Karnataka High Court
Vithoba Vijayrangan Madaliyar vs Mallaprabha Raghunathrao Shinde on 20 December, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 1397 OF 2005 (MOR)
C/W
REGULAR SECOND APPEAL NO. 1399 OF 2005 (MOR)
IN RSA NO. 1397 OF 2005:
BETWEEN:
1. SHRI. VITHOBA VIJAYRANGAN MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A. SHRI. SHASHIKANT S/O VITHOBA MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A(i) SMT. SAVITRI SHASHIKANT MADALIYAR,
AGE. 76 YEARS, OCC. HOUSEHOLD WORK,
R/O. "SHREE. PUSHPAM" GULMOHAR COLONY,
MIDC AREA, MIRAJ, DIST. SANGLI,
MAHARASHTA STATE-416416.
1B. CHANDRAKANT S/O VITHOBA MADALIYAR,
AGED ABOUT 80 YEARS, OCC: RAILWAY EMPLOYEES
(NOW RETIRED), R/O. Q.NO 126/A, RAILWAY QUARTERS,
BELGAUM.( NOW #24B, 6TH CROSS, SHASTRI NAGAR,
VIJAYALAKSHMI BELAGAVI-590001.)
M KANKUPPI
Digitally signed by
VIJAYALAKSHMI M
1C. MISS. SHALINI VITHOBA MADALIYAR,
KANKUPPI
Date: 2023.12.28 (SINCE DECEASED R/BY HER LR'S
16:13:06 +0530
APPELLANT NO.1A(i) TO 1D HEREIN)
1D. SHIRISH KUMAR S/O VITHOBA MUDALIAR,
AGED ABOUT 72 YEARS, OCC: DRIVER,
R/O. TIPPU SULTAN NAGAR, HUNCHANATTI
CROSS, PIRANWADI, BELGAUM( NOW BELAGAVI),
PIN CODE-590014.
2. SHRI. THARUNAKKARASU RAJARATHINAM MUDALIYAR,
SINCE DECEASED BY L.RS.(DEFENDANT NO.2)
R/BY THEIR GENERAL POWER OF ATTORNEY HOLDER
SHRI. CHANDRAKANT VITHOBA MUDALIAR,
AGE. 80 YEARS, OCC: SERVICE (NOW RETIRED),
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
R/O. RAILWAY QUARTERS NO.126/A, CAMP, BELGAUM.
(NOW #24B, 6TH CROSS, SHASTRI NAGAR),
BELAGAVI-590001.
2A. SMT. T. SAKUNTALA W/O SRI. R. THIRYANAVAKKARASU,
SINCE DECEASED AND HER L.RS ARE ALREADY ON
RECORD AS 2B AND RESPTS.NO.2 TO 6.
2B. T. VIJAY KUMAR S/O SHRI. R. THIRYANAVAKKARASU,
AGE. 70 YEARS, OCC: PRIVATE SERVICE,
NO.6, III EAST MAIN ROAD, GANDHI NAGAR,
VELLORE-632006, TAMIL NADU.
... APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SMT. MALLAPRABHA RAGHUNATHRAO SHINDE,
AGE. 71 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
2. SMT. SUREKHA D/O LATE RAGHUNATHRAO SHINDE,
AGE. 52 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
3. SMT. JYOTI D/O LATE RAGHUNATHRAO SHINDE,
AGE. 32 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
4. SMT. ASHWINI D/O LATE RAGHUNATHRAO SHINDE,
AGE. 30 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
5. SMT. RAJANI D/O LATE RAGHUNATHRAO SHINDE,
AGE . 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
6. KUMAR NAHA S/O CHANDRAKANT SHINDE,
AGE. 40 YEARS, OCC. STUDENT, R/O. 313,
KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
7. KUMARI NAVEETA D/O CHANDRAKANT SHINDE,
AGE. 37 YEARS, OCC. STUDENT,
R/O. 313, KHOLEKAR BUILDING,
S.P.M. ROAD, BELGAUM (NOW BELAGAVI),
PIN CODE-590001.
8. SMT. SHANTABAI W/O GUNDU SHINDE,
SINCE DECEASED BY HER L.RS.
AS RESPONDENTS NO.8(A)-(J) HEREIN.
