Kari Gowda vs Gorakaiah
2023 Latest Caselaw 2639 Kant

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                                                        RSA No. 534 of 2014




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 26TH DAY OF MAY, 2023

                                            BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR


                       REGULAR SECOND APPEAL NO. 534 OF 2014 (DEC)


                      BETWEEN:

                      KARI GOWDA
                      S/O RAVUGOWDANA
                      HONNAGIRIGOWDA
                      AGED 66 YEARS,
                      R/AT VALAGARAHALLI VILLAGE,
                      KASABA HOBLI,, MADDUR TALUK
                      MANDYA DISTRICT-571 428
                                                              ...APPELLANT
                      (BY SRI. D S HOSMATH, ADVOCATE)
Digitally signed by
RENUKAMBA K G
                      AND:
Location: High
Court of
Karnataka
                      1.   GORAKAIAH
                           S/O LATE CHUNCHALAIAH
                           AGED 66 YEARS

                      2.   SMT. HOMBAMMA
                           W/O GORAKAIAH
                           AGED 56 YEARS,
                              -2-
                                       RSA No. 534 of 2014




3.    V.G. ADESHA
      S/O GORAKAIAH
      AGED 33 YEARS,

4.    SMT. M. SUJATHA
      W/O V.G. ADESHA
      AGED 29 YEARS,

      ALL ARE R/AT VALAGAREHALLI VILLAGE,
      KASABA HOBLI,
      MADDUR TALUK-571 428
                                       ...RESPONDENTS
(BY SRI. M S BASAVARAJU, ADVOCATE FOR R2 TO R4,
V/O DTD:21.02.2019 APPEAL STANDS DISMISSED
     AS ABATED AGAINST R-1)

     THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 30.1.2014 PASSED IN
R.A.NO.5/2011 ON THE FILE OF SENIOR CIVIL JUDGE,
MADDUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 18.10.2010 PASSED
IN OS.NO.358/2009 ON THE FILE OF ADDITIONAL CIVIL
JUDGE (JR.DN.) AND JMFC, MADDUR.

     THIS APPEAL, COMING ON FOR ADMISSION ALONG
WITH IA No.I/2014 FOR MAINTAINING STATUS-QUO THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is filed by the plaintiff challenging the

judgment and decree dated 30.01.2014 passed by the

Senior Civil Judge, Maddur ('First Appellate Court') for

RSA No. 534 of 2014

short) in RA No.5/2011 dismissing the appeal and

confirming the judgment and decree 18.10.2010 passed

by the Additional Civil Judge (Jr.Dn.) and JMFC, Maddur

('trial Court' for short) in OS No.358/2009.

2. The appellant is the plaintiff and respondents

are the defendants before the trial Court. The

appellant/plaintiff filed suit for recovery of mortgage

amount and claimed damages in the form of interest at

the rate of 2% per annum and other reliefs, in respect of

suit schedule property ie., Mangalore tiled house premises

with vacant space bearing Junger No.967, Property

No.958, measuring 30'x56' situated in Valagerahalli

Village, Kasaba Hobli, Maddur Taluk.

3. The case of the appellant/plaintiff before the

trial Court is that, the 1st defendant is the husband of 2nd

defendant, father of the 3rd defendant and father-in-law of

4th defendant and they constitute a joint family. The

defendants for their legal necessities to meet the house

RSA No. 534 of 2014

expenses and to discharge hand-loans, have jointly

borrowed loan of Rs.50,000/- from the plaintiff and to that

effect, they executed a registered mortgage deed in favour

of plaintiff on 17.01.2007 in respect of suit schedule

property. As per the recitals of the Mortgage Deed, the

defendants have handed-over the physical possession of

mortgaged residential suit schedule property to the

plaintiff. It is the case of the plaintiff before the trial Court

that the defendants did not hand-over the physical

possession, but they continued to reside in the house

because of non-availability of residential house in the

village and they requested the plaintiff that, they will pay

interest on mortgage loan amount of Rs.50,000/- at the

rate of 2% per month, till they secure an alternate house

in the village. It is the further case of the plaintiff that, on

humanitarian ground he allowed the defendants to reside

in the suit schedule house and as the defendants failed to

pay interest as agreed and as they did not hand-over the

physical possession of the suit schedule house, the plaintiff

has filed a suit for declaration that he is entitled to recover

RSA No. 534 of 2014

a sum of Rs.50,000/- from the defendants over mortgage

deed dated 17.01.2007 together with interest at the rate

of 2% per month, costs and such other reliefs, contending

that the usufructuary mortgage has been converted into

simple mortgage.

