Smt. Lakshmamma Vs Smt. Vijayalakshmi

SMT. SUDHA U.H., W/O SIDDESH, AGED ABOUT 44 YEARS, R/O SIDDESHWARA NILAYA, D.N.311/88, SHRESHYAM LAYOUT, SIDDESHWARA MILL COMPOUND, III CROSS, III MAIN, DAVANAGERE-577 002.

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SMT. PARVATI, W/O J.MURUGESH, AGED ABOUT 54 YEARS, MANASA, D.NO.76, NEAR M.M. SCHOOL, BEDAGUBETTA, KORANGAPADI, BYLUR, NEAR KALAKIRANA CLUB, UDUPI - 576 101.

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VISHWANATH U.H., S/O LATE K. HANUMANTHAIAH, AGED ABOUT 48 YEARS, SRIGANDHA, 7^TH CROSS, SHARAVATI NAGARA, SHIVAMOGGA-577 201.

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NC: 2025:KHC:26932 RSA No. 1593 of 2024

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HC-KAR

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SRINIVAS H., S/O LATE K. HANUMANTHAIAH, AGED ABOUT 50 YEARS, NEAR ANANYA VIDYAPETA, KANNADA SAMSKRUTI BHAVANA, ASHOK NAGAR, SHIVAMOGGA-577 202.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 20.09.2024 PASSED IN R.A.NO.35/2023 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, PARTLY ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 01.08.2023 PASSED IN O.S.NO.185/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission. Heard the learned

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counsel for the appellants.

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This appeal is filed against the concurrent finding.

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The factual matrix of the case of the plaintiffs before the Trial Court in O.S.No.185/2018 is that the suit schedule property belongs to the plaintiffs and there was an unregistered mortgage deed dated 25.11.1996 for the mortgage amount of Rs.35,000/-. The husband of defendant

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No.1 and father of defendant No.2, Sri K.Hanumaiah had taken the possession of the suit schedule property for the mortgage period of four years from Sri M.R. Mahabala Shetty. It is their case that after the negotiation and settlement with Sri K.Hanumaiah, they have returned the mortgage amount of Rs.35,000/- along with the repair charges of the suit schedule property to Sri K.Hanumaiah through cheques as Sri K.Hanumaiah has agreed to redeem the mortgage and came forward to deliver the vacant possession of the suit property in favour of the plaintiffs. It is their contention that the payment of Rs.35,000/- and other repair charges of Rs.60,000/- was received. He failed to return the vacant possession of the suit schedule property during his lifetime and subsequently after his death, even the defendants have failed to deliver the vacant possession of the suit schedule

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property to the plaintiffs. Hence, filed the suit for the recovery of vacant possession of the suit schedule property and also filed the suit for damages at the rate of Rs.8,000/per month from the hands of defendants for unauthorised occupation of the suit schedule property from the date of suit till realisation.

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It is the specific contention of the defendants in

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the written statement that the suit is bad for non-joinder of necessary parties. There was a sale transaction between Sri M.R.Mahabala Shetty and Sri K.Hanumaiah and also took the contention that agreed to sell the property for an amount of Rs.10,00,000/- and also made the payment of Rs.2,00,000/-.

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Having considered the pleadings of the parties,

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the Trial Court framed the issues and allowed the parties to lead evidence. The plaintiffs in order to prove their case examined plaintiff No.2 as P.W.1 and got marked the documents at Exs.P.1 to P10. On the other hand, the defendants also examined defendant No.2 as D.W.1 and got marked the documents at Exs.D1 to 19. The Trial Court having considered the material available on record, comes to the conclusion that there was a mortgage, but mortgage deed was unregistered and hence the suit filed for the relief of possession is maintainable. The Trial Court in paragraph No.24 observed that an amount of Rs.35,000/-, in total an amount of Rs.95,000/-, including the repair charges of Rs.60,000/- was paid by way of cheques and granted the

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relief of damages, as claimed by the plaintiffs at the rate of Rs.8,000/- per month.