8A. SHRI. AMAR MARUTI SHINDE,
AGE. 60 YEARS, OCC. BUSINESS,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8B. SHRI. SHRIPAD @ SHREEPATI MARUTI SHINDE,
AGE. 47 YEARS, OCC. BUSINESS,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8C. SMT. SUSHILA INDURAO MANE,
AGE. 59 YEARS, OCC. HOUSEHOLD WORK,
R/O. NEHARU NAGAR, BELGAUM (NOW BELAGAVI),
PIN CODE-590016.
8D. SMT. SUMITRA GUNDU SHINDE,
(SINCE DECEASED R/BY HER LR'S)
R8D(i) SMT. PRADNYA PARASHURAM PATIL,
AGE. 58 YEARS, OCC. SERVICE,
R/O. R.K. NAGAR, KOLHAPUR,
MAHARASHTRA-416013.
R8D(ii) SHRI. VINAY BALASAHEB MANWADKAR,
AGE. 60 YEARS, OCC. SERVICE,
R/O. SWAMI, VIVEKANANDA COLONY,
TILAKWADI, BELAGAVI-590006.
8E. SMT. SUBHADRA ANIL JADHAV,
AGE. 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. HOSUR, BASAVAN GALLI,
SHAHAPUR, BELGAUM (NOW BELAGAVI)
PIN CODE-590003.
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
8F. SMT. SULYA GOVINDRAO TENDULKAR,
AGE. 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. 6TH CROSS, NAZIR CAMP,
VADAGAON, BELGAUM (NOW BELGAVI),
PIN CODE-590005.
8G. SMT. RAJANI CHANDRAKANT SHINDE,
AGE. 57 YEARS, OCC. SERVICE,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8H. KUMARI. NAINA @ NEHA D/O CHANDRAKANT SHINDE,
AGE. 30 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8I. KUMARI. MENAXI @ NAVEETA D/O CHANDRAKANT
SHINDE, AGE. 27 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8J. SMT. SUGANDHA GUNDU SHINDE,
AGE. 40 YEARS, OCC. HOUSEHOLD WORK,
R/O. TARA-CHOWK, ICHALKARANJI,
DIST. KOLHAPUR, MAHARASHTRA STATE,
PIN CODE-416116.
9. SMT. S. PREMA W/O D. SAMPATH,
AGE. 56 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. D. SAMPATH (B.E.)
TAMILNADU ELECTRICITY BOARD,
NO.10, 2ND MAIN ROAD,
KORATTUR, CHENNAI TAMILNADU,
PIN CODE-600080.
10. SMT. T. RANI W/O B. SUBRAMANI,
AGE. 50 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. B. SUBRAMANI, REVENUE DEPARTMENT,
VELLORE, NO. O.S.M.O. KILL STREET KOSAPET,
VELLORE-632002.
11. SMT. K. CHANDIYA LAKSHMI W/O C. KAMALRAJ,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
R/O. C/O. C. KAMALRAJ S. RLY. CHENNAI,
NO.37, SOUTH JEGNATHA NAGAR,
VILLIVAKKAM, CHENNAI, PIN CODE-600049.
12. SMT. M. GEETA W/O N. MANI,
AGE. 46 YEARS, OCC. HOUSEHOLD WORK,
R/O. H. MANI TECHNICAL ASSISTANT, SHANKAR
CEMENTS, TALAVAI, POST ECHANKADU VIRUDHACHALAM
(VIA) TAMIL NADU, PIN CODE-606001.
13. SMT. R. MALATHI W/O RAVI,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. MR. RAVI, JUNIOR ASSISTANT,
COMMERCIAL TAX NO.6, EAST MAIN ROAD,
GANDHI NAGAR, VELLORE-632006,
TAMILNADU.
14. SMT. KAVITA KISHOR SHINDE,
AGE. 65 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
15. MISS. ANAGHA D/O. KISHOR SHINDE,
AGE. 29 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
... RESPONDENTS
( R1 TO R4 ARE SERVED;
R5 TO R7, R8 (G,H,I)- SRI. DEEPAK C. MAGANUR, ADVOCATE;
R8(A)(i) SERVED; R8(A)(ii) & R8(A)(iii) ARE MINORS & R/BY
R8(A)(i);
FOR R8(B)-SRI. SHRIVATSA S. HEGDE, ADVOCATE;
R8(C) SERVED; FOR R8(D,E,F & J)-SRI. D. RAVI KUMAR GOKAKKAR,
ADVOCATE; FOR R9 TO R13-SMT.VIDYA IYER & SRI. RAGHAVENDRA
RAO ADVOCATES; FOR R14 & R15 AND R1(D)(i) & R1(D)(ii)- SHRI.
