DUNDAPPA Vs. SMT. SUNDRAWWA

JUDGEMENT

(1.) The plaintiff in the Court below is the appellant in RFA No. 4174 of 2012. He had filed a suit in the Court below for the relief of declaration and injunction with respect to the suit schedule properties as against defendants therein. Respondent No. 1 in this appeal, who is the cross objector in RFA Crob. No. 109 of 2013 was defendant No. 1 in the Court below. She had also filed a counterclaim in the Court below. The Court below by its judgment and decree dated 21.11.2012, decreed the suit of the plaintiff in part and ordered and decreed that the plaintiff and defendant No. 2 are entitled to half share in the suit schedule properties. It also allowed the counterclaim of defendant No. 1 holding that she was entitled to half share in the suit schedule properties. It is the said judgment and decree, the appellant and cross-objector have assailed in their respective regular first appeal and cross objection in the said appeal respectively. The appellant has prayed for setting aside of the judgment and decree under appeal and also sought for dismissal of the suit of the respondent, whereas, the cross-objector in her cross-objection filed under Order 41, Rule 22 of Civil Procedure Code, 1908 has prayed to set aside the finding of the Trial Court on issues Nos. 2 to 5 in the impugned judgment and decree and also has prayed for dismissal of the suit of the plaintiff.

(2.) In his memorandum of appeal, the appellant has taken a contention that the finding of the Court below on issues Nos. 1 and 6 and additional issues Nos. 1 and 3 are erroneous and the Court below has grossly erred in holding that the appellant was not the exclusive owner of the suit schedule 'A' properties. He has further contended that the Court below has erred in not considering the error of the Assistant Commissioner and Panchayat Authorities and by further holding that the appellant and respondent No. 2 are entitled to half share in the suit schedule 'A' properties.

(3.) On the other hand, the cross-objector in her memorandum of cross-objection has taken a contention that the plaintiff was aged above 15 years as on the date of alleged adoption, as such, the adoption is bad in the eye of law. She has further taken a contention that the Court below has committed an error by applying the presumption under section 90 of the Indian Evidence Act, 1872, with respect to the certified copy of alleged adoption deed at Ex. P. 8. She has further contended that the Court below committed an error by ignoring the fact that the plaintiff did not examine the scribe of Ex. P. 8 and that the plaintiff did not establish that ceremonies for adoption were duly performed.