Sri. Chikkanna vs Smt. Mahadevamma
2023 Latest Caselaw 6005 Kant

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                                                       NC: 2023:KHC:30892
                                                     RSA No. 1112 of 2019




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 29TH DAY OF AUGUST, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1112 OF 2019 (MOR)

                   BETWEEN:

                   1.     SRI CHIKKANNA
                          S/O MOLLEBASAVEGOWDA
                          SINCE DEAD BY HIS LRS


                   1(a) SRI K.C.BHEEMARAJU
                        S/O LATE CHIKKANNA,
                        AGED ABOUT 59 YEARS,


                   1(b) SMT. SAVITHRAMMA
                        D/O LATE CHIKKANNA,
                        W/O SIDLEGOWDA
Digitally signed        AGED ABOUT 57 YEARS,
by SHARANYA T           R/AT SANTHEMOGAHALLI DODDY,
Location: HIGH          AKKUR HOBLI, CHANNAPATNA TALUK,
COURT OF
KARNATAKA               RAMANAGARA DISTRICT-562 501,

                   1(c) SRI K.C.RAMACHANDRA
                        S/O LATE CHIKKANNA
                        AGED ABOUT 56 YEARS
                        NO.941, 4TH STAGE
                        9TH MAIN, T.K.LAYOUT
                        SARASWATHIPURAM
                        MYSURU-570 009.

                   1(d) SRI K.C.ARJUNA
                        S/O LATE CHIKKANNA
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                                     NC: 2023:KHC:30892
                                   RSA No. 1112 of 2019




       AGED ABOUT 54 YEARS

       APPELLANTS 1(a) AND 1(d) ARE
       RESIDING AT KANCHANAHALLI VILLAGE
       SATHANUR HOBLI, KANAKAPURA TALUK
       RAMANAGARA DISTRICT-562 126.

                                           ...APPELLANTS

             (BY SRI SHIVASWAMY, ADVOCATE)
AND:

1.   SMT. MAHADEVAMMA
     W/O LATE BHEEMEGOWDA
     AGED ABOUT 72 YEARS

2.   SRI SURESHA
     S/O LATE BHEEMEGOWDA
     AGED ABOUT 40 YEARS

3.   SRI BHIMESHA
     S/O LATE BHEEMEGOWDA
     AGED ABOUT 39 YEARS

     RESPONDENTS NO.1 TO 3 ARE
     R/AT HAGALAHALLI VILLAGE
     CHIKKARASINAKERE HOBLI
     MADDUR TALUK
     MANDYA DISTRICT
     PIN CODE: 571422.

4.   SMT. MANGALAMMA
     D/O LATE BHEEMEGOWDA
     W/O DODDAMARIGOWDA
     AGED ABOUT 62 YEARS
     R/AT SAMANDIPURA
     CHIANNAPATNA TALUK
     PIN CODE: 571501.

5.   SMT. RATHNAMMA
     D/O LATE BHEEMEGOWDA
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                                           NC: 2023:KHC:30892
                                         RSA No. 1112 of 2019




     W/O MARILINGEGOWDA
     AGED ABOUT 59 YEARS
     R/AT RAVANI VILLAGE
     MALAVALLI TALUK
     PIN CODE: 571530.

6.   SMT. SAROJAMMA
     D/O LATE BHEEMEGOWDA
     W/O SHIVANNA
     AGED ABOUT 61 YEARS
     R/AT HANIYUR VILLAGE
     CHANNAPATNA TALUK
     PIN CODE: 571530.

7.   SMT. LAKSHMI
     D/O LATE BHEEMEGOWDA
     W/O KRISHNA
     AGED ABOUT 47 YEARS
     R/AT HANIYUR VILLAGE
     CHANNAPATNA TALUK
     PINCODE: 571501.
                                               ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 26.02.2019
PASSED IN R.A.NO.5017/2018 (OLD NOS.R.A.NO.52/2012 AND
R.A.NO.57/2014)   ON   THE   FILE   OF   THE   II   ADDITIONAL
DISTRICT AND SESSIONS JUDGE, RAMANAGARA TO SIT AT
KANAKAPURA DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT   AND    DECREE DATED 20.04.2012           PASSED IN
O.S.NO.150/1995 ON THE FILE OF THE PRL. CIVIL JUDGE AND
JMFC, KANAKAPURA.

      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                               NC: 2023:KHC:30892
                                             RSA No. 1112 of 2019




                           JUDGMENT

Heard the learned counsel for appellant. This matter is

listed for admission.

2. 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 for redemption of mortgage

of the year 1966 in the Trial Court and the Trial Court has

framed the issues with regard to whether the plaintiff proves

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.

3. Both the Courts have also given anxious

consideration that the agreement is also not proved by

examining witnesses to the document. However, the counsel

appearing for appellant would submits that one of the attesting

witness is no more and hence, his son has been examined and

though witness admit that he is having acquaintance with the

NC: 2023:KHC:30892 RSA No. 1112 of 2019

signature of his father, but, he did not produce any admitted

signature of the father with regard to proving of the same. No

such document was produced by the witness and also taken

note of said fact into consideration, the document of mortgage

deed is registered document and subsequent agreement though

contend that it was executed in the year 1988 but, 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.

4. Having considered all these materials on record, the

Trial Court as well as the First Appellate Court comes to the

conclusion that the mortgage deed is proved and the very

contention of the plaintiff that the sale agreement was

executed was not been proved and the same is answered as

negative, there is a concurrent finding with regard to the

agreement of sale which was canvassed by the appellant and

when such being the case, no question of substantive question

of law arises for consideration by this Court.

NC: 2023:KHC:30892 RSA No. 1112 of 2019

5. The counsel for appellant also vehemently contend

that when the possession is given in the year 1967 and

subsequently the sale agreement was executed on 28.08.1988

and he has been in the possession of the property more than

30 years and thereby perfected his title by adverse possession

and said contention also cannot be accepted. The question of

considering the adverse possession does not arise since there

was a document between the parties i.e., document of

mortgage and when such being the case only adverse

possession can be invoked if the possession is with the

knowledge of the original owner and adverse to his interest and

anonymous has to be proved but, no such circumstances arises

in the case on hand since there is a mortgage deed. Hence, I

do not find any ground to admit the appeal and frame any

substantive question of law invoking section 100 of CPC.

In view of the discussions made above, I pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE RHS