SANGRAM S. KULKARNI, ADVOCATE)
THIS RSA IS FILED U/O 42 R 1 R/W SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DTD. 21.3.2005 PASSED IN
R.A.NO.74/1999 ON THE FILE OF THE III ADDL.CIVIL JUDGE
(SR.DN.), BELGAUM, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD. 17.11.1998 PASSED IN OS
NO.495/1990 ON THE FILE OF THE IV ADDL.CIVIL JUDGE (JR.DN.),
BELGAUM.
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
IN RSA NO. 1399 OF 2005:
BETWEEN:
1. SHRI. VITHOBA VIJAYRANGAN MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A. SHRI. SHASHIKANT S/O VITHOBA MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A(i) SMT. SAVITRI SHASHIKANT MADALIYAR,
AGE. 76 YEARS, OCC. HOUSEHOLD WORK,
R/O. "SHREE. PUSHPAM" GULMOHAR COLONY,
MIDC AREA, MIRAJ, DIST. SANGLI,
MAHARASHTA STATE-416416.
1B. CHANDRAKANT S/O VITHOBA MADALIYAR,
AGED ABOUT 80 YEARS, OCC: RAILWAY EMPLOYEES
(NOW RETIRED), R/O. Q.NO 126/A, RAILWAY QUARTERS,
BELGAUM.( NOW #24B, 6TH CROSS, SHASTRI NAGAR,
BELAGAVI-590001.)
1C. MISS. SHALINI VITHOBA MADALIYAR,
(SINCE DECEASED R/BY HER LR'S
APPELLANT NO.1A(i) TO 1D HEREIN)
1D. SHIRISH KUMAR S/O VITHOBA MUDALIAR,
AGED ABOUT 72 YEARS, OCC: DRIVER,
R/O. TIPPU SULTAN NAGAR, HUNCHANATTI
CROSS, PIRANWADI, BELGAUM( NOW BELAGAVI),
PIN CODE-590014.
2. SHRI. THARUNAKKARASU RAJARATHINAM MUDALIYAR,
SINCE DECEASED BY L.RS.(DEFENDANT NO.2)
R/BY THEIR GENERAL POWER OF ATTORNEY HOLDER
SHRI. CHANDRAKANT VITHOBA MUDALIAR,
AGE. 80 YEARS, OCC: SERVICE (NOW RETIRED),
R/O. RAILWAY QUARTERS NO.126/A, CAMP, BELGAUM.
(NOW #24B, 6TH CROSS, SHASTRI NAGAR),
BELAGAVI-590001.
2A. SMT. T. SAKUNTALA W/O SRI. R. THIRYANAVAKKARASU,
SINCE DECEASED AND HER L.RS ARE ALREADY ON
RECORD AS 2B AND RESPTS.NO.2 TO 6.
2B. T. VIJAY KUMAR S/O SHRI. R. THIRYANAVAKKARASU,
AGE. 70 YEARS, OCC: PRIVATE SERVICE,
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
NO.6, III EAST MAIN ROAD, GANDHI NAGAR,
VELLORE-632006, TAMIL NADU.
... APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SMT. SHANTABAI W/O GUNDU SHINDE,
SINCE DECEASED BY HER L.RS.
AS RESPONDENTS NO.1(A) TO 1(J).
1A. SHRI. AMAR MARUTI SHINDE,
AGE. 60 YEARS, OCC. PRIVATE WORK,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
-590001.
1B. SHRIPAD @ SHREEPATI MARUTI SHINDE,
AGE. 47 YEARS, OCC. PRIVATE WORK,
R/O. 4464, CHAVAT GALLI,
BELGAUM NOW BELAGAVI)
590001.
1C. SMT. SUSHILA INDURAO MORE,
AGE. 59 YEARS, OCC. HOUSEHOLD WORK,
R/O. NEHARU NAGAR, BELGAUM NOW BELAGAVI,
-590012.
1D. SMT. SUMITRA GUNDU SHINDE,
(SINCE DECEASED R/BY HER LR'S
AS R1(D)(i) & R1D(ii)).
R1D(i) SMT. PRADNYA PARASHURAM PATIL,
AGE. 58 YEARS, OCC. SERVICE,
R/O. R.K. NAGAR, KOLHAPUR,
MAHARASHTRA-416013.
