Dismissed

Shivappa v. Shivamma

Karnataka HC1 Sept 2022RSA/253/2019

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by a defendant in a mortgage redemption suit. Upholding the concurrent findings of lower courts, the holding concluded that res judicata did not apply as the prior suit was withdrawn due to a settlement assurance that was not honored, meaning the lis was not substantially decided.

What did the court decide?

The regular second appeal and all pending applications are dismissed and disposed of.

Shivappa Vs Shivamma — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.253 OF 2019 (MOR)

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BETWEEN:

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SHIVAPPA S/O THAMMAIAH AGED ABOUT 66 YEARS R/O KALEGOWDANAN KOPPALU VILLAGE KASABA HOBLI, HUNSUR TALUK MYSURU DISTRICT - 570 001. ... APPELLANT

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(BY SRI.ABUBACKER SHAFI, ADVOCATE)

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AND:

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SHIVAMMA W/O BASAPPA AGED ABOUT 61 YEARS

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RAVI S/O BASAPPA AGED ABOUT 37 YEARS

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BOTH ARE RESIDING AT KALEGOWDANA KOPPALU VILLAGE KASABA HOBLI HUNSUR TALUK MYSURU DISTICT - 570 001. ...RESPONDENTS (BY SRI.K S GANESH, ADVOCATE FOR R.1 & 2)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 25.07.2018 PASSED IN RA NO.90/2015 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND JMFC, HUNSUR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.04.2015 PASSED IN O.S. NO.159/2008 ON THE FILE OF THE CIVIL JUDGE AND JMFC AT HUNSUR.

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THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned Second Appeal is filed by the unsuccessful defendant who has questioned the concurrent findings of the Courts below in decreeing the suit for redemption of mortgage.

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For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

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Plaintiffs instituted a suit seeking redemption of mortgage deed dated 30.05.1994. Plaintiffs claimed that the subject matter of the suit is an agricultural land in Sy.No.78 measuring 1 acre 09.08 guntas. Plaintiffs have pleaded that for legal necessity, their predecessor was

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compelled to mortgage the suit land in Sy.No.78/2 in favour of the defendant for a mortgage premium of Rs.12,000/- through registered mortgaged deed dated 01.07.1994 for a period of 3 years. The present plaintiffs who claim to be the legal heirs, have now filed the present suit. Plaintiffs have also specifically pleaded in the present suit that they had in fact filed a suit in O.S.No.61/2008 seeking same relief. However, plaintiffs contended that since defendant assured that he would reconvey the property by receiving a premium amount of Rs.12,000/-, a memo was filed to withdraw the suit. However plaintiffs pleaded that false assurance was given by the defendant and based on his false assurance, plaintiffs bonafide believing that defendant would reconvey the property, withdrew the suit.

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Defendant on receipt of summons, tendered appearance and filed written statement and specifically contended that the present suit is hit by the doctrine of resjudicata and therefore, prayed for dismissal of the suit.

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Plaintiffs and defendant let in oral and documentary evidence.

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The Trial Court having referred to the evidence on record answered issue No.1 in the affirmative while issue No.2 was answered in the negative. While examining issue No.2, the Trial Court did not accept the defence set up by the defendant. The Trial Court was of the view that plaintiffs have laid a foundation and an explanation was offered indicating as to why plaintiffs were compelled to withdraw the earlier suit. It is in this background, the Trial Court was of the view that doctrine of resjudicata is not applicable to the present case on hand. Having answered issue No.2 in the negative, the Trial Court has proceeded to decree the suit by directing the defendant to redeem the instrument dated 30.05.1994.

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Feeling aggrieved by the judgment and decree of the Trial Court, defendant preferred an appeal before the Appellate Court in R.A.No.90/2015. The Appellate Court

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having independently assessed oral and documentary evidence, was also not inclined to entertain the defence set up by the defendant. Having concurred with the findings of the Trial Court, the Appellate Court has proceeded to dismiss the appeal. These concurrent findings are under challenge.

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Heard learned counsel appearing for the defendant and learned counsel appearing for the plaintiffs. Perused the concurrent findings recorded by the Courts below.

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The material on record clearly indicates that the earlier suit in O.S.No.61/2008 was not decided on merits. Defendant is banking on a memo submitted in O.S.No.61/2008. Both the Courts have concurrently held that plaintiffs have withdrawn the suit as defendant assured that he will redeem the property. Plaintiffs in the present suit have contended that having given an assurance, defendant however conveniently retracted from his promise and declined to execute the document by

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receiving the premium amount covered under the registered mortgage deed.

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It is in this background, plaintiff was compelled to file the present suit. The principles of resjudicata as stated in Section 11 of CPC is applicable provided there is finality to the litigation in the previous suit. If the actual lis between the parties was never adjudicated in the earlier suit, then the provisions of Section 11 of CPC are not at all applicable to the subsequent suits. An explanation is offered by the plaintiffs and the compelling circumstances is also narrated in the present suit. Civil disputes are to be decided on the touch stone of preponderance of probabilities. The explanation offered by the plaintiffs appears to be probable and genuine. The pleadings narrated in the plaint are also found to be rational and reasonable. If the earlier suit, seeking redemption was withdrawn reporting settlement and post dismissal of the suit, if defendant has retracted from his promise, the cause of action would survive and therefore, plaintiffs are

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entitled to maintain the second suit. If the actual lis between the parties is not substantially determined and decided in the earlier suit, the principles of resjudicata cannot be extended to the subsequent suit filed on the same cause of action. In that view of the matter, the concurrent findings recorded by the Courts below are found to be legal based on evidence on record and does not suffer from any infirmity.

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Therefore, no substantial question of law would arise for consideration. Accordingly, the regular second appeal is dismissed .

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In view of the dismissal of the second appeal, all pending applications, if any, do not survive for consideration and stands disposed of.

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Sd/JUDGE

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HDK

Shivappa v. Shivamma

Case brief

What is this about?

What did the court decide?

Shivappa v. Shivamma

Case brief

What is this about?

What did the court decide?

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