Karnataka High Court
Sri. Vishnu N Pai vs Smt. Malathi Khamitkar on 5 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1742 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1742 OF 2022 (RES)
BETWEEN:
1. SRI. VISHNU N PAI
AGED 83 YEARS,
R/O HOTEL SAMRAT,
D.NO 682,
ASHOKA ROAD,
DAVANAGERE 577101.
2. SRI DINES VISNU PAI
S/O VISNU N PAI
AGED 63 YEARS
R/O HOTEL SAMRAT,
D.NO 682,
ASHOKA ROAD,
DAVANAGERE 577101.
Digitally
signed by
SUMA B N ...APPELLANTS
Location:
High Court (BY SRI. SANTOSH R NELKUDURI.,ADVOCATE)
of Karnataka
AND:
1. SMT. MALATHI KHAMITKAR,
W/O LT DAHRAMARAJ KAMITKAR,
AGED 76 YEARS,
R/AT NO 1148,
ESWAR NIVAS,
S N LAYOUT,
DAVANAGERE 577101.
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RSA No. 1742 of 2022
2. RAJESWARI JINGADE
W/O PRAKAS JINGADE,
AGED 57 YEARS,
R/AT NO 1148,
ESWAR NIVAS,
S N LAYOUT,
DAVANAGERE 577101.
3. SMT RADA URANKAR
W/O TUSAR URANKAR
AGED 53 YEARS,
R/AT NO 1148,
ESWAR NIVAS,
S N LAYOUT,
DAVANAGERE 577101.
4. ESWAR PRASAD KHAMITAKAR
S/O LT DARAMARAJ KAMITKAR
AGED 50 YEARS
R/AT NO 1148,
ESWAR NIVAS,
S N LAYOUT,
DAVANAGERE 577101.
...RESPONDENTS
(BY SRI. RAMAKRISHNA N.,ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 41
RULE 1 OF CPC TO SET ASIDE THE JUDGMENT AND DECREE
PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
DAVANGERE IN R.A.NO.55/2022 DATED 29.09.2022
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE
PRINCIPAL CIVIL JUDGE AND JMFC, DAVANAGERE IN
OS.NO.9/2019 DATED 09.03.2022 AND DISMISS THE SUIT BY
ALLOWING THE REGULAR SECOND APPEAL AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:612
RSA No. 1742 of 2022
JUDGMENT
This is appeal is filed by the defendants being
aggrieved by the concurrent findings, Judgment and
decree dated 09.03.2022 passed in O.S.09/2019 on the
file of Principal Civil Judge and JMFC, Davangere
(hereinafter referred as 'Trial Court') and in judgment and
decree dated 29.09.2022 passed in R.A.No.55/2022 on the
file of Principal Senior Civil Judge and CJM, Davangere
(hereinafter referred as 'First Appellate Court').
2. The above suit was filed by the
respondents/plaintiffs seeking relief in the nature of
redemption of mortgage and for cancellation of mortgage
dated 04.09.2022 and for damages.
3. The brief facts of the case are:
3.1 The plaintiff No.1 is the mother of plaintiff Nos.2
to 4 and they are living jointly. The suit property originally
owned by one Dharmaraj Khamitkar who died on
12.08.1999, leaving behind the plaintiffs as his legal heirs.
The defendant Nos.1 and 2 being the father and son
NC: 2024:KHC:612
carrying on the business of hotel in the suit property under
the name and style of 'Hotel Samrat'. That the said
Dharmaraj Khamitkar and his son-the plaintiff No.4 had
created the mortgage deed in respect of schedule property
in favour of defendants against a sum of Rs.90,000/- and
had delivered the possession of the schedule property.
The duration of the said mortgage was 26 years
commencing from 01.09.1992 expiring on 31.08.2018. As
the mortgage period had expired by efflux of time on
31.08.2018, plaintiffs caused issue of notice calling upon
the defendants to accept the mortgage money and deliver
the vacant possession of the schedule property by
01.09.2018. Non compliance to demand made in the said
notice resulted in plaintiffs filing the above suit for the
reliefs as sought for.
3.2. The defendants in the written statement denied
the plaint averments and contended that the suit was
barred by limitation. It is further contended by the
defendants that they had taken the suit schedule property
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as rent from the deceased Dharmaraj Khamitkar and that
the defendant No.1 continued as a tenant under
Dharmaraj Khamitkar. Since the Dharmaraj Khamitkar
was in need of money, he had mortgaged the property and
the same was reduced in writing. It is also contended that
the defendants had invested huge sum of money and had
employed more than 30 workers and that the defendants
would be put to hardship, hence sought for dismissal of
the suit.
4. The Trial Court based on the pleadings framed the
issues and recorded the evidence. On appreciation of
evidence the Trial Court came to the conclusion that the
plaintiffs were entitled for the reliefs as sought for and
accordingly decreed the suit directing the defendants to
accept the mortgage money of Rs.90,000/- which was
deposited into the Court and also to vacate and handover
the vacant schedule property within three months. The
defendants were further directed to execute Deed of
Cancellation of Mortgage enabling deletion of the entries in
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the records. Further defendants were directed to pay
Rs.5,000/- as damages for use and occupation of the
premises till handing over the vacant possession. Being
aggrieved by the same defendants preferred a Regular
Appeal in R.A.No.55/2022.