R1D(ii) SHRI. VINAY BALASAHEB MANWADKAR,
AGE. 60 YEARS, OCC. SERVICE,
R/O. SWAMI, VIVEKANANDA COLONY,
TILAKWADI, BELAGAVI-590006.
1E. SMT. SUBHADRA ANIL JADHAV,
AGE. 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. HOSUR, BASAVAN GALLI,
SHAHAPUR, BELGAUM NOW BELAGAVI
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
590003.
1F. SMT. SULYA GOVINDRAO TENDULKAR,
AGE. 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. 6TH CROSS, NAZIR CAMP,
VADAGAON, BELGAUM NOW BELGAVI,
590005.
1G. SMT. RAJANI CHANDRAKANT SHINDE,
AGE. 57 YEARS, OCC. SERVICE,
R/O. 4464, CHAVAT GALLI,
BELGAUM, NOW BELAGAVI,
-590001.
1H. KUMARI. NAINA @ NEHA D/O CHANDRAKANT SHINDE,
AGE. 30 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAVI, NOW BELAGAVI,
-590002.
1I. KUMARI. MEENAXI @ NAVEETA D/O CHANDRAKANT
SHINDE, AGE. 27 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAVI, NOW BELAGAVI,
PIN CODE-590002.
1J. SMT. SUGANDHA GUNDU SHINDE,
AGE. 40 YEARS, OCC. HOUSEHOLD WORK,
R/O. TARA-CHOWK, ICHALKARANJI,
DIST. KOLHAPUR, MAHARASHTRA STATE,
PIN CODE-416115.
2. SMT. S. PREMA W/O D. SAMPATH,
AGE. 56 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. D. SAMPATH (B.E.)
ASSISTANT DIVISIONAL ENGINEER,
TAMILNADU ELECTRICITY BOARD,
NO.10, 2ND MAIN ROAD,
KORATTUR, CHENNAI TAMILNADU,
PIN CODE-600080.
3. SMT. T. RANI W/O B. SUBRAMANI,
AGE. 50 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. B. SUBRAMANI, REVENUE DEPARTMENT,
VELLORE, NO.9 O.S.M.O. KILL STREET KOSAPET,
VELLORE-632002. TAMILNADU
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
4. SMT. K. CHANDIYA LAKSHMI W/O C. KAMALRAJ,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. C. KAMALRAJ S. RLY. CHENNAI,
NO.37, SOUTH JAGNATHA NAGAR,
VILLIVAKKAM, CHENNAI -40.
5. SMT. M. GEETA W/O N. MANI,
AGE. 46 YEARS, OCC. HOUSEHOLD WORK,
R/O. H. MANI TECHNICAL ASSISTANT, SHANKAR
CEMENTS, THALAVAI, POST ECHANKADU
VIRUDHACHALAM (VIA) TAMIL NADU, PIN CODE-606001.
6. SMT. R. MALATHI W/O RAVI,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. MR. RAVI, JUNIOR ASSISTANT,
COMMERCIAL TAX NO.6, EAST MAIN ROAD,
GANDHI NAGAR, VELLORE-632006,
TAMILNADU.
7. SMT. KAVITA KISHOR SHINDE,
AGE. 64 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
8. MISS. ANAGHA D/O. KISHOR SHINDE,
AGE. 29 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
... RESPONDENTS
( R1(A) DECEASED;
R1A(i) SERVED; R1A(ii) & R1A(iii) ARE MINORS & R/BY R1A(i);
FOR R1(B)-SRI. SHRIVATSA S. HEGDE, ADVOCATE;
R1(C) SERVED; FOR R1(D)(i), R1(D)(ii) & R7 & R8-SRI. SANGRAM
S. KULKARNI, ADVOCATE; FOR R2 & R6 SRI. RAGHAVENDRA RAO &
SMT. VIDYA IYER, ADVOCATES; R3 SERVED; R4 & R5 ARE SERVED)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT
& DECREE DTD. 21.3.2005 PASSED IN R.A.NO.75/1999 ON THE FILE
OF THE III ADDL.CIVIL JUDGE (SR.DN.), BELGAUM, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD.
17.11.1998 PASSED IN OS NO.644/1993 ON THE FILE OF THE IV
ADDL.CIVIL JUDGE (JR.DN.), BELGAUM.
