Smt Janakavva W/O Durgappa ... vs Basappa
2022 Latest Caselaw 1951 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 8TH DAY OF FEBRUARY 2022

                              BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                   RSA.NO.206/2006 (MON)
BETWEEN

1.    SMT.JANAKAVVA W/O DURGAPPA SUNKAPUR,
      AGED ABOUT 81 YEARS,
      REP.BY HER P.A.HOLDER HANUMANTHAPPA
      S/O RAMAPPA GADDAD,
      AGED ABOUT 77 YEARS, OCC: AGRICULTURE,
      BOTH ARE R/O TUMMINAKATTI,
      TQ.RANEBENNUR, DIST: HAVERI.
      (SINCE APPELALNT DEAD BY LRS)
1a.   HANAMANATAPPA S/O RAMAPPA GADDAD,
      AGED ABOUT 78 YEARS, OCC: AGRICULTURE,
      BOTH ARE R/O TUMMINAKATTI,
      TQ.RANEBENNUR, DIST: HAVERI.
      SINCE HANAMANATAPPA
      APPELLANT DEAD BY LRS

1b.   ANJANAPPA S/O HANAMANATAPPA
      AGED ABOUT 54 YEARS, OCC: AGRICULTURE,

1c.   VITTAPPA S/O HANAMANATAPPA
      AGED ABOUT 51 YEARS, OCC: AGRICULTURE,

1d.   SHANKARAPPA S/O HANAMANATAPPA
      AGED ABOUT 48 YEARS, OCC: AGRICULTURE,

1e.   NARAYANAPPA S/O HANAMANATAPPA
      AGED ABOUT 45 YEARS, OCC: AGRICULTURE,

ALL ARE R/O TUMMINAKATTI,
TQ.RANEBENNUR, DIST: HAVERI.
                                               ... APPELLANTS
(BY SRI.H.R.GUNDAPPA, ADV.)
                               2




AND

1.     BASAPPA S/O IRABASAPPA GUDIYAVAR,
       (DIED DURING THE PENDENCY OF R.A.NO.82/1990)

2.     NINGAPPA IRABASAPPA GUDIYAVAR,
       DEAD BY LRS

2(a)   SMT.AMPAVVA W/O NIGAPPA IRABASAPPA GUDIYAVAR,
       AGED AOUT 75 YEARS, OCC: HOUSEHOLD WORK,

2(b)   SMT.ANUSUYA W/O SHIVALINGAPPA
       AGED ABOUT 58 YEARS, OCC: AGRICULTURIST,

2(c)   SMT.MALLAMMA W/O MANJAPPA
       AGED ABOUT 56 YEARS, OCC: AGRICULTURE,

2(d)   SMT.KUSUMAVVA W/O MANJAPPA
       AGED ABOUT 54 YEARS, OCC: AGRICULTURE,

2(e)   SMT.SAVITHRAMMA W/O NINGAPPA
       AGED ABOUT 50 YEARS, OCC: AGRICULTURE,

2(f)   VEDAMRTHY GUDIYAVAR S/O NINGAPPA
       AGED ABOUT 45 YEARS, OCC: AGRICULTURE,

2(g)   ANNAPOORNA GUDIYAVAR D/O NINGAPPA
       AGED ABOUT 42 YEARS, OCC: AGRICULTURE,

2(h)   NAGARAJ GUDIYAVAR S/O NINGAPPA
       AGED ABOUT 40 YEARS, OCC: AGRICULTURE,

ALL ARE R/O GUDIYAVAR ONI, TUMMINAKATTI VILLAGE,
TQ.RANEBENNUR, DIST: HAVERI.

3.     KARABSAPPA S/O MALLAPPA GUDIYAVAR
       (DIED DURING THE PENDENCY OF R.A.NO.82/1990)

4.     SANGAPPA S/O MALLAPPA GUDIYAVAR
       (DIED DURING THE PENDENCY OF R.A.NO.82/1990)
                                3




5.     SMT.SIDDALINGAVVA W/O BASAPPA BANDAMMANAVAR,
       AGED ABOUT 82 YEARS, OCC: WEAVER,
       R/O TUMMINAKATTI VILLAGE, TQ.RANEBENNUR, DIST: HAVERI

6.     SMT.KALAVVA W/O VEERABHADRAPPA HOSAKOTE,
       AGED ABOUT 87 YEARS, OCC: WEAVER,
       R/O TUMMINAKATTI VILLAGE, TQ.RANEBENNUR, DIST: HAVERI

