Vithalreddy and Ors. Vs Gyanreddy

S/O ANANTHREDDY MARAY, AGE: 77 YEARS, OCC: AGRICULTURE, R/O: VILLAGE, CHILWANTHADI, TQ: NILANGA, DIST: LATUR, MAHARASHTRA 413 522. ALSO RESIDING AT VILLAGE GADIGOUDGOAN, TQ: HULSOOR, DIST: BIDAR – 585 416.

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Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA

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DATTARAYA

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S/O VITHALREDDY MARAY, AGE: 40 YEARS, OCC: AGRICULTURE, R/O: VILLAGE, CHILWANTHADI, TQ: NILANGA, DIST: LATUR, MAHARASHTRA 413 522. ALSO RESIDING AT VILLAGE GADIGOUDGOAN, TQ: HULSOOR, DIST: BIDAR – 585 416.

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SMT. SHAKUNTALABAI W/O VITHALREDDY MARAY AGE: 69 YEARS,

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OCC: HOUSEHOLD, R/O: VILLAGE, CHILWANTHADI, TQ: NILANGA, DIST: LATUR, MAHARASHTRA 413 522. ALSO RESIDING AT VILLAGE GADIGOUDGOAN, TQ: HULSOOR, DIST: BIDAR – 585 416.

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…APPELLANTS

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(BY SRI SACHIN M.MAHAJAN, ADVOCATE)

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AND:

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GYANREDDY S/O ANANTREDDY MARAY, AGE: 89 YEARS, OCC: AGRICULTURE, R/O: VILLAGE CHILWANTHWADI, TQ: NILANGA, DIST: LATUR, MAHARASHTRA 413 522.

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…RESPONDENT

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(BY SRI AJAYKUMAR A.K., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 30.10.2019 PASSED BY THE LEARNED CIVIL JUDGE AND J.M.F.C., BASAVAKALYAN IN O.S.NO.126/2009 AND THE JUDGMENT AND DECREE DATED 09.10.2023 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND J.M.F.C., AT BASAVAKALYAN IN R.A.NO.23/2019 AND DISMISS THE SUIT OF THE PLAINTIFF / APPELLANT BY ALLOWING THE APPEAL WITH COSTS THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE)

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This Second Appeal is arising from the judgment and decree dated 30.10.2019 in O.S.No.126/2009 on the file of Civil Judge, Basavakalyan and judgment and decree dated 09.10.2023 in R.A.No.23/2019 on the file of Senior Civil Judge, Basavakalyan.

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The plaintiff filed a suit for declaration of title and consequential relief of possession in respect of southern portion of the suit land measuring 2 acres 11 guntas in Sy.No.262/1 of Gadigoundgaon village of Basavakalyan. The total extent of land is 4 acres 22 guntas. Declaration is sought in respect of 2 acres 11 guntas in the Southern portion.

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The suit is filed against the brother of defendant No.1 and defendants No.2 and 3 is the son and wife of defendant No.1.

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Plaintiff claimed that on 29.07.1981 he

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purchased the property bearing Sy.No.262/1 measuring 4 acres 22 guntas along with his brother defendant No.1 from the previous owner for a valuable consideration and further claimed that plaintiff and his brother defendant No.1 paid the consideration amount by sharing it equally. It is further stated that in the year 1988, plaintiff and defendant No.1 got the property partitioned between them and in the said partition southern ½ portion of the suit schedule bearing Sy.No.262/1 was allotted to the plaintiff and northern portion was allotted to the share of defendant No.1.

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It is stated that after the partition, plaintiff and

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defendant No.1 became the exclusive owners of the property allotted to their respective share.

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Plaintiff contends that defendant No.1 started interfering in the plaintiff’s peaceful possession and enjoyment of the suit property and plaintiff was constrained to file a suit for declaration and injunction.

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However, during the pendency of the suit, it is alleged that defendants forcibly restrained the plaintiff from cultivating the suit land taking undue advantage of plaintiff’s oldage. Thus, the plaintiff sought alternative relief of possession by amending the plaint.

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Defendants resisted the suit. Defendants have disputed the correctness of boundaries shown in the plaint and also took a stand that the partition took place in the year 1990 and not in the year 1988 as alleged. It is further stated by the defendants that the plaintiff’s son-inlaw by name Tukkareddy was in need of money. Plaintiff sought help of defendant No.1 to meet the financial requirement of his son-in-law and defendant No.1 advanced Rs.1,20,000/- to the plaintiff and the plaintiff was required to repay the said amount in three years. It is further stated that in case, the plaintiff fails to repay the amount, defendant No.1 is entitled to retain the possession of the land till the repayment of the entire loan amount.

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8. Defendant No.1 also contends that possession

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of the suit property was handed over to defendant No.1 pursuant to the aforementioned arrangement as a security to the loan advanced by defendant No.1 to the plaintiff. Thus, defendant No.1 contends that he is entitled to retain the suit land till repayment of loan amount. Defendant No.1 has also filed additional written statement disputing the contentions raised in the amended plaint wherein the plaintiff sought possession of the suit property on the premise that the plaintiff was dispossessed during the pendency of the suit. Defendants asserted that the plaintiff was not dispossessed and the plaintiff voluntarily handed over the possession of the property to defendant No.1 as a security for the loan advanced to the plaintiff.

