The Karnataka High Court dismissed an appeal filed under section 100 of CPC against the Judgment and Decree dated 26.02.2019 passed by the Additional District and Sessions Judge, dismissing the appeal and confirming the Judgment and Decree dated 20.04.2012 passed by the Prl. Civil Judge and JMFC. The Court observed that adverse possession can be invoked only if the possession was with the knowledge of the original owner and adverse to his interest and anonymous, which has to be proved but no such circumstances arise in the case on hand since there is a mortgage deed.
Brief Facts:
The present second appeal is filed against the judgment and decree of the Trial Court as well as the First Appellate Court. The relief sought in the Trial Court was redemption of the mortgage of the year 1966; the Trial Court framed an issue with regard to whether the plaintiff proved that there was a deed of mortgage and the same is not disputed but contention was taken by the appellant that subsequent to the mortgage deed, there was an agreement of sale and the same is merged with the mortgage deed and the fact that not enforcing the agreement of sale is also not in dispute. Both the Courts also gave anxious consideration that the agreement is also not proved by examining witnesses to the document.
The document of the mortgage deed is a registered document and the subsequent agreement, though contended that it was executed in the year 1988, the plaintiff has denied that the same is not the signature of his father and husband of the first plaintiff i.e., Bheemegowda. The said document is also not sent to the handwriting expert. The same was denied in order to prove that the said document contains the signature of Bheemegowda not placed any material.
Contentions of the Appellants:
The Learned Counsel for the Appellants submitted that one of the attesting witnesses is no more and hence, his son has been examined, and though the witness admits that he was acquainted with the signature of his father, he did not produce any admitted signature of the father with regard to proving of the same. Further, he contended that since the possession was given in the year 1967 and subsequently the sale agreement was executed on 28.08.1988, he has been in possession of the property for more than 30 years and thereby has perfected his title by adverse possession.
Observations of the Court:
The Court noted that the Trial Court as well as the First Appellate Court came to the conclusion that the mortgage deed is proved and the very contention of the plaintiff that the sale agreement was executed had not been proved and the same is answered as negative.
The Court observed that the question of considering the adverse possession does not arise since there was a document between the parties i.e., the document of mortgage, and when such being the case, adverse possession can be invoked only if the possession was with the knowledge of the original owner and adverse to his interest and anonymous, which has to be proved but no such circumstances arise in the case on hand since there is a mortgage deed.
The decision of the Court:
The Karnataka High Court, dismissing the appeal, held that there is no ground to admit the appeal and frame any substantive question of law invoking section 100 of CPC.
Case Title: Sri Chikkanna & Ors. vs Smt. Mahadevamma & Ors.
Coram: Hon’ble Justice H. P. Sandesh
Case no.: REGULAR SECOND APPEAL NO. 1112 OF 2019 (MOR)
Advocate for the Appellant: Mr. Shivaswamy
Advocate for the Respondent: N/A
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