Karnataka High Court
Smt. Lakshmamma vs Smt. Vijayalakshmi on 18 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:26932
RSA No. 1593 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1593 OF 2024 (POS)
BETWEEN:
1. SMT. LAKSHMAMMA,
W/O LATE HANUMANTHAIAH,
AGED ABOUT 81 YEARS,
R/O A-BLOCK, 1ST MAIN,
4TH CROSS, SHARAVATI NAGARA,
SHIVAMOGGA CITY-577 202.
2. SRI. BASAVARAJ,
S/O LATE HANUMANTHAIAH,
AGED ABOUT 61 YEARS,
R/O A-BLOCK, FIRST MAIN,
4TH CROSS, SHARAVATHI NAGARA,
SHIVAMOGGA CITY-577 202.
...APPELLANTS
Digitally signed
by DEVIKA M
(BY SRI. MADHUKAR NADIG, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. SMT. VIJAYALAKSHMI,
W/O LATE M.R.MAHABALA SHETTY,
AGED ABOUT 67 YEARS,
R/O KOHALLI VILLAGE,
AYANOOR POST,
SHIVAMOGGA TALUK-577 211.
2. M.M. ARAVINDA,
W/O LATE M.R.MAHABALA SHETTY,
AGED ABOUT 44 YEARS,
PROP: SRI. VENKATESHWARA MEDICALS,
AYANOOR,
-2-
NC: 2025:KHC:26932
RSA No. 1593 of 2024
HC-KAR
R/O KOHALLI VILLAGE,
AYANOOR POST,
SHIVAMOGGA TALUK-577 211.
3. NARAYANASWAMY U.H.,
S/O LATE K.HANUMAIAH,
AGED ABOUT 62 YEARS,
R/O SHIVARANJINI, III CROSS,
II BLOCK, R.T.NAGAR,
BENGALURU-560 032.
4. SMT. JAYALAXMI,
W/O LATE D.K. NARAYANAPPA,
AGED ABOUT 61 YEARS,
R/O II HOUSE, 6TH CROSS,
60 ROAD, NEAR CYCLE MART,
VINOBANAGAR,
SHIVAMOGGA -577 202.
5. SMT. SUDHA U.H.,
W/O SIDDESH,
AGED ABOUT 44 YEARS,
R/O SIDDESHWARA NILAYA,
D.N.311/88, SHRESHYAM LAYOUT,
SIDDESHWARA MILL COMPOUND,
III CROSS, III MAIN,
DAVANAGERE-577 002.
6. SMT. PARVATI,
W/O J.MURUGESH,
AGED ABOUT 54 YEARS,
MANASA, D.NO.76,
NEAR M.M. SCHOOL,
BEDAGUBETTA, KORANGAPADI,
BYLUR, NEAR KALAKIRANA CLUB,
UDUPI - 576 101.
7. VISHWANATH U.H.,
S/O LATE K. HANUMANTHAIAH,
AGED ABOUT 48 YEARS,
SRIGANDHA, 7TH CROSS,
SHARAVATI NAGARA,
SHIVAMOGGA-577 201.
-3-
NC: 2025:KHC:26932
RSA No. 1593 of 2024
HC-KAR
8. SRINIVAS H.,
S/O LATE K. HANUMANTHAIAH,
AGED ABOUT 50 YEARS,
NEAR ANANYA VIDYAPETA,
KANNADA SAMSKRUTI BHAVANA,
ASHOK NAGAR,
SHIVAMOGGA-577 202.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.09.2024
PASSED IN R.A.NO.35/2023 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, PARTLY
ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 01.08.2023 PASSED IN
O.S.NO.185/2018 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants.
2. This appeal is filed against the concurrent finding.
3. The factual matrix of the case of the plaintiffs
before the Trial Court in O.S.No.185/2018 is that the suit
schedule property belongs to the plaintiffs and there was an
unregistered mortgage deed dated 25.11.1996 for the
mortgage amount of Rs.35,000/-. The husband of defendant
NC: 2025:KHC:26932
HC-KAR
No.1 and father of defendant No.2, Sri K.Hanumaiah had
taken the possession of the suit schedule property for the
mortgage period of four years from Sri M.R. Mahabala Shetty.