5. Considering the grounds urged in the appeal, the
First Appellate Court framed the points for consideration
and on re-appreciation of the matter the First Appellate
Court dismissed the appeal confirming the judgment and
decree passed by the Trial Court. Being aggrieved by the
same defendants are before this Court.
6. Sri. Santhosh R Nelkuduri, learned counsel for the
appellants reiterating the grounds urged in the
memorandum of the appeal submits that the Trial Court
and the First Appellate Court failed to appreciate the terms
of the mortgage deed produced at Ex-P1. In that there is
a specific understanding between the mortgagor and
mortgagee that after expiry of the period of mortgage, the
defendants would continue as tenants. Thus he submits
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that in view of the specific understanding having been
arrived at between the parties, there was a clog on
redemption of the mortgage in that the defendants were
given right to continue as tenants in the premises which
right of the defendants had not been considered and
appreciated by the Trial Court and the First Appellate
Court. Thus he submits that non appreciation of the terms
of mortgage deed-Ex-P1 resulting in decree would give
rise to substantial question of law warranting consideration
by this Court. Learned counsel for the appellants also
relies upon the judgment passed by the Apex Court in the
case of M/s Hasthimal and Sons and Ors Vs. P.Tej Raj
Shama reported in AIR 2007 Supreme Court 3246.
7. Per contra, learned counsel appearing for the
defendants submits that the clause provided in the
agreement is with respect to intention of the parties to
enter into the agreement at future point of time on their
volition and such a clause cannot be considered as having
any rights created between the parties. Thus he submits
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that the defendants cannot seek to prevent redemption of
the mortgage based on the said content in the mortgage
deed. He further submits that in any case the defendants
have neither set-up such a plea nor have they sought for
any counter claim in the written statement and such a plea
at this belated stage cannot be entertained. Hence he
submits that no substantial question of law would arise for
consideration and seeks for dismissal of the appeal.
8. Heard. Perused the records.
9. There is no dispute of the fact that the suit
schedule property belonged to the plaintiffs and that the
same had been mortgaged in favour of the defendants by
the husband and father respectively of the plaintiffs
namely Dharmaraj Khamitkar for a sum of Rs.90,000/-.
There is also no dispute of the fact that the duration of the
mortgage was 26 years which expired on 31.08.2018.
Only ground that is urged by the defendants in this appeal
is that the Trial Court and the First Appellate Court could
not have granted the decree as sought for in view of a
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specific clause contained in the mortgage deed which
accordingly to the appellant had created the vested rights
in favour of the defendants to continue in the premises as
a tenant. It is their further case that since the said clause
had created a vested rights to continue as a tenants, same
aught to have been construed as a clog on redemption of
the mortgage.
10. It is necessary at this juncture to refer the said
clause which the appellant has relied upon which reads as
under:
"vÀzÀ £ÀAvÀgÀ µÉqÀÆå¯ï ¸ÉÆwÛ£À §UÉÎ ºÉƸÀzÁV ¨ÁrUÉAiÀÄ£ÀÄß G¨sÀAiÀÄ ¥ÁnðUÀ¼ÄÀ
ªÀiÁvÁrPÉÆAqÀÄ PÀæªÀĪÁzÀ ¨ÁrUÉ PÀgÁgÀÄ ¥ÀvÀæ §gɬĹ £ÉÆÃAzÁ¬Ä¹PÉÆAqÀÄ
ªÀÄÄAzÀĪÀgɸÀ®Ä M¦àPÉÆArgÀÄvÁÛgÉ".
11. Perusal of the said clause reveal that the parties
had apparently intended to enter into a fresh agreement of
lease, upon such terms and conditions to be agreed upon,
thereafter by executing and registering a lease deed in
that regard. An agreement of that nature not one being in
praesenti cannot be said to have created any vested rights
in favour of the defendants. Reliance placed by the counsel
for the appellants on the judgment passed by the Apex
Court in the case of M/s Hasthimal and Sons and Ors
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Vs. P.Tej Raj Shama reported in AIR 2007 Supreme
Court 3246 is of no avail as the fact situation of the said
case is different and distinct from the one at hand.
Further, learned counsel for the appellants referred to
paragraph 19 and 13 of the said judgment which would
make it clear that the defendant therein even prior to the
date of mortgage was inducted as a tenant and mortgage
deed contained a specific term to this effect that after
expiry of the mortgage deed the defendants therein would
be considered as a lessee. No such clause is found in the
instant case at Ex-P1-mortgage deed.
12. The Trial Court and the First Appellate Court have
considered the fact situation of the matter and have
appreciated the evidence warranting no interference.
In that view of the matter, no substantial question of
law would arise for consideration in this appeal.
Accordingly, the appeal is dismissed.
Sd/-
JUDGE
RL
