Karnataka High Court
Shri. Siddaraju vs Shri. N. Suresh on 21 December, 2023
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NC: 2023:KHC:46840
RSA No. 1371 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1371 OF 2022 (RES)
BETWEEN:
NANJUNDASHETTY
DEAD BY LRS
1. SMT. CHIKKATHAYAMMA,
W/O LATE NANJUNDASHETTY,
AGED ABOUT 53 YEARS
2. SMT RATHNAMMA
D/O LATE NANJUNDASHETTY,
AGED ABOUT 36 YEARS
3. SRI MAHADEVASWAMY
S/O LATE NANJUNDASHETTY,
Digitally AGED ABOUT 34 YEARS
signed by
CHAITHRA A
ALL ARE RESIDING AT UPPARA STREET,
Location:
HIGH BANDIGERE VILLAGE,
COURT OF CHAMARAJANAGAR TOWN-571313.
KARNATAKA ...APPELLANTS
(BY SMT. VAKKUND SONATAI GANAPATRAO, ADVOCATE)
AND:
SRI. N. SURESH
S/O LATE N NAGESH RAO,
AGED ABOUT 57 YEARS,
RESIDING AT 1ST CROSS,
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RSA No. 1371 of 2022
BRAMARAMBHA EXTENSION,
CHAMARAJANAGAR-571313.
...RESPONDENT
(BY SRI. PRITHVI RAJ B N, ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 23.06.2022
PASSED IN RA.No.97/2015 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, CHAMARAJANAGARA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 27.08.2015 PASSED IN OS No.51/2012
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC
CHAMARAJANAGAR.
THIS APPEAL, COMING ON FOR ADMISSIOIN, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is by defendant who
has challenged the judgments rendered by both the Courts
wherein plaintiff's suit seeking redemption of mortgage is
decreed by both the Courts.
2. For the sake of brevity, the parties are referred
to as per their rank before the trial Court.
3. The facts leading to the case are as under:
Plaintiff has instituted suit in O.S.No.51/2012 seeking
redemption of mortgage. Plaintiff claimed that plaintiff
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and his mother availed a hand loan of Rs.2,00,000/- and
mortgaged the suit schedule property in favour of
defendant through registered mortgage deed dated
29.07.2002 and delivered possession of the suit schedule
properties to the defendant. Plaintiff further alleged that
period of mortgage is six years and same expired on
29.07.2008. Plaintiff further pleaded that his mother
passed away and he being a sole survivor has become
absolute owner of the suit schedule property and after
expiry of mortgage period, plaintiff called upon the
defendant to accept the mortgage amount and redeem the
mortgage. Inspite of repeated request, defendant failed to
execute redemption of mortgage and this compelled
plaintiff to issue notice on 09.01.2012 calling upon the
defendant to discharge the mortgage by accepting
mortgaged amount. Since defendant issued a reply notice
on untenable grounds, suit is filed seeking redemption of
mortgage.
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4. Defendant, on receipt of summons, tendered
appearance and filed written statement and stoutly denied
the entire averments made in the plaint. The defendant
on the contrary claimed that he is in possession of the
property much prior to alleged transaction and claimed
that his father was in continuous possession and
enjoyment for more than 60 years. Defendant claimed
that his father has paid Rs.30,00,000/- to the plaintiff's
father and therefore, plaintiff's father in presence of his
mother has executed a panchayath agreement dated
29.07.2002 acknowledging defendant's father's possession
over the suit schedule property and under the said
agreement, plaintiff agreed to sell the suit schedule
property. Disputing the mortgage transaction, defendant
sought for dismissal of the suit.
5. Plaintiff and defendant to substantiate their
respective claim have let in oral and documentary
evidence. Plaintiff while seeking redemption of mortgage
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has produced the original mortgage deed which is marked
at Ex.P-8.
6. Defendant who has seriously disputed alleged
mortgage transaction and since plaintiff has disputed
agreement set up by defendant, while cross-examining the
plaintiff, confronted the agreement dated 22.08.2013 and
since plaintiff has admitted the agreement dated
22.08.2013, the same was marked at Ex.D-1.
7. Trial Court having assessed oral and
documentary evidence let in by rival parties, answered
issue Nos.1 to 5 in the affirmative. While answering issue
No.1 in the affirmative, trial Court held that plaintiff has
succeeded in proving that he along with his mother
borrowed a sum of Rs.2,00,000/- from defendant and
mortgaged the suit schedule property by executing
registered mortgage deed dated 29.07.2002. While
answering issue Nos.3 and 4 in the affirmative, trial Court
held that defendant inspite of legal notice has declined to
execute discharge mortgage deed and therefore, plaintiff
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is entitled for relief sought in the plaint. Consequently,
suit is decreed.
