this. The adoption was denied, alleged to be invalid and finally alleged to have been in the dwyamushyana form, i.e. with rights in both families. An attempt was also made to show that the Shirol family was connected with the Masuti family, so that even if San Irappa belonged to the former, he might still claim as an heir to the Masuti watan. But all these pleas were negatived. There was no hint so far of the point subsequently raised that San Irappa's brother Basalingappa had been born before Parutagauda's adoption, and therefore had remained in the Masuti family. Then came the adoption of Rudragauda by Baslingappa's widow Nagava on March 31, 1900, and soon after Rudragauda through his maternal uncle Subbangauda as next friend filed suit No.943 of 1900 for a declaration that he was Ningangauda's heir. It was not necessary for him to pray for possession of the lands, because it appears that Giriyeppa in spite of his success in the previous litigation had never got possession of any of the lands in dispute. It was alleged in the plaint of that suit that the minor Rudragauda was in possession and that his uncle and next friend was managing on his behalf. In actual fact Mallangauda defendant No.1 appears to have been in possession. He is, as I have said, the natural father both of Ningangauda and Rudragauda. A different pedigree of the family was produced by Rudragauda on this occasion, now exhibit 136, which showed a different common ancestor, and also purported to show that one Irappa Ghullappa was a nearer heir than Giriyeppa in Giriyeppa's own branch. This Irappa, who is defendant No.3 in the present suit, had given his consent to the adoption of Rudragauda and had also made an assignment of his own rights in his favour. This suit was settled by a consent decree under which two fields were assigned to Irappa Ghullappa, and the rest of the land was divided roughly half and half between Giriyeppa and Rudragauda. These two were also held entitled to the right of service in equal shares. In the joint application for recording the compromise, Giriyeppa admitted the correctness of the pedigree and the validity of the adoption of defendant No.2. As the result of the compromise Giriyeppa and defendant No.3 got possession of the lands assigned to them. The settlement, however, was not recognised by Government. Giriyeppa died apparently soon after the compromise decree, which was dated January 3, 1902, and the name of his widow Laxmava was ordered to be entered as representative watandar.* In 1906 an "application was made on behalf of defendant No.2 that he should be shown as entitled to a half share in the right of service, but this was rejected. After he attained his majority Rudragauda brought Suit No.122 of 1912 for a declaration that the compromise decree was null and void, for entry of his name in the watan register and for possession of the land held by Laxmava. This suit was dismissed. Rudragauda, however, persevered; in 1921 he made another application to the Deputy Collector for having his name entered as representative watandar, and in this attempt he was successful. The order made in his favour by the Deputy Collector was confirmed by the Collector. It was reversed by the Commissioner, but was restored by Government. The Government Resolution dealing with the case is exhibit 144. No reasons are stated in the Resolution itself, but from the attached correspondence it appears that Government accepted the position that Baslingappa was born before the adoption of his father Parutagauda and remained a member of the Masuti watan family, that on his death his widow Nagava succeeded him and that she was not postponed to Giriyeppa who was held to be a stranger to the family. In the meanwhile the present plaintiff had been adopted by Laxmava on October 21, 1920, and he brought this suit on April 14, 1928.
(3.) IN the plaint he prayed for the following reliefs : (a) a declaration that defendant No.2 was not the patilki watandar of Masuti, (b) a declaration that plaintiff is entitled to have his name entered in the watan register for the sixteen annas right of patilki service, and (c) possession of the lands in the possession of the defendants. That is to say, he seeks possession in this suit of the land which was assigned to those defendants by the compromise decree of 1902. The allegations in the plaint, so far as they are material, were that the adoption of defendant No.2 is invalid, that Baslingappa and San Irappa were born after the giving in adoption of their father Parutagauda, and that, even if the adoption of defendant No.2 is valid, he is not a watandar of the Masuti watan and therefore he would acquire no right to the lands in suit under the compromise decree. The allegations in the written statements, so far as they are material, were that Baslingappa was not born after the adoption of Parutagauda but before, that on his death in 1877 his widow Nagava succeeded him as heir and that she also succeeded Ningangauda in 1891, that Irappa Ghullappa, defendant No.3, is a nearer heir than Giriyeppa, that the adoption of defendant No.2 made with the consent of Irappa was valid, that the suit is barred by the provisions of the Revenue Jurisdiction Act, and also by limitation.;


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