Karnataka High Court
Sri P Basavanna vs Smt. Jagadhamba on 6 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:44910
RSA No. 865 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 865 OF 2025
BETWEEN:
SRI P BASAVANNA
S/O LATE PUTASWAMAPPA,
AGED ABOUT 65 YEARS,
R/AT ACHAGUNDLA VILLAGE,
KASABA HOBLI,
NANJANGUD TALUK-571301
...APPELLANT
(BY SRI. NANJUNDA SWAMY N., ADVOCATE)
AND:
1. SMT. JAGADHAMBA
W/O. LATE. MAHADEVASHETTY,
AGED ABOUT 73 YEARS
Digitally signed
by JUANITA 2. SRI. KRISHNA
THEJESWINI
S/O. LATE MAHADEVASHETTY,
Location: HIGH AGED ABOUT 58 YEARS.
COURT OF
KARNATAKA
3. SRI. LOKESH
S/O. LATE. MAHADEVASHETTY,
AGED ABOUT 54 YEARS.
RESPONDENTS NO.1 TO 3 ARE
R/AT TELUGU SHETTARA BEEDI,
KALALE VILLAGE, KASABA HOBLI,
NANJANGUD TALUK-571118
...RESPONDENTS
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NC: 2025:KHC:44910
RSA No. 865 of 2025
HC-KAR
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGEMENT AND DECREE DATED 01.10.2024 PASSED IN
RA NO. 32/2020 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, NANJANGUD, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DATED
16.06.2020 PASSED IN OS NO.85/2012 ON THE FILE OF II
ADDITIONAL CIVIL JUDGE AND JMFC, NANJANGUD AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
`
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel appearing for the
appellant-plaintiff.
2. This matter is listed for admission and the
appeal is filed against the concurrent findings.
3. The factual matrix of the case of the plaintiff
before the trial court while seeking the relief of declaration
and permanent injunction specifically pleaded that
defendants have lost their right of redemption and also
lost their right to recover possession of the suit schedule
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property and plaintiff became the absolute owner of the
suit schedule property and also the contention that
defendants are interfering with possession and defendants
No.1 and 3 appeared and filed the objections, stating that
they are entitled to delivery of possession of the suit
schedule property since mortgage period is over, and also
they are entitled for mesne profits and separate inquiry to
be held for determination of the same and additional issue
was also framed based on the written statement of
defendant No.2, that the alleged mortgage deed dated
18.11.1974, executed by his father in favour of plaintiff is
not binding on him and further contention that the suit is
barred by limitation. The trial court having given
opportunity to both parties, considered both oral and
documentary evidence available on record and answered
the issue No.1 as negative that he is not entitled for the
relief of declaration as sought. However, the trial court
comes to the conclusion that plaintiff is entitled for
possession and if entitled for permanent injunction that
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there is an interference by the defendants and also
answered issue No.3 partly in affirmative, coming to the
conclusion that the plaintiff was entitled for permanent
injunction unless the property was redeemed under law,
i.e., due process of law and answered issue No.4 to 6 as
negative. So also additional issue Nos.1 and 3 as negative
and additional issue No.2 is answered as affirmative and
ultimately granted the relief of permanent injunction and
dismissed the suit for declaration. The same is challenged
before the Appellate Court in R.A.No.32/2020, and
Appellate Court also having considered the grounds which
have been urged in the appeal memo, formulated the
point whether the judgment and decree of the trial court in
dismissal of the suit for declaration is an erroneous
observation and whether it requires interference of this
Court and Appellate Court also having reassessed the
material available on record, confirmed the judgment of
the trial Court and dismissed the appeal. Being aggrieved
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by the concurrent findings, the present second appeal is
filed before this Court.
4. The counsel appearing for the appellant would
vehemently contend that both the courts have committed
an error in coming to the conclusion that Ex.P1 is
usufructory mortgage under Section 58(d) of the TP Act
and respondents are entitled to redeem the mortgage and
they are entitled to recover the possession of the schedule
property from the appellant and also both the courts were
not justified in coming to the conclusion that respondents
are entitled for the relief of redemption, even though the
same is barred by law and hence this Court has to admit
the second appeal and frame substantial questions of law.
5. Having heard the appellant counsel and also the
reasons assigned by the trial court and particularly
considering the factual aspects of the case, plaintiff has
sought for the relief of declaration that defendants have
lost their right to redeem and lost their right to recover
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possession of the schedule property. Defendants' main
contention is that they are entitled for the relief and also
entitled for possession of the property and trial court
having considered the document of mortgage deed comes
to the conclusion that the plaintiff is not entitled for the
relief of declaration and also passed an order that they are
entitled for permanent injunction consequent upon taking
into note of the mortgage and also specific order was
passed entitling the plaintiff for permanent injunction until
and unless they redeem the mortgage in accordance with
law. The finding of the trial court is also very clear that
until and unless they redeem the mortgage in accordance
with law and also while seeking the relief of the
redemption of mortgage and the same has to be
considered in accordance with law and the very contention
of the appellant counsel that the same is barred by time
and time is stipulated and the said ground can be urged
before the trial court, since already the respondents have
filed the suit in O.S.No.2501 of 2020 and all other
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grounds available to the appellant can also be urged in a
suit for redemption filed by the respondents and no
ground is made out to admit and frame any substantial
question of law with regard to the rejection of prayer of
declaration. Hence, it is not a case for admitting the
second appeal and framing any substantial question of law
invoking Section 100 of CPC.
6. In view of the discussions made above, I pass
the following;
ORDER
(i) The second appeal is dismissed.
(ii) Keeping the observations made hereinabove, the
appellant having right to raise all defences in accordance
with law.
Sd/-
(H.P.SANDESH)
JUDGE
KLY/-