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It is noticed from the pleadings that the plaintiff’s title over the property is not in dispute. Though defendants disputed the alleged partition of 1988, have come out with a defence that the partition took place in the year 1990 and admits that the southern portion is

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allotted to the share of the plaintiff. Thus, there is no dispute that the plaintiff is the owner of the suit property.

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The only contention raised by the defendants is that defendant No.1 came in possession of the suit property the property was handed over to defendant No.1 as a security for the loan advanced by defendant No.1 to the plaintiff.

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Considering the defence raised there ought to

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have been an issue relating to the payment of alleged loan and transfer of property as a security for the alleged loan. However, unfortunately no such issue is framed. However, it is noticed that the parties have led evidence relating alleged loan transaction and parties went to Trial Court as to what was required to be proved to succeed in the suit based on their respective contentions. Thus, no prejudice is caused for not framing the appropriate issue relating to alleged loan transaction.

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Under these circumstances, the following point

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would arise for consideration:

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Whether the appellants are able to establish the loan transaction and transfer of possession of the property?

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Defendants to substantiate the contention

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relating to the loan transaction have produced Ex.D1 and D2. Ex.D1 is the alleged agreement for loan and Ex.D2 is the original sale deed. The loan agreement is dated 09.05.1996. The loan agreement reveals that defendant No.1 has paid Rs.1,20,000/- to the plaintiff as a loan with a condition that the amount has to be repaid within three years from the date of the loan agreement failing which the plaintiff shall transfer the possession of the suit property to defendant No.1. To substantiate this agreement, defendant No.1 has examined witnesses who are said to be the witnesses to the said agreement. Plaintiff has not denied the signature in the agreement.

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This Court is of the view that the alleged loan agreement dated 09.05.1996 stands proved as nothing worth is elicited to cross-examination of witnesses to the agreement to disbelieve the execution of agreement. However, the next question is whether the plaintiff has handed over the possession of the suit property after three years as contemplated in the loan agreement.

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It is noticed that the Trial Court has held that the agreement is not proved, primarily relying on the statement in the cross-examination of DW.1, wherein he has stated that he has purchased the property pursuant to the agreement dated 09.05.1996. Merely because defendant No.1 contends that he has purchased the property under the agreement dated 09.05.1996, it cannot be said that agreement is not proved. Recital in the agreement would reveal that defendant No.1 is entitled to retain the property in case loan amount of Rs.1,20,000/is not paid to defendant No.1. Probably this recital in the written statement has been wrongly construed by

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defendant No.1 to contend that he has purchased the property from the plaintiff. Said statement cannot take away the effect of the document which evidenced payment of Rs.1,20,000/-. Hence, the loan transaction pleaded by the defendants stands proved.

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Though the loan transaction stands proved, what is required to be noticed is that the plaintiff has not filed any suit to recover the amount as he is not entitled to retain the property unless the document is executed and registered in the form of a mortgage by conditional sale. Admittedly, the document is not registered and the document is also not a mortgage by conditional sale. Under these circumstances, the only remedy for defendant No.1 was to file a suit to recover the amount.

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It is also noticed that the Trial Court has

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accepted the plaintiff’s contention that he has been dispossessed from the suit property. The decree for possession is not questioned by the plaintiff that means the plaintiff is not in possession of the property.

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From the discussions made above, it is

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apparent that the plaintiff is the owner of the property and defendants are not the owners of the property. Hence, the plaintiff is entitled to decree for possession.

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Since this Court has taken a view that the agreement dated 09.05.1996 is established, the Court posed a specific question to the learned counsel appearing for the plaintiff/respondent as to whether the plaintiff would repay the loan amount, learned counsel on instruction from the plaintiff would submit that the plaintiff has received only Rs.60,000/- and he would also submit that since there is no claim for refund, without admitting any legal liability to pay the amount, the plaintiff would repay Rs.90,000/- in all on the condition that the defendants hand over the possession of the suit property to the plaintiff without driving the plaintiff to file execution proceeding.

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Said submission of the learned counsel for the plaintiff to pay Rs.90,000/- in all without admitting any

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legal liability subject to the condition that the defendants shall hand over the possession of the suit property is placed on record. Hence, considering the good gesture of plaintiff that has agreed to pay Rs.90,000/- provided the defendants hand over the possession of the property within three months, the following order is passed:

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ORDER

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(i) Appeal is dismissed.

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(ii) The judgment and decree dated 30.10.2019 in O.S.No.126/2009 on the file of Civil Judge, Basavakalyan are confirmed.

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(iii) The defendants are entitled to receive Rs.90,000/- from the plaintiff if defendants hand over the possession of the suit property to the plaintiff within three months from today.

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(iv) In case, the possession of the property is not delivered to the plaintiff within three months from today, the plaintiff will be under no obligation to repay the amount. However, on his own without there being any liability may deposit the amount before

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the Trial Court in which event the Trial Court shall release the said amount in favour of defendant No.1.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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GVP List No.: 1 Sl No.: 33

Vithalreddy and Ors. v. Gyanreddy

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Vithalreddy and Ors. v. Gyanreddy

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