Karnataka High Court
K.N. Sathyanarayana Rao vs D.Ramappa on 24 November, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A. NO. 1305 OF 2023 (RES)
BETWEEN:
K.N. SATHYANARAYANA RAO
S/O LATE NARASINGA RAO,
AGED ABOUT 73 YEARS,
R/O GROUND FLOOR,
DASHARATHA RAMESHWARA NILAYA
2ND CROSS, RAVINDRANAGARA
SHIVAMOGGA - 577 202
...APPELLANT
(BY SMT.VEENA K N, ADVOCATE)
AND:
D.RAMAPPA
S/O LATE DASHARATHA
AGED ABOUT 88 YEARS
R/O DASHARATHA RAMESHWARA NILAYA
2ND CROSS, 1ST FLOOR, RAVINDRANAGARA
SHIVAMOGGA - 577 202
...RESPONDENT
(BY SRI.RUDRAIAH M, ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 18.04.2023 PASSED IN
2
RA.NO. 30/2022 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, SHIVAMOGGA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.04.2022
PASSED IN O.S.NO.174/2018 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.11.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by unsuccessful
defendant questioning the concurrent findings of the Courts
below wherein plaintiff's suit seeking redemption of mortgage
and in the alternate for delivery of possession is decreed in
part directing the defendant to handover vacant possession of
the suit property. The said concurrent findings are under
challenge by the defendant.
2. For the sake of brevity, the parties are referred to
as per their rank before the trial Court.
3. The plaintiff instituted a suit alleging that he
entered into an agreement with defendant on 25.01.2000 and
as per the agreement, plaintiff was required to mortgage the
suit property in favour of defendant for a sum of
Rs.2,00,000/-for a period of three years. The plaintiff further
contended that defendant occupied the suit premises on
04.05.2000 by paying entire mortgaged amount. The plaintiff
has alleged in the plaint that after completion of three years,
plaintiff kept on requesting the defendant to handover vacant
possession. The plaintiff has alleged that defendant went of
postponing by assigning one or the other reason and
therefore, plaintiff got issued a notice on 06.07.2017 and
second notice was issued on 18.07.2017 and though served
with notice, defendant has refused to handover possession
and hence, the present suit.
4. The defendant, on receipt of summons, admitted
the mortgage transaction and contended that plaintiff has
agreed to sell the suit property and therefore, alleged that he
has paid Rs.49,00,000/- towards sale consideration. The
defendant contended that pursuant to mortgage transaction,
he has paid an amount of Rs.1,50,000/- as additional
mortgage amount. The defendant alleged that plaintiff has
agreed to sell the suit property and sale consideration was
fixed at Rs.45,10,000/- and defendant has, in all, paid
Rs.45,10,000/- between the period 15.03.2011 and
07.07.2016 and hence, sought for dismissal of the suit.
5. The plaintiff and defendant to substantiate their
respective claim have let in oral and documentary evidence.
6. The trial Court in absence of rebuttal evidence
answered issued Nos.1 and 2 in the negative and issue Nos.3
and 7 in the affirmative. The trial Court while answering issue
Nos.3 and 7 in the affirmative held that plaintiff has succeeded
in proving that he has delivered possession to defendant in
anticipation of mortgaging the property under documents. In
absence of rebuttal evidence let in by the defendant, the trial
Court held that plaintiff being owner of the suit schedule
property is entitled for possession and defendant is equally
liable to handover vacant possession of the suit schedule
property. Accordingly, suit is dismissed and the same is
confirmed by the appellate Court. These concurrent findings
are under challenge.
7. Heard learned counsel appearing for the defendant
and learned counsel appearing for the plaintiff. Perused the
concurrent findings of the Courts below.
8. Though plaintiff and defendant have admitted the
mortgage transaction, in absence of proper registered
document, both the Courts have held that there is no
mortgage transaction. However, both the Courts having taken
cognizance of the fact that there is no dispute that plaintiff
delivered possession of suit property in receipt of
Rs.2,00,000/- held that plaintiff being owner is entitled to
secure possession. Strangely defendant has come up with a
defence that plaintiff has agreed to sell the suit schedule
property and that he has received entire sale consideration of
Rs.45,10,000/-. If an agreement to sell is executed by
plaintiff, defendant has efficacious remedy and it is open for
the defendant to enforce the agreement, if any. The fact that
title of plaintiff is not disputed and the fact that defendant
admits that suit property was delivered to him in receipt of
Rs.2,00,000/-, both the Courts were justified in decreeing the
suit in part directing the defendant to handover vacant
possession. On examining the findings and conclusions
recorded by the Courts below, I do not find any serious
infirmities in the findings recorded by both the Courts.
9. No substantial question of law arises for
consideration. The appeal is devoid of merits and accordingly,
stands dismissed.
The pending interlocutory application, if any, does not
survive for consideration and stands disposed of accordingly.
Sd/-
JUDGE
CA