7.     BASAPPA S/O RACHAPPA KIRGERI,
       SINCE DECEASED BY HIS LRS

7(a)   KANTHAPPA BASAPPA KIRGERI,
       AGED ABOUT 45 YEARS,

7(b)   PALAKSHAPPA BASAPPA KIRGERI,
       AGED ABOUT 42 YEARS,

7(c)   KOTRESHAPPA BASAPPA KIRGERI,
       AGED ABOUT 39 YEARS,

7(d)   MRUTHUNJAYA BASAPPA KIRGERI,
       AGED ABOUT 33 YEARS,

ALL ARE R/O TUMMINAKATTI,
TQ.RANEBENNUR, DIST: HAVERI.
                                               ... RESPONDENTS

(BY SRI.S.C.VIJAYKUMAR, ADV. FOR R5, R6, R7(a-d),
R2(a), R2(e), R2(f), R2(g) SERVED;
R2(b), R2(c), R2(d) & R2(h) HELD SUFFICIENT)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
LEARNED CIVIL JUDGE (SR.DN.) & PRL. JMFC, RANEBENNUR IN
R.A.NO.82/1990 DATED 05.10.2005 CONFIRM THE JUDGMENT AND
DECREE PASSED BY THE LEARNED PRL. MUNSIFF & ADDL. JMFC,
RANEBENNUR IN O.S.NO.179/1984 DATED 06.08.1990 AND DECREE
THE SUIT FILED BY THE APPELALNT.

     THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                   4




                          JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful plaintiff who sought for redemption and

consequential relief of recovery of possession is dismissed

by both the courts below.

2. Brief facts leading to the case are as under:

Appellant/plaintiff filed a suit for redemption of suit

property and sought for relief of possession by depositing

mortgage money of Rs.200/-. The appellant/plaintiff

contended that suit house bearing VPC No.536 which is

now assigned new VPC No.572/B was originally owned by

one Veerabhadrappa and his two sons namely,

Ramachandrappa and Virupakshappa. The

appellant/plaintiff contended that original vendors had

mortgaged the suit house to one Girimallappa Ninappa

Gudiyavar, who is father of defendant Nos.5 and 6 for a

sum of Rs.200/- and therefore, they are in possession of

the suit schedule property. The original vendors, for family

necessity offered to sell the suit schedule property and

accordingly sold the suit schedule property for a sale

consideration of Rs.500/- under registered sale deed dated

01.08.1964. The appellants/plaintiffs having acquired valid

right and title over the suit schedule property and in terms

of recitals in the sale deed authorizing appellants/plaintiffs

to seek redemption, the present suit came to be filed in

O.S.No.179/1984.

3. Respondents/defendants on receipt of summons

contested the proceedings. Defendant Nos.2 and 7 filed

written statements and stoutly denied the entire averments

made in the plaint. Respondents/defendants have

specifically denied the alleged mortgage by one

Veerabhadrappa and his two sons Ramachandrappa and

Virupakshappa and also payment of Rs.200/- by the father

of defendants. Respondents/defendants also denied the

alienation made by the said Veerabhadrappa and his two

sons in favour of appellants/plaintiffs for a sale

consideration of Rs.500/-. Respondents/defendants also

contended that sale deed set up by appellants/plaintiffs is

false and bogus and the same is a created document.

Therefore, respondents/defendants contended that

appellants/plaintiffs have not acquired any right and title

over the suit schedule property. Respondents/defendants

have specifically contended that they have acquired title by

way of adverse possession. Further, defendant No.7 has

taken up a plea of adverse possession and he claimed that

he has perfected his title by way of adverse possession. In

the alternate, defendant No.7 further contended that in the

event, the plea of adverse possession is not accepted, even

otherwise he is lawful tenant and his tenancy rights are not

terminated and therefore contended that, the present suit

is not maintainable.

4. The trial court based on rival contentions

formulated issues and parties to the suit have let in

evidence to substantiate their claim in terms of the issues

framed by the trial court. The appellants/plaintiffs to

substantiate their claim examined two witnesses as P.Ws.1

and 2 and produced documentary evidence vide Exs.P1 to

P6. Respondents/defendants except adducing ocular

evidence have not produced any documentary evidence.

