Karnataka High Court
Sri Karigowda vs Sri Eregowda on 2 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1013 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1013 OF 2012 (INJ)
BETWEEN:
1. SRI. KARIGOWDA,
SINCE DEAD BY HIS LR'S
1(a) SMT. MARIYAMMA,
W/O LATE SRI. KARIGOWDA,
AGED ABOUT 69 YEARS,
SINCE DEAD BY LR'S
ALREADY ON RECORD
1(b) SRI. THAMMANNA,
S/O LATE SRI.KARIGOWDA,
AGED ABOUT 48 YEARS,
1(c) SMT. SAROJAMMA,
Digitally signed
by SHARANYA T D/O LATE SRI. KARIGOWDA,
Location: HIGH AGED ABOUT 54 YEARS,
COURT OF
KARNATAKA
APPELLANTS NO.1(a) TO 1(c)
ARE RESIDING AT ABBUR DODDI VILLAGE,
KASABA HOBLI,
CHANNAPATNA TALUK,
NOW RAMANAGARA DISTRICT.
1(d) SMT. SAKAMMA,
D/O LATE SRI. KARIGOWDA,
AGED ABOUT 52 YEARS,
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RSA No. 1013 of 2012
R/AT PATLU VILLAGE, ABBUR POST,
KASABA HOBLI,
CHANNTAPANTA TALUK,
NOW RAMANAGARA DISTRICT.
1(e) SMT. SAVITHRAMMA,
D/O LATE SRI. KARIGOWDA,
AGED ABOUT 45 YEARS,
R/AT KARUR, MOGENAHALLI VILLAGE,
MOGENAHALLI POST,
KASABA HOBLI,
CHANNAPATNA TALUK,
NOW RAMANAGARA DISTRICT.
1(f) SMT. CHANDRAMMA,
D/O LATE SRI.KARIGOWDA,
AGED ABOUT 59 YEARS,
R/AT AMMALLI DODDI,
VIRUPAKSHIPURA HOBLI,
CHANNAPATNA TALUK,
NOW RAMANAGARA DISTRICT.
1(g) SMT. JAYALAKSHMAMMA,
D/O LATE SRI KARIGOWDA,
AGED ABOUT 41 YEARS,
R/A HOSAKERE VILLAGE,
HOSAKERE POST, MADDUR TALUK,
MANDYA DISTRICT.
...APPELLANTS
(BY SRI. N. KEMPEGOWDA., ADVOCATE)
AND:
1. SRI. EREGOWDA,
S/O LATE SRI. KANDI DASEGOWDA,
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RSA No. 1013 of 2012
AGED ABOUT 73 YEARS,
R/AT ABBUR DODDI VILLAGE,
KASABA HOBLI,
CHANNAPATNA TALUK,
NOW RAMANAGARA DISTRICT.
LEGAL REPRESENTATIVE OF
DECEASED RESPONDENT
1(a) SRI.NAGANNA,
S/O LATE EREGOWDA,
AGED ABOUT 46 YEARS,
R/AT ABBUR DODDI VILLAGE,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT.
1(b) SMT.SHARADAMMA,
W/O HOMBALEGOWDA,
D/O LATE EREGOWDA,
AGED ABOUT 44 YEARS,
RESIDING AT GENDELKERE VILLAGE,
KASABA HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.
1(c) SRI.CHANDRA,
S/O LATE EREGOWDA,
AGED ABOUT 42 YEARS,
R/AT ABBUR DODDI VILLAGE,
ABBUR POST, KASABA HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT.
1(d) SRI.SRINIVAS @ KUNTA,
S/O LATE EREGOWDA,
AGED ABOUT 38 YEARS,
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RSA No. 1013 of 2012
R/AT ABBUR DODDI VILLAGE,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT.
...RESPONDENTS
(BY SRI. S G LOKESH., ADVOCATE FOR R1(a-d))
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGMENT & DECREE DATED 4.1.2012 PASSED IN
R.A.NO.17/2009 ON THE FILE OF PRINCIPAL CIVIL JUDGE
(SR.DN.) & C.J.M., RAMANAGARA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
30.9.2008 PASSED IN OS.NO.245/1993 ON THE FILE OF
PRINCIPAL CIVIL JUDGE (JR.DN.) & J.M.F.C., CHANNAPATNA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The matter is listed for admission.
2. I have heard the learned counsel for the appellant
and also the learned counsel for the respondent.
