The High Court of Karnataka dismissed an appeal filed by a defendant in a mortgage redemption suit. The court upheld the lower courts' decree favoring the plaintiff who sought to redeem mortgage land, rejecting the defendant's claims of inherited tenancy rights and improvements.
The appeal was rejected as devoid of merits.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2020
BEFORE
THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO
R.S.A.No.2978 OF 2006
BETWEEN:
Gowramma Sheregarthi W/o Galivanthi Subraya Sheregara Age: 58 years R/o.Paduvari village, Kundapur Taluk Udupi District – 576 101.
...Appellant
(By Sri. Vighneshwar S.Shastri, Advocate)
AND:
Mahabala Sheragara S/o. Seshayya Sheregara Age: 60 years R/o. Paduvari Village Kundapur Taluk Udupi District – 576 101.
…Respondent
(By Sri.Vyasa Rao K.S., Advocate)
This RSA is filed u/S 100 of CPC., against the judgment and decree dated:1.8.2006 passed in R.A.No.10/2001 on the file of the Civil Judge (Sr.Dn.), Kundapura, dismissing the appeal and confirming the judgment and decree dated:27.3.1997 passed in OS.
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No.45/1982 on the file of the Prl. Munsiff, Kundapura, D.K.,
This RSA Coming on for dictating judgment this day, the Court delivered the following:
JUDGMENT
Appeal is directed against the judgment passed in R.A.No.10/2001 dated 01.08.2006 by Civil Judge (Sr.Dn.), Kundapura, wherein the appeal came to be dismissed and the judgment and decree of the trial Court dated 27.03.1997 passed in O.S.No.45/82 by Principal Civil Judge, Kundapura is confirmed.
This is the defendant’s appeal.
the parties are referred in accordance with their ranks as stood before the trial Court.
consider the following substantial question of law:
“Whether the impugned judgments passed by the courts-below are
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contrary to the law declared by a Division Bench of this Court in MELE GOWDA V. GAIBU SAB & ANOTHER (1978 (1) K.L.J. 155)?”
plaintiff’s father is one Sheshayya Sheregara who is stated to be the grantee of the schedule land on Mulgeni right and he had executed the mortgage deed dated 26.10.1959 in favour of Dasappa for securing the repayment of Rs.125/-. The defendant’s father who is Dasappa died and the appellant herein who is the defendant before the trial Court claimed that she acquired the right, title and interest in the suit property under the registered settlement deed which is stated to have been executed by her fatherDasappa. She also claims that she has been continued to be a mortgagee with regard to schedule property. She also contended that the plaintiff is a debtor. He did not pay the mortgage amount. He filed
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an application for conferring the occupancy rights in his favour. Plaintiff requested the defendant to redeem the schedule property and when the defendant failed, the plaintiff filed a suit for redemption of mortgage.
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he mortgaged the property in favour of father of the defendant - Dasappa. The source of acquiring the property is that: the father of plaintiff Sheshayya Sheregara was granted occupancy right as Mulgenidar. The defendant further contends that the tenancy petition of Sheregar was rejected and she has been in possession of the schedule property even prior to the execution of mortgage. The tenancy rights of the father of the defendant were in tact. Thus, the defendant rights are of two folds: one is, father of defendant was under tenancy earlier and she has inherited the same from her father. During the tenancy, her father mortgaged the property and the sum and substance of her contention is that the rights of tenancy would continue even after the expiry of mortgage deed.
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6. The learned trial judge on the basis of
pleadings and contentions of the parties, has framed
the following issues:
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entitled to any amount of the value of improvements?
8) What reliefs?
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property that was granted to the father of the appellant/defendant, the rights of the defendant cannot be taken away on the plea of mortgage.