The trial court having assessed oral and documentary

evidence, though answered issue No.1 in the affirmative by

holding that appellants/plaintiffs have proved that suit

property originally owned by Veerabhadrappa, however,

while examining issue Nos.2, the trial court answered the

same in the negative by holding that appellants/plaintiffs

have failed to prove that the suit property was mortgaged

to one Girimallappa. While examining issue No.4, the trial

court has answered the said issue in the negative and has

come to the conclusion that appellants/plaintiffs have failed

to prove the title and further failed to prove that the

plaintiffs have purchased the suit property on 01.08.1964,

subject to right of redemption under the registered sale

deed. The trial court has also negatived the plea of adverse

possession set up by defendant No.7. On these set of

reasoning, the trial court proceeded to dismiss the suit.

5. The appellants/plaintiffs preferred an appeal

before the first appellate court. The first appellate court

though was required to independently asses oral and

documentary evidence, however has proceeded to confirm

the judgment and decree passed by the trial court and

consequently, dismissed the appeal.

6. It is against these concurrent judgments and

decree of both the courts below, the appellants/plaintiffs

are before this court.

7. This court was pleased to admit the appeal on

the following substantial question of law, which reads as

under:

"Whether both the Courts below committed an

error in dismissing the suit of plaintiff for redemption of

mortgage on the ground that he has not proved the sale

in his favour?

8. Heard the learned counsel for the appellants,

perused the judgments under challenge. I have also given

my anxious consideration to the trial court records.

Respondents are served and unrepresented.

9. The appellants/plaintiffs asserting right and title

on the basis of registered sale deed dated 01.08.1964

which is executed by original owner namely,

Veerabhadrappa and his two sons Ramachandrappa and

Virupakshappa. It is a specific case of appellants/plaintiffs

that their vendor had mortgaged the suit schedule property

for a sum of Rs.200/- to one Girimallappa and on the basis

of the said declaration by the erstwhile owner and also

recitals in the sale deed, the appellants/plaintiffs have filed

present suit seeking redemption by depositing mortgage

money of Rs.200/- and consequently sought relief of

possession.

10. In the present suit, this court would find that

respondents/defendants have disputed the very alleged

mortgage. There is outright denial by the

respondents/defendants in regard to mortgage by the

original vendor in favour of Girimallappa. On the contrary,

respondent No.7 has claimed title by contending that he

has become owner by way of adverse possession. Though

the sale deed is produced by appellants/plaintiffs as per

Ex.P2, both the courts have answered issue No.4 in the

negative and have recorded a finding that

appellants/plaintiffs have failed to prove that they have

purchased the property on 01.08.1964 for a sum of

Rs.500/-. The trial court was of the view that

appellants/plaintiffs have not examined the witnesses to

the sale deed and this was one of the grounds to reject the

title of the appellants/plaintiffs. The said finding is

perverse, palpably erroneous and contrary to Section 68 of

the Indian Evidence Act, 1872. The proof of due execution

of sale deed is not required under law to be proved by

examining a witness. Therefore, the said finding runs

contrary to the Section 68 of the Indian Evidence Act. The

trial court having answered issue No.1 in the affirmative

erred in answering issue No.4 in the negative.

11. This is a peculiar case where

respondents/defendants are not resisting the suit by

admitting the pleadings in regard to mortgage as averred

in the plaint. On the contrary, there is total denial. The

plaint averments do not indicate as to when plaintiffs

vendors had mortgaged the suit schedule property. The

same is also not forthcoming in the written statement in

regard to mortgage by plaintiffs vendor in favour of

defendants' father Girimallappa. If these significant details

are taken into consideration, then I am of the view that the

finding recorded by the trial court on issue No.4 is contrary

to clinching evidence on record and the same suffers from

perversity.

12. If at all the respondents/defendants father had

any right over the suit schedule property as a mortgagee

and in the event appellant/plaintiffs vendor had failed to

pay the said amount, the respondents/defendants father

even otherwise was entitled to obtain/apply for final decree

under Rule 5 of Order XXXIV of CPC, wherein the

mortgager would be debarred from seeking redemption of

mortgage. Order XXXIV provides for frame of suit relating

to mortgages, decrees, preliminary and final, to be passed

in such suits and generally for the substantive rights of the

mortgagee to be satisfied in respect of their debt out of

their mortgage security. Therefore, in the absence of

specific plea by respondents/defendants asserting rights of

a mortgage, both the courts were not justified in drawing

an adverse inference against the appellants/plaintiffs for

having failed to produce the original mortgage document.

If the said fact is specifically denied by the

respondents/defendants and on the contrary the plea of

adverse possession is set up, all that was required to be

examined by the court is whether appellants/plaintiffs have

acquired valid right and title pursuant to registered sale

deed dated 01.08.1964 executed by the earlier owner.