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.1397/2005 is filed praying to set aside the
judgment and decree dated 21.03.2005 passed by the
learned III Additional Civil Judge (Senior Division), Belgaum,
in RA No.74/1999 confirming the judgment and decree dated
17.11.1998 passed by the learned IV Additional Civil Judge
(Junior Division), Belgaum, in O.S. No.495/1990 and to
decree the suit in O.S. No.495/1990.
2. RSA No.1399/2005 is filed praying to set aside
the judgment and decree dated 21.03.2005 passed by the
learned III Additional Civil Judge (Senior Division), Belgaum,
in RA No.75/1999 confirming the judgment and decree
dated 17.11.1998 passed by the learned IV Additional Civil
Judge (Junior Division), Belgaum, in O.S. No.644/1993 and
to dismiss O.S. No.644/1993.
3. The appellants in RSA No.1397/2005 are the legal
representatives of plaintiff Nos.1 and 2 in O.S. No.495/1990
and respondent Nos.1 to 4 are defendant Nos.1 to 4,
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respondent Nos.5 to 7 are the legal heirs of defendant No.5
and respondent No.8 is defendant No.6 and respondent
Nos. 9 to 13 are the other legal heirs of plaintiff No.2.
4. The appellants in RSA No.1399/2005 are the legal
heirs of defendant Nos.1 and 2 and respondent Nos.1 to 6
are the legal representatives of the plaintiff in O.S.
No.644/1993.
5. Defendant No.6 in O.S. No.495/1990 has filed
suit in O.S. No.644/1993 against the plaintiff Nos.1 and 2 in
O.S. No.495/1990. Defendant No.5 in O.S. No.495/1990 is
son of the plaintiff in O.S. No.644/1993. Therefore, the
parties will be referred to as per their ranking in O.S.
No.495/1990.
6. The suit in O.S. No.495/1990 is filed seeking
redemption of mortgage dated 15.02.1960. The said
mortgage deed dated 15.02.1960 is executed by the
plaintiffs in favour of one Raghunathrao Shinde. The said
Raghunathrao Shinde has advanced loan of Rs.2,000/- to
Plaintiff Nos.1 and 2 for which the said mortgage deed has
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been executed. Defendant Nos.1 to 4 are the wife and
children of said Raghunathrao Shinde and defendant No.5 is
Uncle's son of Raghunathrao Shinde. Defendant No.6 is
uncle's wife of Raghunathrao Shinde. The name of uncle of
Raghunathrao Shinde is Gundu Ravalu Shinde. The property
mortgaged under the mortgage deed dated 15.02.1960 is
the suit property i.e., a house and open space bearing CTS
No.4464 of Chavat Galli, Belgaum, having the following
boundaries:
To East: House and open space of Sri. Late
Ranganathrao Mudaliyar,
CTS Nos.4465 and 4771/A-28
To West: Bole and beyond that with house property
and open space of late Bedake
CTS 4419
To North: Road
To South: Road
7. The said mortgage amount of Rs.2,000/- is
deposited in the Court in the said suit. The said suit is filed
on 31.05.1990. The defendants are in possession of the
mortgaged property. The plaintiffs have sought redemption
of the said mortgage. Defendant Nos.5 and 6 were made as
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parties to the suit, as they were residing in the mortgaged
property.
8. Defendant Nos.1 to 4 in their written statement
have contended that mortgage was for 5 years from
15.02.1960 to 14.02.1965 in the name of late
Raghunathrao Shinde and the plaintiffs/mortgagers failed to
get redeemed the mortgage in spite of intimation given to
them personally by late Raghunathrao Shinde in the year
1966 many a times. Defendant Nos.1 to 4 contended that
in the year 1967, the joint family of mortgagees did not
continue jointly and in the partition dated 08.07.1967, to
the knowledge of the plaintiff, the mortgaged property was
allotted to the share of father of defendant No.5 and since
then, they are in possession of the said property as owners
in adverse possession from 1966. Defendant Nos.1 to 4
gave reply to legal notice dated 29.03.1990 stating that the
plaintiffs cannot seek possession of the suit property. They
contended that the suit is barred by limitation and the
plaintiffs have lost the right to claim the possession of the
suit property. Defendant Nos.1 to 4 who are in possession
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of the suit property became owners of it by adverse
possession as per the terms and conditions of the mortgage
deed and prayed for dismissal of the suit.