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owner present and there has been objection by petitioner in respect of Sy.No.80/8 stating that he has been in possession and at the time of survey of the said land, the wife of petitioner has stated Sy.No.80/8 is not in their possession. In this connection, the petitioner is not in possession of Sy.No.80/8 and it was not registered in his favour. Thereafter, Ex.P3 is the RTC extract of Sy.No.80/8 of Paduvari, Byndoor Hobli, Muthakka Shedthi is mentioned as Mulgeni, Babu Shedthi, Sushma Shedthi are mentioned as daughters of Muthakka Shedthi - Padvari they are all stated as Mulageni. It is also stated as ‘vÀÄAqÀÄ ¨sÀÆ«Ä ’ -
fragmented land.
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Gowramma in respect of the property measuring 19 guntas of land in Sy.No.80/8.
copy of the mortgage i.e., Ex.P1 and now the question is with regard to contention of the defendant that the said mortgage is unilateral document and has no truth in it. It is also stated that Dasappa Sheregar himself presented the deed of mortgage dated 18.11.1959. The contention of the defendant has been that Phaniamma was the Chalageni tenant in respect of the plaint ‘A’ schedule property.
statement, the defendant stated that the suit schedule property belonging to Phaniamma - the mother of the defendant on Chalgeni rights and hence, defendant
has got the tenanted rights over plaint schedule property. Phaniamma executed settlement deed Ex.D1
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in favour of defendant but in Ex.D4 – defendant has stated that Phaniamma is the Chalgeni tenant of plaint ‘A’ schedule property and also in paragraph Nos.13 and 14 of the written statement, the defendant has contended that Phaniamma was the Chalgeni tenant of ‘A’ schedule property but defendant has not produced any document in this connection, neither the document issued by the competent authority either in favour of Phaniamma or in favour of the defendant who claims under the said Phaniamma. Even Ex.P2 is of no use to defendant as no rights are conferred thereunder.
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reference except mentioning of the different names. However, it is to be remembered that Dasappa was also the mortgager. On the other hand, substantially, it is of no help to defendant and insofar as Ex.D3 is concerned it is a RTC filed by the very defendant.
questions of law arise for my consideration:
1. Whether the oral claim of tenancy override the regular tenancy?
2. Whether the document of the year 1978 confer right in favour of settlement deed so he can confer right on the transferee when there is no specific document in favour of executants?
been on the basis of oral and documentary evidence of the plaintiff. When once the possession is handed over in the mortgage, it continues till redemption of
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mortgage. Meanwhile, a fresh plea of tenancy by the defendant cannot over ride the right of the plaintiff. The defendant also has contended that she has spent Rs.25,000/- towards improvement of suit property and the plaintiff is liable to pay the same. The suit property was an agricultural land and usufructuarily mortgage deed was made in favour of Dasappa executed by Phaniamma, the suit property shown as an agricultural land. Insofar as main contention of tenancy between Dasappa and Sheshaiah sheregar and plaintiff, the defendant has not produced any relevant document to show such declaration regarding tenancy was there before the land tribunal wherein Dasappa Sheregar has made Sheshayya Sheregara as land lord or Mulgenidar in respect of ‘A’ schedule property. Oral tenancy is not established the settlement deed produced by the appellant and there
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is no violation in the judgment regarding the decision
referred in the substantial questions of law.
of the case, the appellant has not made out a case either of lawful possession or for that matter, I do not find irregularity or infirmity in the judgment passed by the trial court and Appellate Court. The substantial questions of law are answered accordingly.
accordingly rejected.
Sd/JUDGE
HJ
3 issues framed by the court
Whether oral claims of tenancy override the plaintiff's lawful possession or regular tenancy rights in a mortgage redemption suit.
Whether a 1978 settlement deed confers right upon a transferee without specific documentation establishing the executants' rights.
Whether the disputed mortgage deed is a valid unilateral document establishing the mortgagee's right to redemption.
Colour shows how this judgement treated each authority
Mele Gowda V. Gaibu Sab & AnotherReferred¶26
MELE GOWDA V. GAIBU SAB & ANOTHER (1978 (1) K.L.J. 155)
Gowramma Sheregarthi
Mahabala Sheragara
N.K. Sudhindrarao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
