The High Court of Karnataka dismissed the second appeal filed by unsuccessful plaintiffs challenging the reversal of an ejectment decree. The Court held the underlying document to be a registered mortgage deed, not a lease, rendering the ejectment suit non-maintainable.
The second appeal was dismissed; no error on face of record found.
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 5TH DAY OF MARCH, 2021
BEFORE
THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY
REGULAR SECOND APPEAL NO.985 OF 2017
BETWEEN:
SRI. JOSEPH D’ SOUZA, SINCE DEAD BY HIS LRS
(BY SRI.PRAKASH M.H., ADVOCATE)
AND:
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RESPONDENT NO.2 & 3 ARE R/AT C/O NAVEEN D’SOUZA, NEAR KIRAN BAKERY, RATHNAGIRI ROAD, CHIKKAMAGALURU – 577 101. … RESPONDENTS
(BY SRI.A.MADHUSUDANA RAO, ADVOCATE FOR R1; Notice to R2 & R3 is D/WITH V/O DATED 16.12.2020)
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 28.01.2017 PASSED IN R.A.NO.32/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKAMAGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 06.02.2016 PASSED IN OS.NO.292/2012 ON THE FILE OF THE 3RD ADDL. CIVIL JUDGE AND JMFC, CHIKMAGALUR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY THROUGH VIDEO CONFERENCE, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This appeal is filed by the unsuccessful plaintiffs
challenging the judgment and decree passed by the I Appellate Court in RA.No.32/2016 by which, a decree of ejectment passed by the trial Court in O.S.No.292/2012 was reversed.
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contended that the document dated 27.03.1997 was not a mortgage but a lease. Therefore, the plaintiff terminated the purported lease in terms of a notice at Ex.P4. The defendant replied to the notice claiming that he was not a lessee but a mortgagee in possession. He further claimed that the plaintiff had leased out vacant land and the defendant constructed a building thereon. It is also claimed that the plaintiff had executed another agreement dated 29.05.1997 entrusting the complete powers of the plaintiff in respect of the suit property to the defendant. He contended that he obtained electricity connection to the building constructed and that he had established the business.
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evidence on record. He contended that in the contemplation of both the plaintiff and defendant, the arrangement between them was an out and out lease and not a mortgage. Learned counsel also contended that there is no relationship of debtor and the creditor and therefore, the suit for redemption was not maintainable. In this regard, the learned counsel brought to my notice the judgment of the learned Single Judge of this Court in the case of K.AMARANATH Vs. PUTTAMMA reported in 2000 (4) KLJ 55 and contended that a mortgage and lease is often used synonymously by the parties without knowing its true intent and purport. He contended that it is the recitals of the document and the conduct of the parties that alone will have to be looked into to ascertain the relationship between the parties.
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mortgage was mentioned and the mortgage money was also clearly mentioned. Therefore, he contended that Ex.P2 was a mortgage in effect and not a lease and therefore, the rights if any of the plaintiff is to seek for redemption and not ejectment of the defendant from the suit schedule property.
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present case, Ex.P-2 was registered and therefore, no oral evidence could be permitted to the contrary. The terms of Ex.P-2 are clear and unambiguous and thus, external aid to interpret it is clearly not permissible. Be that as it may, since Ex.P-2 is a registered conveyance in favour of the defendant, it is absolutely necessary that this document is terminated in accordance with law, else it would be a clog on title of the plaintiff himself. Thus, the I Appellate Court has rightly concluded that the suit for ejectment of the defendant from the suit schedule property was not maintainable and there is no error apparent on the face of record and as no substantial question of law arises for consideration in this appeal, it stands dismissed .
The plaintiff is at liberty to initiate appropriate proceedings for redemption of the mortgage and ejectment of defendant from suit schedule property, which is of course subject to law of limitation. In the event such suit is filed, all contentions are left open.
Sd/JUDGE
NR/-
3 issues framed by the court
Whether an ejectment suit is maintainable when the mortgagor pleads the mortgage deed is actually a lease.
Whether the regular second appeal lies when the appellate court held the document to be a mortgage and rejected the suit for ejectment.
Whether a registered mortgage deed can be interpreted against its clear terms to claim it is a lease.
Colour shows how this judgement treated each authority
K. Amarnath Vs. PuttammaDistinguished¶32
K.AMARANATH Vs. PUTTAMMA reported in 2000 (4) KLJ 55
2 provisions across 1 enactments
LEENA D'SOUZA AND ANR
DHARMESH AND ORS
NATARAJ RANGASWAMY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