It is their case that after the negotiation and settlement with
Sri K.Hanumaiah, they have returned the mortgage amount of
Rs.35,000/- along with the repair charges of the suit schedule
property to Sri K.Hanumaiah through cheques as Sri
K.Hanumaiah has agreed to redeem the mortgage and came
forward to deliver the vacant possession of the suit property
in favour of the plaintiffs. It is their contention that the
payment of Rs.35,000/- and other repair charges of
Rs.60,000/- was received. He failed to return the vacant
possession of the suit schedule property during his lifetime
and subsequently after his death, even the defendants have
failed to deliver the vacant possession of the suit schedule
property to the plaintiffs. Hence, filed the suit for the
recovery of vacant possession of the suit schedule property
and also filed the suit for damages at the rate of Rs.8,000/-
per month from the hands of defendants for unauthorised
occupation of the suit schedule property from the date of suit
till realisation.
NC: 2025:KHC:26932
HC-KAR
4. It is the specific contention of the defendants in
the written statement that the suit is bad for non-joinder of
necessary parties. There was a sale transaction between Sri
M.R.Mahabala Shetty and Sri K.Hanumaiah and also took the
contention that agreed to sell the property for an amount of
Rs.10,00,000/- and also made the payment of Rs.2,00,000/-.
5. Having considered the pleadings of the parties,
the Trial Court framed the issues and allowed the parties to
lead evidence. The plaintiffs in order to prove their case
examined plaintiff No.2 as P.W.1 and got marked the
documents at Exs.P.1 to P10. On the other hand, the
defendants also examined defendant No.2 as D.W.1 and got
marked the documents at Exs.D1 to 19. The Trial Court
having considered the material available on record, comes to
the conclusion that there was a mortgage, but mortgage deed
was unregistered and hence the suit filed for the relief of
possession is maintainable. The Trial Court in paragraph
No.24 observed that an amount of Rs.35,000/-, in total an
amount of Rs.95,000/-, including the repair charges of
Rs.60,000/- was paid by way of cheques and granted the
NC: 2025:KHC:26932
HC-KAR
relief of damages, as claimed by the plaintiffs at the rate of
Rs.8,000/- per month.
6. Being aggrieved by the said judgment and decree,
an appeal was filed in R.A.No.35/2023. The Appellate Court
having re-assessed the material available on record and
considering the grounds which have been urged in the appeal,
formulated the points whether the plaintiffs prove that they
have got right to get the possession of the suit schedule
property from the defendants, whether the impugned
judgment is against the law, facts, evidence, and probability
of the case and liable to be interfered by this Court. The
Appellate Court having considered the material on record,
observed that the property belongs to the plaintiffs and that
the suit property originally belonged to Sri K.R. Gurupadappa
and it was purchased by one Sri Rangappa Shetty, who is the
father of husband of plaintiff No.1 and grandfather of plaintiff
No.2 vide sale deed dated 06.06.1965. According to the
plaintiff, after the death of said Rangappa Shetty, khatha was
changed in the name of his son Mahabala Shetty, who died on
19.06.2016 and the plaintiffs being his wife and son have
succeeded to the suit property. Based on the unregistered
NC: 2025:KHC:26932
HC-KAR
mortgage deed, filed the suit and also taken note of the
defence which have been taken. The Appellate Court also
dealt with the matter, particularly taking note of Ex.P.6 legal
notice and reply notice given in terms of Ex.P.9, wherein
categorically admitted that it was a mortgage transaction. The
Appellate Court in paragraph No.16 taken note of that an
amount of Rs.35,000/- was paid under the unregistered
document and comes to the conclusion that the suit is
maintainable for recovery of possession.