9. Defendant Nos.5 and 6 in their written statement
contended that the plaintiffs are aware of agreement of sale
with regard to the suit property with the father of defendant
No.5 and husband of defendant No.6 and in order to avoid
the execution of the sale deed in favour of defendant Nos.5
and 6 and to defeat their title, the suit for redemption has
been filed. Defendant Nos.5 and 6 have admitted that the
suit property was in possession of the defendants as tenants
prior to mortgage deed dated 15.02.1960. They also
admitted the fact that the mortgage was effected in favour
of late Raghunathrao Shinde. They contended that the
plaintiffs had knowledge of the partition effected in the joint
family of defendants in the year 1967 and allotment of suit
property to the share of defendant Nos.5 and 6 and they
began to reside in the suit property. They contend that the
plaintiffs who were in frequent need of money took
Rs.1,500/- on 19.04.1966 from defendant Nos.5 and 6
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when their family were joint. They contend that the
plaintiffs were not in a position to make payment of the
amount of Rs.2,000/-. They took Rs.1,500/- on 19.04.1966
and entered into agreement of sale in respect of said
mortgaged property with Gundu Ravalu Shinde-father of
defendant No.5 and husband of defendant No.6 on
12.04.1973 and under the said sale agreement, conferred
possession of mortgaged property to defendant Nos.5 and 6
as absolute owners in possession. The plaintiffs agreed to
sell the suit property for a sum of Rs.15,000/- and in
advance, they received a sum of Rs.3,000/- on the date of
agreement of sale and in all the plaintiffs have received
Rs.6,500/- i.e mortgaged amount of Rs.2,000/-, Rs.1,500/-
on 19.04.1966 and earnest amount of Rs.3,000/- on
12.04.1973 and these facts are specifically mentioned in the
agreement of sale. They contend that the remaining
amount was to be paid at the time of final sale deed. They
contend, that since the date of agreement of sale, the
defendants are enjoying the suit property as absolute
owners in possession and not in the capacity of mortgagee
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in possession. They contend that Gundu Ravalu Shinde
requested the plaintiffs to execute the sale deed in their
favour when they used to visit his house and plaintiffs went
on postponing on one or the other ground. With these, they
prayed for dismissal of the suit.
10. Defendant No.6 in O.S. No.495/1990 reiterating
the contentions taken up in the written statement has filed
the suit in O.S. No.644/1993 seeking relief of specific
performance based on the agreement of sale dated
12.04.1973. The plaintiffs in O.S. No.495/1990 were
defendants Nos.1 and 2 in O.S. No.644/1993. In their
written statement filed in the suit, they denied execution of
agreement of sale and other contentions of the plaintiffs of
that suit.
11. The suit filed by the plaintiff in O.S. No.495/1990
after trial came to be dismissed on the ground that the
mortgage period was for 5 years and the plaintiffs failed to
file a suit for redemption in that period of 5 years and
therefore the plaintiffs are not entitled for relief of
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redemption of the mortgage and that defendant Nos.1 to 4
have become owners by adverse possession.
12. The suit in O.S. No.644/1993 filed for the relief of
specific performance came to be decreed directing
defendant Nos.1 and 2 to execute the sale deed in terms of
the agreement of sale dated 12.04.1973 in favour of the
plaintiff-Shantabai. The plaintiffs aggrieved by the judgment
and decree in both the suits, filed appeals in R.A.
No.74/1999 and RA.75/1999 respectively and both the
appeals came to be dismissed confirming the judgments and
decrees passed by the trial Court.
13. Aggrieved by the judgments and decrees passed
by the trial Court and the first appellate Court, the present
two appeals are filed. Both the appeals came to be
admitted to consider the following substantial question of
law:
"Whether in the facts and circumstances of the case,
the judgment of the lower appellate Court is perfunctory
and against the spirit of Order 41 Rule 31 of CPC and
hence it is unsustainable?
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14. After hearing the arguments on both sides, the
following additional substantial question of law have been
framed:
Whether the trial Court and the first appellate Court
are justified in holding that defendant Nos.1 to 4 have
become owners of the suit schedule property by adverse
possession even though the suit is held to be filed within
the limitation and in dismissing the suit for redemption?
Whether the trial Court and the first appellate Court are
justified in answering issue No.5 in the negative, even
though, the suit is filed after three years of period of
limitation from the date of service of suit summons on
defendants in O.S. No.495/1990?
15. Heard the arguments of the learned counsel for
the parties on the above substantial questions of law and
additional substantial question of law.