8. Defendant feeling aggrieved by the judgment
and decree of the trial Court preferred appeal before the
appellate Court.
9. Appellate Court as a final fact finding authority
has independently assessed oral and documentary
evidence and has also given its due consideration to the
pleadings of the rival parties. While reassessing the entire
evidence on record, appellate Court has taken cognizance
of the agreement relied on by the defendant which is
marked at Ex.D-1. Referring to Ex.D-1, appellate Court
was of the view that even if agreement set up by
defendant is proved that will not take away the right of
plaintiff in seeking redemption of mortgage.
10. Appellate Court placed reliance on the judgment
rendered by the Punjab and Haryana High Court in the
case of Ram Kishan and Others vs. Sheo Ram and
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Others reported in AIR 2008 P&H 77. Referring to the
principles therein, appellate Court was of the view that
where no time limit is fixed to seek redemption, the right
to seek redemption would arise not on the date of
mortgage but would arise when the mortgagor pays or
tenders to the mortgagee or deposits in the Court, the
mortgage money. Appellate Court also placing reliance on
the said judgment held that once a mortgage is always a
mortgage and is always redeemable. On independent
assessment, appellate Court proceeded to confirm the
reasons and conclusions recorded by the trial Court.
Consequently, appeal is dismissed. These concurrent
judgments are under challenge.
11. Learned counsel appearing for the defendant
reiterating the grounds would vehemently argue and
contend that plaintiff is liable to be non-suited as he has
not examined any witness to substantiate the due
execution of the alleged mortgage transaction. She would
contend that since defendant has stoutly denied the very
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mortgaged transaction, it was incumbent on the part of
plaintiff to examine one witness to substantiate the
genuineness of mortgage transaction. Reliance is placed
on the judgment rendered by the coordinate Bench in the
case of Syndicate Bank vs. M. Sivarudrappa and
Others1. Referring to the principles laid down by
coordinate Bench, she would point out that if attesting
witness is not examined, more particularly when the other
party has disputed the very mortgage transaction, both
the Courts erred in decreeing the suit. On this sole count,
she would point out that the findings and conclusions
recorded by both the Courts suffer from serious perversity
and therefore, substantial question of law would arise for
consideration in the light of principles laid down by the
coordinate Bench in the judgment cited supra.
12. On the contrary, learned counsel appearing for
the plaintiff would counter the proposition canvassed by
the learned counsel appearing for the defendant. He
ILR 2003 Kar 908
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would point out that the fact that defendant has set up an
agreement which was confronted and marked at the
instance of plaintiff in cross-examination as Ex.D-1, it
indirectly leads to admission of a mortgage transaction.
He would equally counter the arguments canvassed by the
learned counsel for defendant in regard to alienation of
other land covered under the very same transaction. He
would say that the said defence is not available to the
defendant as defendant has signed as a consenting party
to the sale deed. Therefore, he would point out that even
if the other item of mortgage transaction was sold, it was
sold after securing possession from defendant and
defendant being a consenting witness to the said sale
transaction, is clearly estopped from disputing not only
mortgage transaction but the right of plaintiff to seek
redemption.
13. Heard learned counsel appearing for the
defendant and learned counsel appearing for the plaintiff.
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14. The short point that needs consideration is as to
whether plaintiff is entitled to seek redemption of
mortgage having failed to examine the attesting witness
as there is serious challenge by defendant questioning the
very mortgage transaction. My answer is emphatically
'No'.
15. Though defendant has seriously disputed the
mortgage transaction and a specific contention is taken in
the written statement, however, during trial, defendant
having set up a contemporaneous document dated
22.08.2013, which is marked at Ex.D-1, would clinch the
entire controversy. Under the agreement dated
22.08.2013, defendant has claimed that plaintiff on the
same day has executed an agreement agreeing to sell the
land which was already mortgaged to the defendant on the
same day. If the recitals of the agreement refer to a
mortgage transaction, mere denial in the written
statement would be of no avail to defendant. If defendant
by setting up an agreement dated 22.08.2013 has
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indirectly acknowledged and admitted the mortgage
transaction, the principle laid down by this Court in the
above cited judgment is not applicable. The facts in the
present case on hand are totally different. The defendant
by setting up an agreement has virtually admitted the
mortgage transaction. Therefore, I am of the view that
both the Courts were justified in decreeing the suit and
thereby ordering redemption of mortgage. Both the
Courts were justified in directing defendant to receive the
mortgage amount and execute redemption mortgage in
favour of plaintiff.
16. No substantial question of law arises for
consideration. Accordingly, appeal is dismissed.
Sd/-
JUDGE
CA
