Plaintiffs sought declaration of title and injunction over property allegedly redeemed from a mortgage; both courts below found redemption unproven and dismissed the suit. The High Court found no error or substantial question of law and dismissed the regular second appeal, confirming the judgments of both lower courts.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1310 OF 2023 (DEC)
BETWEEN:
W/O ABDUL KHALAM D/O LATE MOHAMED BUDEN AGED ABOUT 63 YEARS R/O MAHABOOB NAGARA MOCHI COLONY PENSION MOHALLA HASSAN-573201
Digitally signed by B VEENA KUMARI
Location: HIGH COURT OF KARNATAKA
S/O LATE MOHAMMED BUDEN AGED ABOUT 61 YEARS R/O MAHABOOB NAGARA MOCHI COLONY, PENSION MOHALLA HASSAN-573201
(BY SRI. Y. VARUN SAI, ADVOCATE FOR SRI. A. RAVISHANKAR, ADVOCATE)
AND:
W/O K H ABDUL WAJID AGED ABOUT 74 YEARS
R/O SANTHEPETE, HASSAN-573201
R/O BESTHARA BEEDI HASSAN-573201
…RESPONDENTS
(BY SRI. MANOJ KUMAR J Y., ADVOCATE FOR R1 R2 IS SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 19.04.2023 PASSED IN RA NO.55/2022 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM AT HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 28.02.2022 PASSED IN OS NO.437/2014 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant challenging the judgment and decree dated 19.04.2023 passed in R.A.No.55/2022 by the Senior Civil Judge and CJM, Hassan and the judgment and decree dated 28.02.2022 passed in O.S.No.437/2014 by the Additional Civil Judge and JMFC, Hassan.
NC: 2024:KHC:49743 RSA No. 1310 of 2023
based on their ranking before the trial Court. The appellants were the plaintiffs and the respondents were the defendants.
It is the case of the plaintiff, Mohammed Buden @ Nanna Jan was the absolute owner and possessor of property measuring East-West 86 ft. North-South 40 ft. The plaintiffs No.1 and 2 are the children and plaintiff No.3 is the wife of said Mohammed Buden. The said Mohammed Buden died on 01.01.1985 leaving behind the plaintiff as his legal heirs. He had mortgaged the said property in favour of one Smt. Lakshmamma W/o. Thimmaiah under a registered mortgage deed dated 02.02.1966. It is contended that an extent of East-West 86 ft. North-South 20 ft. on the Southern side of the mortgaged property was sold to the mortgagee, Smt. Lakshmamma under a registered sale deed dated 07.04.1966. It is contended
that an earlier mortgage deed dated 02.02.1966 was redeemed and while registering the property, it was clearly recited in the sale deed dated 07.04.1966 that the mortgage was redeemed and the original mortgage deed was handed over to the purchaser, Smt. Lakshmamma. It is contended that the suit schedule property was free from mortgage, and the same was on the Northern side of the property, the property was sold under a registered sale deed dated 07.04.1966 to one Smt. Lakshmamma was on the Southern side. She thereafter conveyed the said property in favour of H.S. Venkatesh, who ultimately conveyed in favour of defendant No.1 under a registered sale deed dated 24.04.2013. It is contended that the plaintiffs are the owners and in possession of suit schedule property. Hence, the plaintiffs filed a suit for a declaration of title and permanent injunction. Accordingly, prays to decree the suit.
contending that the plaintiffs are unknown persons. The
defendant No.2 and his family members are in possession of the property on the Northern side of defendant No.1's property, and the plaintiffs do not have any right over the same. It is contended that defendant No.2 is in possession based on the mortgage deed. Accordingly, prays to dismiss the suit.
contending that he is the absolute owner of the suit schedule property. He denied the other averments made in the plaint. Accordingly prays to dismiss the suit.
pleadings, framed the relevant issues.
and the assessment of oral and documentary evidence, dismissed the suit of the plaintiffs with the cost, vide judgment and decree dated 28.02.2022. The plaintiffs aggrieved by the judgment and decree passed in O.S. No.437/2014 and preferred an appeal in R.A No.55/2022.
the Courts below have failed to consider the recital in Ex.D.8. It indicates that the earlier mortgage was redeemed and the original mortgage deed was handed over to the purchaser, i.e., Lakshmamma. He also submits that the trial Court has reproduced the portion of the recital of Ex.D.8, but the crucial aspect of redemption of the mortgage and the endorsement was not extracted or
NC: 2024:KHC:49743 RSA No. 1310 of 2023
reproduced. He submits that the courts below have not properly appreciated Ex.D.7, i.e., mortgage deed. Hence, on these grounds, prays to allow the appeal.
submissions of the learned counsel of the plaintiffs.
property in favour of the mortgagee Smt. Lakshmamma under a registered sale deed dated 07.04.1996. Though, the appellate Court has extracted the relevant portion of the recital of Ex.P.8, the said recital indicates that the mortgage deed was handed over to the purchaser.
plaintiffs over the suit scheduled property. Further, the appellate Court has considered the admission of PW-1 in his cross-examination, wherein, he has categorically admitted that the mortgage deed neither cancelled nor redeemed. Hence, plaintiffs have not acquired any right over the suit schedule property. Both the Courts below have categorically recorded the finding of facts against the plaintiffs that the plaintiffs have failed to establish that the mortgage deed was redeemed. I do not find any error in the impugned judgment or substantial question of law that arise for consideration in this appeal.
ORDER
in R.A.No.55/2022 by the Senior Civil Judge and CJM, Hassan and the judgment and decree dated 28.02.2022 passed in O.S.No.437/2014
NC: 2024:KHC:49743 RSA No. 1310 of 2023
by the Additional Civil Judge and JMFC, Hassan
are hereby confirmed.
No order as to the costs.
Sd/(ASHOK S.KINAGI) JUDGE
BVK
2 issues framed by the court
Whether the suit schedule property was redeemed from the mortgage so as to confer title on the plaintiffs.
Whether any substantial question of law arose for consideration in this second appeal.
1 provisions across 1 enactments
Mohaboobi
Mohammed Nissar
Thahira Begum
Sannaswamy
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
