Sri. D Suresh vs Smt. Smithaprasad
2023 Latest Caselaw 2452 Kant

                                                 -1-
                                                           RSA No. 2191 of 2016




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 22ND DAY OF MAY, 2023

                                               BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI

                           REGULAR SECOND APPEAL NO. 2191 OF 2016 (DEC)

                      BETWEEN:
                      1.    SRI. D SURESH
                            AGED ABOUT 55 YEARS,
                            S/O LATE SRI DASAPPA,
                            R/OF PORTION OF D.NO.470, 470/1, 470/2,
                            4TH MAIN, POSTAL COLONY, INDUSTRIAL SUBURB,
                            VIDYARANYAPURAM,
                            MYSURU - 570 012.

                      2.    SMT. PREMA
                            AGED ABOUT 45 YEARS,
                            W/O SRI D SURESH,
                            R/OF PORTION OF D.NO.470, 470/1, 470/2,
                            4TH MAIN, POSTAL COLONY, INDUSTRIAL SUBURB,
                            VIDYARANYAPURAM,
                            MYSURU - 570 012.
Digitally signed by
THEJASKUMAR N
Location: HIGH
COURT OF                                                          ...APPELLANTS
KARNATAKA
                      (BY SRI.KESHAV KUMAR, ADVOCATE FOR
                          SRI. SHRIKARA P K.,ADVOCATE)

                      AND:

                      1.    SMT. SMITHAPRASAD
                            AGED ABOUT 37 YEARS,
                            W/O T.NARAYANAPRASAD,
                            R/AT D.NO/251, 21ST MAIN,
                            21ST CROSS, J.P.NAGAR, MYSORE,
                            REPRESENTED BY HER GENERAL POWER OF
                            ATTORNEY HOLDER
                            SRI.T.NARAYANAPRASAD,
                               -2-
                                         RSA No. 2191 of 2016




    AGED 50 YEARS,
    S/O THIMMAIAH,
    R/AT D.NO/251, 21ST MAIN,
    21ST CROSS, J.P.NAGAR,
    MYSORE.
                                                 ...RESPONDENT
(BY SRI.SWAMY M.M., ADVOCATE FOR C/R)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., 1908, SEEKING CERTAIN RELIEFS.

     THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Sri.Keshav Kumar., learned counsel on behalf of

Sri.Shrikara P.K., for appellants and Sri.M.M.Swamy, learned

counsel for respondent have appeared in person.

2. This appeal is from the Court of VII Additional

District Judge, Mysuru.

3. For the sake of convenience, the status of the

parties is referred to as per their rankings before the Trial

Court.

4. The facts of the case are quite simple and are

stated as under:

It is stated that the plaintiff purchased the property

measuring 60 X 40 comprising five small houses, including the

RSA No. 2191 of 2016

suit schedule property measuring East to West 20 feet and

North to South 18 feet from its previous owner Smt.Mariyamma

and her children for valuable consideration of Rs.7,10,000/-

(Rupees Seven Lakh Ten Thousand only) under a registered

sale deed dated 27.01.2006. It is stated that on the date of the

registration of the sale deed, the vacant possession of four

houses was given to her and three months was sought to

deliver the vacant possession of another house situated within

the suit schedule. As things stood thus, during the first week of

January 2007, the defendants unlawfully broke open the lock

and barged into the schedule premises with the assistance of

the plaintiff's vendor. It is said that the defendants assured the

plaintiff that they would vacate the premises but they did not

do so. Hence plaintiff issued notice on 05.01.2008 calling upon

them to quit and deliver the vacant possession but in vain.

Hence the plaintiff was constrained to take shelter under the

court of law and filed a suit.

After service of the suit summons, the defendants

appeared through their counsel. They filed a detailed written

statement and denied the averments made in the pliant. They

admitted that Smt.Mariyamma and her children were the

RSA No. 2191 of 2016

absolute owners of the property. They specifically contended

that due to legal necessities, Smt.Mariyamma had mortgaged

the property in their favor by executing a mortgage deed on

05.09.2002 for a sum of Rs.3,75,000/- (Rupees Three Lakh

Seventy Five Thousand only) for a period of ten years. It is also

contended by them that ever since the date of the mortgage,

they are in peaceful possession and enjoyment of the property

in question. Among other grounds, he prayed for the dismissal

of the suit.

The Trial Court has framed the following issues based on

the above pleadings.

1. Whether the plaintiff proves that she is the

absolute owner of the suit schedule property?

2. Whether the plaintiff proves that the defendants

are unlawfully residing in suit schedule property?