13. Though there are absolutely no documents

indicating that the suit property was mortgaged and in the

light of stand taken by the respondents/defendants in the

written statement where a plea of adverse possession is

raised, I am of the view that the trial court erred in

dismissing the suit by answering issue No.4 in the

negative.

14. It is a trite law that if defendants set up a plea

of adverse possession, plaintiffs can be non-suited only if

plea of adverse possession is established by the

defendants. In the present case issue No.7 was answered

in the negative by the trial court and defendant No.7 has

not challenged the said finding by filing an appeal.

Therefore, in the absence of documents indicating that

there was a mortgage and defendants further having failed

to establish that they have perfected their title by way of

adverse possession, the trial court erred in dismissing the

suit.

15. The first appellate court which is a final fact

finding authority was required to independently assess the

oral and documentary evidence. If the judgment passed by

the first appellate court is meticulously examined, this

court would find that the judgment is mirror image of trial

court judgment. Therefore, prima facie it appears that the

first appellate has not at all applied its mind and rather in a

very casual manner has reproduced the judgment and

decree of the trial court in the appellate format and has

rendered judgment. Therefore, the judgment and decree of

the first appellate court also suffers from serious perversity

and it has not discharged its duty of an appellate court. It

is a trite law that first appellate court has to pronounce

judgment after applying judicial mind in appreciation of

evidence and the reasons assigned therein should

manifestly convey the judicial thinking by which either it

confirms or differs with the reasons recorded by the trial

court. The legislature has entrusted a very important duty

to the first appellate court and therefore, the first appellate

court has to decide finally all questions of fact on which the

disposal of the suit might depends. From the reading of the

judgment, it appears that the first appellate court has not

made an endeavour to make proper apprisement of the

merits of the case put forward by the parties. This is one

kind of such case where this court would find that the first

appellate court has not taken pains to re-appreciate oral

and documentary evidence on record, when valuable rights

of the parties are involved, more particularly in the present

case on hand, the appellants/plaintiffs have purchased the

suit schedule property for a sale consideration of Rs.500/-

way back in 1964. He is made to run from pillar to post

with no success. The appellants/plaintiffs is unfortunately

compelled to undergo a long ordeal of fighting a litigation.

Admittedly, suit is of the year 1984 and we are in 2022.

16. If the clinching evidence on record establishes

the title of appellants/plaintiffs, then I am of the view that

both the courts have concurrently erred in holding that the

appellants/plaintiffs have not established their title. If issue

No.1 was answered in the affirmative, then consequently

both the courts were bound to allow issue No.4. Because

the registered sale deed clearly indicate that original

vendors who have sold the suit schedule property vide

Ex.P2. Therefore, there could not have been conflicting

finding on issue Nos.1 and 4. If the

respondents/defendants have waived off their right insofar

as question of mortgage is concerned, then the courts

should not have insisted appellants/plaintiffs to produce

the document. It was only on account of recital which was

incorporated in the sale deed at the instance of

appellants/plaintiffs vendor, the present plaintiffs have

made an endeavour to approach the court by depositing

the mortgage amount of Rs.200/-. If

respondents/defendants claiming to be the legal heirs of

Girimallappa are disputing the mortgage, then I am unable

to understand as to how the suit filed by the

appellants/plaintiffs could not have been dismissed by

denying the title of appellants/plaintiffs. It is in this

background, I am of the view that substantial question of

law framed by this court has to be answered in the

affirmative by holding that both the courts below have

concurrently erred in dismissing the suit for redemption of

mortgage on the ground that appellants/plaintiffs have

failed to prove their title. The clinching evidence on record

would clearly establish that appellants/plaintiffs have

acquired valid right and title pursuant to registered sale

deed dated 01.08.1964. Since the plea of adverse

possession was negatived by the trial court question of

non-suiting appellants/plaintiffs in the facts and

circumstances was unwarranted. Therefore, the judgment

and decree of both the courts below suffers from serious

perversity and the same are liable to be set aside by

answering the substantial question of law framed by this

court in the affirmative. Hence, I proceed to pass the

following:

ORDER

The appeal is allowed.

The judgment and decree dated 05.10.2005 passed

by the Civil Judge (Sr.Dn) & Prl. JMFC, Ranebennur in

R.A.No.82/1990 and judgment and decree dated

06.08.1990 passed by the Prl. Munsiff & Addl. JMFC,

Ranebennur in O.S.No.179/1984 are set aside. The suit

filed by appellants/plaintiffs is decreed.

The respondents/defendants are directed to handover

the possession of the suit schedule property to the

appellants/plaintiffs within a period of three months.

SD/-

JUDGE MBS/-