Karnataka High Court
Sri Ajjegowda vs Smt Lakshmamma on 3 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 841 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 841 OF 2024 (RES)
BETWEEN:
1. SRI. AJJEGOWDA
S/O SRI. DEVARAJEGOWDA
AGED ABOUT 80 YEARS
R/O HANUMANAHALLI VILLAGE
HALEKOTE HOBLI, HOLENARASIPURA TALUK
HASSAN DISTRICT - 573 211.
...APPELLANT
(BY SRI. MANJUNATH H, ADVOCATE)
AND:
1. SMT. LAKSHMAMMA
W/O. SRI. SUNDRESH
AGED ABOUT 54 YEARS
Digitally signed
by DEVIKA M RESIDENT OF
Location: HIGH HANUMANAHALLI VILLAGE
COURT OF
KARNATAKA HALEKOTE TALUK
RESIDING AT:
DEVAMMA EXTENSION
CHANNAPATTANA VILLAGE, HASSAN DISTRICT
2. SMT. YOGAMMA
W/O. SRI. VENKATASHETTY
AGED ABOUT 71 YEARS
RESIDENT OF
MUKUNDUR, MALLENAHALLY VILLAGE
KARLE POST, KATTAYA HOBLI
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RSA No. 841 of 2024
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HASSAN DISTRICT
3. SMT. KALPANA
W/O. SRI. ESHWARA
AGED ABOUT 51 YEARS
RESIDENT OF
KABBINAHALLY VILLAGE
HALEKOTE HOBLI, HOLENARASIPURA TALUK
HASAN DISTRICT
4. SRI. GOPALA SHETTY
S/O. SRI KRISHNA SHETTY
MAJOR
5. SMT. LATHA
W/O. SRI. GOPALA SHETTY
MAJOR
RESPONDENT NO. 4 & 5
ARE RESIDING AT:
MUKUNDURU, MALLENAHALLY VILLAGE
KARLE POST, KATTAYA HOBLI
HASSAN DISTRICT
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE OF O.S NO.347/2013
DISPOSED OFF ON 15/03/2022 BY THE COURT OF III
ADDITIONAL CIVIL JUDGE AND JMFC AT HASSAN, AND
JUDGMENT IN R.A NO.70/2022 ON FILE OF THE COURT OF
ADDITIONAL SENIOR CIVIL JUDGE, AT HASSAN DISPOSED OF
16/02/2024 AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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RSA No. 841 of 2024
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ORAL JUDGMENT
This matter is listed for admission. Heard learned counsel
appearing for the appellant.
2. This second appeal is filed against the concurrent
findings of the trial Court and the first Appellate Court passed
in O.S.No.347/2013 and R.A.No.70/2022. This second appeal
is filed by the defendant No.1 questioning the said concurrent
findings.
3. The factual matrix of the case of the plaintiff before
the trial Court is that there was a mortgage deed of the year
2001 executed in favour of defendant No.1, wherein the
defendant Nos.2 to 4 have received an amount of
Rs.20,000/- and the mortgage is a usufructuary mortgage and
possession was delivered and also the period of mortgage is
upto 2006 and subsequent to the expiry of period of 2006,
notice was issued. But, the defendant No.1 did not come
forward to redeem the mortgage and hence, the plaintiff
filed the suit seeking for the relief of redemption of
mortgage and document of mortgage is also produced before
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the Trial Court as per Ex.P12 dated 11.06.2001 and also a legal
notice was also marked and also earlier documents of sale
agreement as per Ex.P2, sale deed as per Ex.P3 dated
03.07.2001 and the suit filed in 2001 i.e., O.S. No.274/2001
were also marked.
3(i) In support of the claim of the plaintiff, the plaintiff
examined her husband as P.W.1 and also got examined one
witness as P.W.2 and got marked 29 documents as Exhibits P1
to P29. On the other hand, defendants also examined three
witnesses as DWs.1 to 3 and got marked 5 documents as per
Exhibits D1 to D5 and placed on record the earlier suit filed in
O.S.No.274/2001 for seeking the relief of permanent
injunction.
3(ii) Having considered both oral and documentary
evidence, the trial Court taken note of there is a registered
mortgage deed in terms of Ex.P12 and the same is for a period
of 5 years and on repayment of mortgage amount, defendant
No.1 has to redeem the same and the trial Court having
considered the material available on record, particularly recitals
of document as per Ex.P12, comes to the conclusion that the
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period already expired and subsequently, notice was exchanged
between the parties and in spite of it, possession was not
delivered and also not executed any redemption of document
and therefore, the trial Court granted the relief of redemption
of mortgage directing the defendant No.1 to receive the
amount of Rs.20,000/- and redeem the suit schedule property
within 60 days and the same was challenged before the
Appellate Court.
3(iii) The Appellate Court also on re-appreciation of both
oral and documentary evidence available on record in R.A.