4. The plaintiff has been examined as PW.1 and

one attested witness by name Ravi has been examined as

PW.2 and Exs.P1 to P4 are marked. Ex.P1 is Mortgage

Deed, Ex.P2 is the Office copy of legal notice.

5. The trial Court after hearing arguments, has

formulated the following points for consideration:

i) Whether the suit of the plaintiff is maintainable?

ii) Whether the plaintiff is entitled for the reliefs claimed in the suit?

iii) What order or decree?

5. The trial Court answered point Nos. 1 & 2 in

negative and dismissed the suit of the plaintiff. The trial

Court held that, under Ex.P1-Mortgage Deed, the

RSA No. 534 of 2014

possession of suit schedule property has been handed-

over by the defendants to the plaintiff. There is no

material on record to show that, possession has remained

with the defendants. The trial Court further held that,

mortgage is usufructuary mortagage and it cannot be

converted into a simple mortgage deed. As the mortgage

is usufructuary mortgage, the plaintiff cannot file suit for

recovery of mortgage amount and interest on it and

dismissed the suit of the plaintiff.

6. Aggrieved by the judgment and decree passed

by the trial Court, the plaintiff filed appeal in RA

No.5/2011 before the First Appellate Court. The

defendants being the respondents before the First

Appellate Court, have contested the matter.

7. After hearing on both sides, the First Appellate

Court has formulated the following points for

consideration:-

i) Whether the trial Court erred in dismissing the suit of the plaintiff?

RSA No. 534 of 2014

ii) Whether the judgment and decree of the trial Court calls for any interference at the hands of this Court?

iii) What order?

8. The First Appellate Court has answered Point

Nos. 1 & 2 in the negative and dismissed the appeal by

confirming the judgment and decree passed by the trial

Court.

9. As stated above, Ex.P1 is a Registered

Mortgage Deed executed by the defendants in favour of

the plaintiff for a sum of Rs.50,000/- in respect of above

described residential suit schedule property . As per the

recitals of mortgage deed (Ex.P1), the defendants have

handed over possession of suit schedule property to the

plaintiff. As possession of suit schedule property has

been handed over by the defendants to the plaintiff, the

said mortgage is usufructuary mortgage. The period of

mortgage is for five years. The date of mortgage deed is

dated 17.01.2007. The plaintiff before completion of

RSA No. 534 of 2014

agreed mortgage period, has filed the suit on 20.11.2009.

The trial Court and First Appellate Court have held that the

suit of the plaintiff is a pre-matured suit and even there is

no material on record to show that, the possession of suit

schedule property was remained with the defendants.

Therefore, both the Courts below have rightly held that,

usufructuary mortgage cannot be converted into simple

mortgage and the plaintiff cannot seek recovery of

mortgage money and/or interest thereon. No error has

been committed by both the Courts below in dismissing

the suit of the plaintiff holding that the suit is prematured

one and as such the suit is not maintainable. No

substantial question of law arises for consideration.

Hence, the appeal is dismissed.

10. The appellant/plaintiff is at liberty to take action

against the defendants as per the terms and conditions of

mortgage deed (Ex.P1) after completion of term of five

years of mortgage.

RSA No. 534 of 2014

11. In view of dismissal of this appeal, IA

No.1/2014 filed for Maintaining Status-quo does not

survive for consideration. Accordingly, the said application

stands dismissed.

The Registry is directed to return the TCRs to the

concerned Courts below.

Sd/-

JUDGE

KGR*