16. The learned counsel for the appellants would
contend that the limitation for filing a suit for redemption is
30 years as per Article 61 of the Limitation Act 1963. He
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contends that the date of mortgage is 15.02.1960 and the
period of mortgage is 5 years and the suit filed on
31.05.1990 and therefore, the limitation to file the suit for
redemption commences after 5 years. Therefore, the suit
filed on 31.05.1990 is within the period of limitation from
15.02.1965. He contends that once a mortgage is always a
mortgage. The trial Court and the first appellate Court,
without considering that the defendants are in possession of
the mortgaged property under the mortgage deed-Ex.P-12
have erred in holding that defendants are in adverse
possession of the mortgaged property. He further
contended that even though the mortgaged property is
allotted to the share of Gundu Ravalu Shinde in the partition
deed dated 08.07.1967-Ex.P.4 that does not deprive the
right of the plaintiff in seeking redemption of the mortgage.
He contended that, for the sake of arguments, even if it is
held that Ex.P-2-agreement to sell dated 12.04.1973 is
proved but the said suit for specific performance in O.S.
No.644/1993 is filed on 16.06.1993, after three years of
receiving the suit summons by defendant Nos.5 and 6 in
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O.S. No.495/1990 and therefore, it is barred by limitation
under Article 54 of the Limitation Act. The cause of action
stated in the O.S. No.644/1993 is when the plaintiff in that
suit came to know of filing the suit in O.S. No.495/1990
stating that they came to know regarding filing of the suit
on 11.07.1990 but the suit summons have been served on
them on 10.06.1990. If the limitation is calculated from the
date of service of summons on defendant Nos.5 and 6 i.e.
10.06.1990, the suit O.S. No.644/1990 is filed on
16.06.1993 is beyond the period of limitation. There is no
notice issued prior to filing of the suit seeking relief of
specific performance to the defendants. Without considering
these aspects, the trial Court and the first appellate Court
have erroneously decreed the suit for specific performance.
17. The learned counsel for the plaintiff in the suit for
specific performance and defendants in the suit for
redemption of mortgage, has contended that by evidence of
the scribe and witnesses to sale agreement-Ex.P-2-the
execution of agreement to sell by the mortgager in favour of
Gundu Ravalu Shinde has been proved. He contended that
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no time is fixed for performance of said sale agreement and
therefore, the suit is filed within three years when the
owners denied the sale agreement. The mortgage property
has been allotted to the share of Gundu Ravalu Shinde in
the partition deed dated 08.07.1967 and by virtue of sale
agreement Ex.P-2, wife of Gundu Ravalu Shinde is entitled
for relief of specific performance. They contended that the
suit for redemption of mortgage is not maintainable in view
of the sale agreement. Considering all these aspects, the
trial Court and the first appellate Court have rightly
dismissed the suit for redemption of mortgage and decreed
the suit for specific performance.
18. The suit for redemption of the mortgage-deed
Ex.P-12 dated 15.06.1960 has been filed on 31.05.1990.
The period of the said mortgage is 5 years and mortgage
was due on 15.02.1965. The mortgagee was in possession
of the mortgaged property. The mortgagee did not file any
suit for foreclosure from 15.02.1965 till filing of the suit for
redemption by the mortgager.
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19. As per Article 61 of the Limitation Act, the period
of limitation is 30 years from the date when the right to
redeem or to recover possession accrues. Right to redeem
and to recover possession accrues on 15.02.1965 i.e. after 5
years of the mortgage period. Considering the said aspect,
the trial Court while answering issue No.2 has rightly held
that the suit is not barred by limitation. Even though the
trial Court having held that the suit is not barred by
limitation and is filed within the period of limitation, has held
that the defendants have become owners by adverse
possession. The defendants are in possession of the suit
property as mortgagees. Once a mortgage is always a
mortgage. Mortgagee in possession will not acquire title to
the mortgaged property. Even the possession of the
defendants in the suit property is in the capacity of
mortgagee and not adverse to the interest of owners i.e.
mortgagors. Therefore, the trial Court and the first
appellate Court have erred in holding that the defendants
have become owners of the suit property by adverse
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possession. Hence, Additional substantial question of law is
answered accordingly.
20. Agreement of sale Ex.P-2 is dated 05.04.1973.
Considering the evidence of the scribe and the witnesses to
sale agreement, the trial Court and the first appellate Court
have held that the plaintiffs have proved the agreement to
sell-Ex.P-2. The said agreement to sell is dated 12.04.1973
and the suit for specific performance is filed on 16.06.1993.