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Being aggrieved by the said judgment and decree, an appeal was filed in R.A.No.35/2023. The Appellate Court having re-assessed the material available on record and considering the grounds which have been urged in the appeal, formulated the points whether the plaintiffs prove that they have got right to get the possession of the suit schedule property from the defendants, whether the impugned judgment is against the law, facts, evidence, and probability of the case and liable to be interfered by this Court. The Appellate Court having considered the material on record, observed that the property belongs to the plaintiffs and that the suit property originally belonged to Sri K.R. Gurupadappa and it was purchased by one Sri Rangappa Shetty, who is the father of husband of plaintiff No.1 and grandfather of plaintiff No.2 vide sale deed dated 06.06.1965. According to the plaintiff, after the death of said Rangappa Shetty, khatha was changed in the name of his son Mahabala Shetty, who died on 19.06.2016 and the plaintiffs being his wife and son have succeeded to the suit property. Based on the unregistered

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mortgage deed, filed the suit and also taken note of the defence which have been taken. The Appellate Court also dealt with the matter, particularly taking note of Ex.P.6 legal notice and reply notice given in terms of Ex.P.9, wherein categorically admitted that it was a mortgage transaction. The Appellate Court in paragraph No.16 taken note of that an amount of Rs.35,000/- was paid under the unregistered document and comes to the conclusion that the suit is maintainable for recovery of possession.

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7. The Appellate Court in paragraph No.17 discussed

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with regard to the document Ex.P.1 was the basis for claiming that they are the owners and apart from that, the Appellate Court also re-assessed the material available on record that defendants Nos.1 and 2 are residing in the suit schedule property. The Appellate Court also taken note of the transaction between the parties and also the payment of Rs.35,000/- as well as Rs.60,000/- spent towards repair i.e., Ex.P.10 payment made through the account extract of their bank account. The Appellate Court also taken note of the defence of the defendants in paragraph No.19 that when they claim that there was a sale transaction and agreed to sell the

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property for Rs.10,00,000/- and a substantial amount of Rs.2,00,000/- was paid, nothing is placed on record. All the materials were considered by the Appellate Court and also with regard to the damages is concerned, in detail discussed that in order to prove the claim of Rs.8,000/- of damages, nothing is placed on record and hence comes to the conclusion that liberty is given to the plaintiffs to file a separate petition for determining the quantum of damages, after getting the possession of the suit property from the defendants modifying the judgment of the Trial Court and confirmed the judgment with regard to the delivery of possession is concerned.

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Being agreed by the said judgment, the present second appeal is filed before this Court.

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The learned counsel for the appellants would vehemently contend that the plaintiffs have not produced the mortgage deed and the very relationship is disputed. The learned counsel also would vehemently contend that when the notice was issued under Section 106 of the Transfer of Property Act, the same was considered as cause of action to file a suit for mere recovery of possession without landlord

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and tenant subsisting and no relationship existed and converted into the mortgager and mortgagee and the very approach of the Trial Court as well as the Appellate Court is erroneous and hence this Court has to frame the substantial question of law.

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Having heard the learned counsel for the appellants and also on perusal of the material available on record, the Trial Court when the suit was filed for the relief of possession in respect of the suit schedule property is concerned, taken note of the admissions on the part of the parties with regard to the mortgage transaction is concerned and also taken note of the document was not placed before the Court, since the document was an unregistered document. But, there was an admission on the part of the defendants themselves while giving the reply in terms of Ex.P.9 that there was a mortgage transaction and with regard to the claim of no relationship of mortgager and mortgagee, both the Courts taken note of the said fact into consideration regarding reply. With regard to an amount of Rs.35,000/- is concerned also taken note of in paragraph No.24 of the Trial Court judgment for having made the payment in terms of Ex.P.10, that is

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Rs.35,000/- plus Rs.60,000/- towards the repair charges, since defendant Nos.1 and 2 on negotiation have claimed that they have conducted the repairs of the building and the same was also agreed. For having made the payment also the same was taken note of by the Trial Court as well as the Appellate Court. When the appeal was filed before the Appellate Court, the Appellate Court having considered the material with regard to the damages is concerned, comes to the conclusion that in order to claim the damages of Rs.8,000/-, no material is placed before the Court and hence liberty was given to the plaintiffs to file a separate proceedings and seek for the relief of damages. When such material is considered by both the Courts, even comes to the conclusion that there is a clear admission on the part of the parties with regard to the relationship between the parties and also having made the payment of Rs.35,000/- and also taken note of the fact that possession was not re-delivered and considered both material on record i.e., factual aspects as well as question of law regarding maintainability of the suit. When such being the case, both the Courts considered both oral and documentary evidence available on record, particularly payment of amount and hence, I do not find any

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perversity in the finding of the Trial Court and the Appellate Court and when such material is available on record, I do not find any ground to admit the second appeal and frame any substantial question of law, as contended by the learned counsel for the appellants.

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