7. The Appellate Court in paragraph No.17 discussed
with regard to the document Ex.P.1 was the basis for claiming
that they are the owners and apart from that, the Appellate
Court also re-assessed the material available on record that
defendants Nos.1 and 2 are residing in the suit schedule
property. The Appellate Court also taken note of the
transaction between the parties and also the payment of
Rs.35,000/- as well as Rs.60,000/- spent towards repair i.e.,
Ex.P.10 payment made through the account extract of their
bank account. The Appellate Court also taken note of the
defence of the defendants in paragraph No.19 that when they
claim that there was a sale transaction and agreed to sell the
NC: 2025:KHC:26932
HC-KAR
property for Rs.10,00,000/- and a substantial amount of
Rs.2,00,000/- was paid, nothing is placed on record. All the
materials were considered by the Appellate Court and also
with regard to the damages is concerned, in detail discussed
that in order to prove the claim of Rs.8,000/- of damages,
nothing is placed on record and hence comes to the
conclusion that liberty is given to the plaintiffs to file a
separate petition for determining the quantum of damages,
after getting the possession of the suit property from the
defendants modifying the judgment of the Trial Court and
confirmed the judgment with regard to the delivery of
possession is concerned.
8. Being agreed by the said judgment, the present
second appeal is filed before this Court.
9. The learned counsel for the appellants would
vehemently contend that the plaintiffs have not produced the
mortgage deed and the very relationship is disputed. The
learned counsel also would vehemently contend that when the
notice was issued under Section 106 of the Transfer of
Property Act, the same was considered as cause of action to
file a suit for mere recovery of possession without landlord
NC: 2025:KHC:26932
HC-KAR
and tenant subsisting and no relationship existed and
converted into the mortgager and mortgagee and the very
approach of the Trial Court as well as the Appellate Court is
erroneous and hence this Court has to frame the substantial
question of law.
10. Having heard the learned counsel for the
appellants and also on perusal of the material available on
record, the Trial Court when the suit was filed for the relief of
possession in respect of the suit schedule property is
concerned, taken note of the admissions on the part of the
parties with regard to the mortgage transaction is concerned
and also taken note of the document was not placed before
the Court, since the document was an unregistered document.
But, there was an admission on the part of the defendants
themselves while giving the reply in terms of Ex.P.9 that there
was a mortgage transaction and with regard to the claim of no
relationship of mortgager and mortgagee, both the Courts
taken note of the said fact into consideration regarding reply.
With regard to an amount of Rs.35,000/- is concerned also
taken note of in paragraph No.24 of the Trial Court judgment
for having made the payment in terms of Ex.P.10, that is
- 10 -
NC: 2025:KHC:26932
HC-KAR
Rs.35,000/- plus Rs.60,000/- towards the repair charges,
since defendant Nos.1 and 2 on negotiation have claimed that
they have conducted the repairs of the building and the same
was also agreed. For having made the payment also the
same was taken note of by the Trial Court as well as the
Appellate Court. When the appeal was filed before the
Appellate Court, the Appellate Court having considered the
material with regard to the damages is concerned, comes to
the conclusion that in order to claim the damages of
Rs.8,000/-, no material is placed before the Court and hence
liberty was given to the plaintiffs to file a separate
proceedings and seek for the relief of damages. When such
material is considered by both the Courts, even comes to the
conclusion that there is a clear admission on the part of the
parties with regard to the relationship between the parties
and also having made the payment of Rs.35,000/- and also
taken note of the fact that possession was not re-delivered
and considered both material on record i.e., factual aspects as
well as question of law regarding maintainability of the suit.
When such being the case, both the Courts considered both
oral and documentary evidence available on record,
particularly payment of amount and hence, I do not find any
- 11 -
NC: 2025:KHC:26932
HC-KAR
perversity in the finding of the Trial Court and the Appellate
Court and when such material is available on record, I do not
find any ground to admit the second appeal and frame any
substantial question of law, as contended by the learned
counsel for the appellants.
11. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