No.70/2022, answered the point Nos.1 and 2 as 'affirmative',
coming to the conclusion that there was a sale deed in terms of
Ex.P3 dated 03.07.2001 executed by defendant Nos.2 and 3 in
favour of the plaintiff and also taken note that the trial Court
having considered the material on record, directed the
defendant No.1 to deliver the possession to the plaintiff by
redeeming the mortgage and receive an amount of Rs.20,000/-
and the Appellate Court held that it does not require any
interference of the Court and confirmed the judgment of the
trial Court. Being aggrieved by the judgments of the trial Court
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and the Appellate Court, as against the concurrent findings, the
present second appeal is filed before this Court seeking to set
aside the judgments passed by the trial Court and the Appellate
Court.
4. The main contention urged before this Court by the
learned counsel appearing for the appellant is that the first
Appellate Court fails to take note of the fact that the plaintiff
has claimed in the suit that she is in physical possession and
though she sought for the relief of redemption of mortgage and
delivery of possession, but her pleading is contrary and in one
breath says that she is in possession and also sought for the
relief of possession. Learned counsel would vehemently
contend that both trial Court and Appellate Court erred in not
considering the admission made by P.W.1 in regard to non-
passing of sale consideration between the vendor and the
purchaser and the suit is filed with the ulterior intention to get
back the possession from the defendant No.1. Learned counsel
would vehemently contend that both Courts committed an error
in considering the defective pleadings and erroneously granted
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the relief of possession in favour of the plaintiff and hence, it
requires interference of this court.
5. Having considered the reasoning given by the trial
Court as well as the Appellate Court and also the grounds urged
before this Court, the appellant has not disputed the fact that
there was a mortgage deed in terms of Ex.P12 and it is also not
in dispute the fact that the same is for a period of 5 years and
also not in dispute that the period of mortgage had also ended
up in 2006. But, the only contention of the appellant is that
there was no sale consideration was passed between the
vendor and the purchaser and the same cannot be a ground in
a suit for redemption of mortgage when the document of
Ex.P12 is in existence between the defendant No.1 and
defendant Nos.2 to 4, that it is a case of mortgage and the fact
that an amount of Rs.20,000/- was paid by the defendant No.1
in favour of the defendant Nos.2 to 4 at the time of entering
into the mortgage and there is a clear recital about the refund
of the amount of Rs.20,000/- after the expiry of the period of
mortgage i.e., five years, he has to execute the document of
redemption of mortgage. But, he has not done the same and
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hence, the plaintiff has sought for the relief of redemption of
mortgage as well as possession.
6. No doubt, it is pleaded in the plaint that the plaintiff
is in possession, but, the Court has to take note of
documentary evidence as per Ex.P12, wherein the possession
was delivered and the same is also a usufructuary mortgage
and the same is for usage of the property for the amount what
the defendant No.1 had paid and when such being the case, the
Court has to take note of the fact that the documentary
evidence prevails over the oral evidence. Even though there is
a pleading, but the fact is that the plaintiff has sought for the
relief of possession, which is not in dispute. Learned counsel
appearing for the appellant relies upon the judgment of the
Hon'ble Apex Court reported in MANU/SC/8199/2008, Bachhaj
Nahar v. Nilima Mandal and Others and brought to the
notice of this Court that the pleadings must be consistent with
the oral evidence and brought to the notice of this Court
paragraph No.12, wherein discussion was made with regard to
where the pleadings in substance, though not in specific terms,
contains the necessary averments to make out a particular case
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and the issues framed also generally cover the question
involved and the parties proceed on the basis that such case
was at issue and had led evidence thereon.
7. No doubt, the Hon'ble Apex Court having
considered the principles, the Hon'ble Apex Court discussed
with regard to the pleadings and the evidence must be in
corollary to the pleadings and in the case on hand, I have
already pointed out that though it is pleaded that she is in
possession, but the documentary evidence as per Ex.P12
clearly discloses that the possession was delivered and the
mortgage is also a usufructuary mortgage and when recital of
the document is very clear, the documentary evidence prevails
over the oral evidence and also relief is sought for possession
and mistakenly, it appears that it is pleaded that she is in
possession. But, the documentary evidence of Ex.P12 is clear
that possession was delivered at the time of executing the
document of mortgage deed and when such being the case, I
do not find any error on the part of the trial Court and
Appellate Court in granting the relief of redemption, the
judgment which is relied upon by the learned counsel for the
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appellant will not come to the aid of the appellant and the
Court has to take note of the material on record and the
reasoning and while entertaining the second appeal, if there is
any perversity in the finding of the trial Court and Appellate
Court, then, the Court can admit and frame the substantive
question of law.
8. In the case on hand, when the document of Ex.P12
is very clear that possession was delivered at the time of
executing the document of mortgage deed and when there is a
condition to re-deliver the possession having received the
mortgage amount and redeem the same and in terms of the
document of Ex.P12 only relief is granted and under the
circumstances, I do not find any substantive question of law to
invoke Section 100 of the Code of Civil Procedure and also
records reveal that the mortgage deed was executed in the
year 2001 and the same was expired in 2006, but, now we are
in 2025. Almost the appellant had enjoyed with the property
for a period of 25 years, though it was only for a period of 5
years the mortgage was executed. Hence, I do not find any
ground to admit and frame the substantive question of law.
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9. In view of the discussions made above, the Regular
Second Appeal is dismissed.
In view of the dismissal of the Regular Second Appeal,
pending I.A., does not survive for consideration and the same
is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
Bss