3. Whether the plaintiff is entitled for the possession

of the suit schedule property?

4. Whether the plaintiff is entitled for the mesne

profit as prayed for?

5. Whether the plaintiff is entitled for the reliefs as

sought for?

RSA No. 2191 of 2016

6. What order or decree?

ADDITIONAL ISSUES

1. Whether the defendant No.1 proves that he has

been in possession of the suit schedule property

as mortgage of the written statement B schedule

property under Smt.Mariamma vide mortgage

deed dated 05.09.2002 for a period of 10 years?

To substantiate the claim, Narayana Prasad.T was

examined as PW.1 and produced Nineteen documents which

were marked as Ex.P.1 to Ex.P.19. On behalf of the defendants

three witnesses were examined as DW.1 to 3 and produced

Ninety five documents which were marked as Ex.D.1 to

Ex.D.95.

On the trial of the action, the suit came to be decreed

declaring that the plaintiff is the absolute owner of the suit

schedule property and the defendants were directed to quit and

deliver the vacant possession of the suit schedule property to

the plaintiff. They were also directed to pay a sum of

Rs.22,000/- (Rupees Twenty Two Thousand only) towards

mesne profits and damages to the plaintiff. On appeal, the

RSA No. 2191 of 2016

Judgment and Decree of the Trial Court were confirmed. Hence,

this Regular Second Appeal is filed under Section 100 of CPC is

filed.

5. Sri.Keshav Kumar, learned counsel for appellants

submits that the judgment and decree of the Trial Court and

First Appellant Court are perverse, arbitrary and illegal.

Next, he submits that the vendor of the plaintiff

Smt.Mariyamma had executed a mortgage deed in favor of the

appellants and they are in peaceful possession of the property

in question.

A further submission is made that the Mortgage deed was

marked as Ex.D.63. The Trial court as well as the First

Appellate court have failed to appreciate the material evidence

on record in right perspective.

Lastly, he contended that the second appeal raises a

question of law and hence the same may be admitted.

6. Sri.M.M.Swamy, learned counsel appearing for the

respondent justified the judgment and decree of both the

courts.

RSA No. 2191 of 2016

Next, he submitted that the defendants have admitted

that the plaintiff is the absolute owner of the property in

question.

A further submission is made that the contention

regarding the mortgage deed is wholly untenable.

Learned counsel vehemently contended that both the

courts in extenso referred to the material on record and rightly

decreed the suit.

Lastly, he contended that the second appeal does not

raise any substantial question of law. Hence the same may be

dismissed.

7. Heard the contentions urged on behalf of the

respective parties and perused the appeal papers and also the

records with utmost care.

The suit giving rise to this appeal was filed by the plaintiff

for declaration and possession.

Suffice it to note that the plaintiff based her claim on the

registered sale deed dated 27.01.2006 - Ex.P.2. She purchased

RSA No. 2191 of 2016

the schedule property from its previous owner Smt.Mariyamma

and her children. It is relevant to note that the defendants and

DW1 and 3 in their cross-examination have admitted the sale

deed. It is pivotal to note that the defendant admitted that

Smt.Mariyamma was the owner of the property also.

It is the specific contention of the defendants that the

vendor of the plaintiff had executed a mortgage deed in their

favor. Ex.D.63 the alleged mortgage deed. The Trial Court

extenso referred to the oral and documentary evidence on

record and concluded that the alleged mortgage deed does not

bear the signature of the mortgagor and the mortgagee. The

Trial court has also taken note of the fact that the scribe of the

alleged mortgage deed is not examined.

A good deal of argument is canvassed on the mortgage

deed. But I have no hesitation in concluding that both the

courts have properly appreciated the material evidence on

record and rejected the theory of mortgage deed. Hence the

argument with regard to mortgage deed must necessarily fail.

I find it necessary only to say this much that I am not prepared

RSA No. 2191 of 2016

to differ from the view taken by the Trial court and by the court

of appeal as to the question of fact.

In the last resort, learned counsel Sri.M.M.Swamy in

presenting his argument submitted that the plaintiff has already

taken possession of the property in question. The submission

about the possession is noted.

It is perhaps well to observe here that the after the 1976

amendment, the scope of Section 100 of CPC has been

drastically curtailed and narrowed down. The Trial court in

extenso referred to the evidence on record and decreed the

suit. The First Appellate Court has examined the evidence on

record and reappraised it. I am satisfied it has been

appreciated from the correct perspective.

No substantial question of law arises for consideration in

this appeal. As a result, I find no merit in this appeal, and

accordingly, it is dismissed at the stage of admission.

No order as to costs.

Sd/-

JUDGE TKN