The said suit is filed after 20 years from the date of
agreement to sell. No date is fixed for performance of that
contract. The agreement holders i.e. Gundu Ravalu Shinde
or his wife and children did not get issued any notice to the
owner of the property asking him to execute the sale deed.
Even prior to filing of the suit in O.S. No.644/1993, the
plaintiffs have not got issued any notice to the defendants
asking them to execute the sale deed. The cause of action
mentioned in O.S. No.644/1993 for specific performance is
as under:
"cause of action for the suit arose on 11.07.1990 when
the plaintiff was served with suit summons in O.S.
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495/1990 which is pending on the file of the learned IV
Additional Munsiff Court, Belgavi filed by the
defendants."
21. The plaintiff-Shantabai wife of Gundu Ravalu
Shinde is defendant No.6 and Chandrakant son of Gundu
Ravalu Shinde is defendant No.5 in O.S. No.495/1990.
22. A perusal of the records in O.S.No.495/1990.
Defendant No.5-Chandrakant Gundu Shinde has received
suit summons for himself and his mother i.e. defendant
No.6 Shantabai wife of Gundu Shinde on 10.06.1990. On
perusal of the copy of the suit summons issued to defendant
Nos.5 and 6 in O.S. No.495/1990, the date of appearance
for them in the suit is 11.07.1990. The suit summons is
served on them along with the copy of the plaint and there
is an endorsement made in that regard by defendant No.5
on the back of the suit summons. On 11.07.1990,
defendant Nos.5 and 6 have appeared through their counsel
in the suit O.S. No.495/1990. Therefore, the plaintiff in
O.S. No.644/1993 namely Shantabai and her son
Chandrakant Gundu Shinde have come to know about filing
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of the suit by the mortgagors on 10.06.1990 and it should
be the date of cause of action and not the date of their
entering appearance i.e. 11.07.1990 as pleaded by them in
para 5 of the plaint.
23. Article 54 of the Limitation Act reads as under:
Description of suit Period of Time form which
limitation period begins to
run
54. For specific Three years The date fixed for
performance of a the performance,
contract or, if no such
date is fixed,
when the plaintiff
has notice that
performance is
refused
24. As the date is not fixed for performance under
sale agreement Ex.P-2 dated 12.04.1973, the period of
limitation begins to run when the plaintiff has noticed
performance is refused.
25. According to the plaintiff, suit summons has been
served on 11.07.1990. On perusal of the suit summons, the
suit summons has been served in O.S. No.495/1990 on
defendant Nos.5 and 6 on 10.06.1990 and not on
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11.07.1990. Therefore, the period of limitation has to be
reckoned from 10.06.1990. The suit O.S.No.644/1993 is
filed on 16.06.1993. i.e. more than three years from
10.06.1990. Therefore, the said suit seeking relief of
specific performance of contract filed in O.S. No.644/1993 is
barred by limitation. Without considering this aspect, the
trial Court and the first appellate Court erred in holding that
the suit for specific performance is filed within the period of
limitation. Hence, the substantial question of law and
additional substantial question of law are answered
accordingly.
26. In view of the above, the suit in O.S.
No.644/1993 filed for the relief of specific performance of
agreement of sale dated 12.04.1973 requires to be
dismissed and the suit in O.S. No.495/1990 filed for the
relief of redemption of mortgage requires to be decreed.
27. In the result, the following:
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ORDER
RSA No.1397/2005 and RSA No.1399/2005 are
allowed. The judgment and decrees passed in O.S.
Nos.495/1990, 644/1993, RA No.74/1999 and 75/1999 are
set aside. The suit in O.S. No.495/1990 is decreed. The
defendants and their legal representatives are directed to
handover the vacant possession of the suit schedule property
to the plaintiffs/the legal representatives of the plaintiffs
within a period of three months. The defendants/legal
representatives of the defendants are entitled to receive the
mortgage amount of Rs.2,000/- deposited by the plaintiffs in
the Court.
The suit in O.S. No.644/1993 is dismissed. The
plaintiffs are entitled for refund of the earnest money of
Rs.4,500(Rs.6,500 - Rs.2,000/-).
Draw the decrees in O.S. No.495/1990 and O.S.
No.644/1993 accordingly.
Sd/-
JUDGE
KMV
CT:BCK
