Anthony S/O. Arokiaswamy Francis vs Renuka N.Bagalkoti
2022 Latest Caselaw 3027 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

           DATED THIS THE 22ND DAY OF FEBRUARY 2022

                               BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO.100268 OF 2014 (DEC & INJ)

BETWEEN
ANTHONY S/O. AROKIASWAMY FRANCIS
AGE: 51 YEARS, OCC: BUSINESS
R/O. RAMANAGAR, ANTHONY BUILDING,
GADAG ROAD, HUBLI, DIST: DHARWAD
                                                     ...APPELLANT

(BY SRI. SANGRAM KULKARNI, ADV.,
FOR SRI. V P KULKARNI, ADVOCATE)

AND
RENUKA N. BAGALKOTI W/O. N BAGALKOTI
AGE: 42 YEARS, OCC: TEACHER
NEAR RAMANAGAR, IV CROSS, HUBLI
DHARWAD 580001.
                                                    ...RESPONDENT
(BY SRI. M. M. PATIL, ADV.,)

        THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE
THE     JUDGEMENT    &   DECREE    DTD:01.02.2014    PASSED   IN
R.A.NO.191/2010 BY THE I-ADDITIONAL DISTRICT AND SESSIONS
JUDGE, DHARWAD SITTING AT HUBLI CONFIRMING THE JUDGMENT
AND DECREE DATED 24.05.2010 AND THE DECREE PASSED IN O.S.
NO.335/2007 BY THE PRINCIPAL SENIOR CIVIL JUDGE, AT HUBLI.


        THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                               2




                         JUDGMENT

This captioned regular second appeal is filed by the

unsuccessful plaintiff wherein both the Courts below have

dismissed the suit of the appellant-plaintiff.

2. The plaintiff filed a suit for declaration and for

consequential relief of injunction by alleging that one

Ningappa Yallappa Bagalakote and his mother Smt.

Dyamavva, who are original owners have executed a

Kabja Patra (mortgage deed) for a sum of Rs.1,70,000/-

on 01.09.2003. The plaintiff further claimed that he is in

lawful possession and enjoyment of the suit property

pursuant to mortgage deed executed by erstwhile owners

Ningappa and Dyamavva. On these set of pleadings, the

plaintiff has filed a suit seeking the relief of declaration

and consequential relief of injunction. Per contra, the

defendant tendered her appearance and has stoutly

denied the entire averments made in the plaint. The

Defendant claimed that one Smt.Tulasabai Salagar was

the true owner of the suit property and she bequeathed

the suit property in her favour on 17.08.1999 and after

the death of testator, she has inherited the suit property

by way of Will. According to defendant, the Trial Court

having meticulously examined the cross-examination of

plaintiff wherein plaintiff has admitted that the mortgage

deed was admittedly executed by Ningappa Yallappa

Bagalakoti and Smt. Dyamavva. The court below found

that plaintiff has admitted that they are not absolute

owners of the suit schedule properties. The Trial Court

also found that the disputed mortgage deed as per Ex.P2

is an unregistered document and no witnesses were also

examined by the plaintiff as required under Section 68 of

the Indian Evidence Act and the Trial Court having

answered issue No.1 and 2 in the negative and issue No.4

in the affirmative has proceeded to dismiss the suit of the

plaintiff. The said judgment was taken in appeal before

the First Appellate Court. The First Appellate Court on

reappreciation of oral and documentary evidence on

record has concurred with the findings of the Trial Court

and proceeded to dismiss the appeal. It is against these

concurrent judgments of the Courts below, the present

appeal is filed.

3. The learned counsel appearing for the

appellant-plaintiff submit to this Court that even though

the claim of the appellant-plaintiff was not accepted by

both the Courts below, however he submits that there is

sufficient material on record to indicate that the plaintiff

is in possession of the suit property and therefore, he is

entitled for protection unless the defendant takes

possession of the property in the manner known to law.

4. Per contra, the learned counsel appearing for

respondent-defendant would submit to this Court that

both the Courts below have dealt with plaintiff's claim and

have come to the conclusion that the mortgage deed

executed in favour of the plaintiff is not by the true

owners of the property and therefore, no right emanates

under the disputed mortgage deed vide Ex.P2. He also

submits to this court that Ex.P2 is an unregistered

document and therefore, no right is accrued pursuant to

execution of Ex.P2-mortgage deed in favour of the

plaintiff. He would take this Court to paragraph 16 of the

judgment of the First Appellate Court and bring to the

notice of this Court that the plaintiff in an unequivocal

term has admitted in his cross-examination that he is not

in possession of the suit property and is residing

elsewhere. Therefore, he would submit to this court that

no substantial question of law would arise in the present

appeal and prayed for dismissal of the appeal.

5. Heard the learned counsel appearing for the

appellant-plaintiff and the learned counsel appearing for

the respondent-defendant. Perused the judgments under

challenge.

6. The plaintiff is asserting his claim on the basis

of mortgage deed executed by one Ningappa Yallappa

Bagalkote and Smt. Dyamavva. During the trial, the

plaintiff has failed to establish that said Ningappa and

Dyamavva were the owners of the property in question.

The defendant has succeeded in establishing that the

property was originally owned by one Smt. Tulasabai

Salagar and therefore, no right flows under the disputed

Ex.P2, which is a mortgage deed. Therefore, on both

counts, the plaintiff cannot assert right in the suit

property. The material on record clearly indicates that the

plaintiff is not in possession of the suit property. Coupled

with this, the plaintiff himself has admitted in his cross-

examination that he is not in possession and he is

residing elsewhere. This categorical admission given by

the plaintiff in his cross-examination goes to the root of

the case. Therefore, the contention of the learned counsel

appearing for the appellant-plaintiff that even if relief of

declaration is not granted, he is entitled to be protected

with his possession unless the defendants secure the

possession by due process of law, cannot be acceded to.

Both the courts have recorded a categorical finding that

the appellant-plaintiff is not in possession of the suit

property and have rightly dismissed the suit of the

plaintiff. No substantial question of law is involved in the

present case. Accordingly, the appeal being devoid of

merits is hereby dismissed.

7. In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

Sd/-

JUDGE YAN