3. The main contention of the appellant in the second
appeal is that admittedly, the property was mortgaged by the
original owner in favour of the plaintiff vide Ex.P1 dated
30.03.1955. A total of 5 items were mortgaged for an amount
of Rs.700/- for a period of 8 years and item No.1 was also sold
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subsequently and item Nos.2 to 5 were also sold in favour of
defendants on 12.06.1957 in terms of Ex.P7. The counsel
would also vehemently contend that when the mortgage was
subsisting, the question of selling the property does arise. He
would further submit that the possession is continued with the
mortgagor and both the courts below have committed an error
in holding that the plaintiff is not entitled for foreclosure as well
as the possession, which is with the plaintiff and the very
approach of the trial court as well as the first appellate court is
erroneous and hence, it requires admission and the court has
to invoke Section 100 of Code of Civil Procedure, 1908 and to
frame substantial question of law.
4. Per contra, the learned counsel for the respondent
would submit that the trial court as well as the first appellate
court has taken note of the material available on record and
there is clear admission on the part of the plaintiff that the
property vests with the Government in view of the Inams
Abolition Act, 1954 (hereinafter referred to as 'the Act' for
short) and the question of even mortgaging the property also
does not arise and when the land vests with the Government,
the question of original owner creating any mortgage or selling
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the property also does not arise and the same was taken note
of by the trial court and the First Appellate Court.
5. Having heard the learned counsel for the appellant
and also the learned counsel for the respondent, it is evident
that the plaintiff is claiming right based on the mortgage deed
dated 13.03.1955 and the fact that the Act came into force in
the year 1954 is also not in dispute and apart from that, the
plaintiff has also categorically admitted that the land vests with
the Government in view of the Act and has also categorically
admitted that the entire village vests with the Government and
when such admission is given and the records also clearly
disclose that though he contend that possession is continued
with him, neither RTC extract from the date of mortgage or
after Mysore (Personal and Miscellaneous) Inams Abolition Act,
1954 came into force, nor the tax paid receipt is produced. The
same is also considered in para 21 of the judgment of the trial
court.
6. It is also important to note that when the property
vests with the Government, the question of foreclosure also
does not arise and that the plaintiff is also not disputing the
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fact that the land vests with the Government in view of the Act,
which came into force. When such being the case, creation of
mortgage and also creating any sale deed also does not convey
any right either in favour of the mortgagee or the purchaser
when the land does not vest with the mortgagor and the said
fact is also taken note of by the trial court that the land vests
with the Government in view of the Act and the same is also
considered by the appellate court in paragraph No.17 and an
observation is made that plaintiff admits that the whole village
vests with the Government due to the Act, which came into
force and also an observation is made that the plaintiff has not
placed any evidence before the court showing item No.1 is
granted to him and he is in possession of the said property.
Moreover, the plaintiff has sought the relief of foreclosure
against the defendant, but according to the plaintiff himself, the
defendant is not mortgagor, but one Kapregowda is mortgagor.
Hence, the learned trial judge has rightly opined that the suit of
the plaintiff for foreclosure does not survive.
7. The trial court has also taken note of the said fact
into consideration and the suit for the plaintiff for injunction in
respect of item No.1 also does not survive since, plaintiff has
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not placed any material showing that he took the possession of
item No.1 from the Government after land vested with
Government due to the Act, which came into force. The First
Appellate Court also applied its mind and also comes to the
conclusion when the plaintiff has not disputed the fact that the
suit schedule property and the entire village situated vested
with the Government due to the Act, came into force, the
question of conveying any right in favour of the plaintiff also
does not arise and a detailed discussion was made and the
earlier judgment also relied upon by the trial court in
O.S.No.563/1967 in the redemption of mortgage on the file of
Munsiff, Ramanagara earlier was also filed and the same was
also dismissed and the judgment and decree of the said case
has also been produced before the court, which is marked as
Ex.P3 and Ex.P4 respectively.
8. The trial court as well as First Appellate Court has
taken note of the material available on record and once the
property vests with the Government, question of granting any
relief for permanent injunction in favour of the plaintiff also as
sought, does not arise. Both the courts have not committed any
error in assigning the reasons for dismissing the suit and
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confirming the same. Hence, I do not find any substantial
question of law to be framed for re-consideration of this second
appeal. The finding of the trial court as well as the
confirmation order passed by the appellate court is recorded
after considering both the question of fact as well as the
question of law. Hence, it is not a fit case to invoke Section
100 of Code of Civil Procedure, 1908. In view of the discussion,
I pass the following:
ORDER
(i) The second appeal is dismissed.
Sd/-
JUDGE
SS
