Dismissed¶74

Sri Ajjegowda v. Smt Lakshmamma

Karnataka HC3 Nov 2025RSA/841/2024

Case brief

AI extract

What is this about?

Usufructuary mortgage redemption suit; Section 100 CPC second appeal; substantive question of law; concurrent findings; inconsistent/defective pleadings versus documentary evidence; Ex.P12 mortgage deed 2001; Rs. 20,000/- mortgage amount; delivery and re-delivery of possession; Bachhaj Nahar v. Nilima Mandal (MANU/SC/8199/2008) distinguished; appeal dismissed, pending I.A. disposed.

What did the court decide?

Although the plaint pleaded that the plaintiff was in possession, the registered usufructuary mortgage deed Ex.P12 clearly discloses that possession was delivered at the time of execution; documentary evidence prevails over oral evidence, and there is no error on the part of the trial Court and Appellate Court in granting the relief of redemption. ¶65

Sri Ajjegowda Vs Smt Lakshmamma — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the second appeal under Section 100 CPC should be admitted against the concurrent findings of the trial Court and the first Appellate Court, i.e., whether any substantive question of law arises warranting interference. +1 more

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Court's answer

No substantive question of law arises to invoke Section 100 of the Code of Civil Procedure: a second appeal can be admitted only on perversity in the concurrent findings, and none exists here; moreover, the mortgage deed was executed in 2001 and expired in 2006, yet the appellant had enjoyed the property for almost 25 years against a five-year mortgage term.

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Ratio / Principle

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Key takeaways

The decision in Bachhaj Nahar v. Nilima Mandal and Others relied upon by the appellant's counsel does not come to the aid of the appellant, since the recitals of Ex.P12 clearly show delivery of possession under the mortgage and the plaintiff in fact sought the relief of possession.ratio¶68

Detailed headnote1 paragraphs

High Court of Karnataka (H.P. Sandesh, J.) dismissed Regular Second Appeal No. 841 of 2024 challenging the concurrent judgments in O.S. No. 347/2013 (III Addl. Civil Judge & JMFC, Hassan, disposed 15/03/2022) and R.A. No. 70/2022 (Addl. Senior Civil Judge, Hassan, disposed 16/02/2024), which had decreed redemption of a registered usufructuary mortgage (Ex.P12 dated 11.06.2001, mortgage amount Rs. 20,000/-, five-year term expiring 2006) with delivery of possession. Holding: although the plaint pleaded the plaintiff to be in possession, the recitals of Ex.P12 record delivery of possession at execution of the mortgage deed, and documentary evidence prevails over oral evidence; the contention of non-passing of sale consideration and the reliance on Bachhaj Nahar v. Nilima Mandal and Others (MANU/SC/8199/2008) do not aid the defendant/appellant; no substantive question of law under Section 100 CPC arises, particularly as the appellant had enjoyed the mortgaged property for about 25 years against a five-year mortgage term. Pending I.A. disposed of as not surviving.

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NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 841 OF 2024 (RES)

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BETWEEN:

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SRI. AJJEGOWDA S/O SRI. DEVARAJEGOWDA AGED ABOUT 80 YEARS R/O HANUMANAHALLI VILLAGE HALEKOTE HOBLI, HOLENARASIPURA TALUK HASSAN DISTRICT – 573 211.

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…APPELLANT

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(BY SRI. MANJUNATH H, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SMT. LAKSHMAMMA W/O. SRI. SUNDRESH AGED ABOUT 54 YEARS RESIDENT OF

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HANUMANAHALLI VILLAGE HALEKOTE TALUK RESIDING AT: DEVAMMA EXTENSION CHANNAPATTANA VILLAGE, HASSAN DISTRICT

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SMT. YOGAMMA W/O. SRI. VENKATASHETTY AGED ABOUT 71 YEARS RESIDENT OF MUKUNDUR, MALLENAHALLY VILLAGE KARLE POST, KATTAYA HOBLI

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2 - NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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HASSAN DISTRICT

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SMT. KALPANA W/O. SRI. ESHWARA AGED ABOUT 51 YEARS RESIDENT OF KABBINAHALLY VILLAGE HALEKOTE HOBLI, HOLENARASIPURA TALUK HASAN DISTRICT

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SRI. GOPALA SHETTY S/O. SRI KRISHNA SHETTY MAJOR

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SMT. LATHA W/O. SRI. GOPALA SHETTY MAJOR

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RESPONDENT NO. 4 & 5 ARE RESIDING AT: MUKUNDURU, MALLENAHALLY VILLAGE KARLE POST, KATTAYA HOBLI HASSAN DISTRICT

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE OF O.S NO.347/2013 DISPOSED OFF ON 15/03/2022 BY THE COURT OF III ADDITIONAL CIVIL JUDGE AND JMFC AT HASSAN, AND JUDGMENT IN R.A NO.70/2022 ON FILE OF THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, AT HASSAN DISPOSED OF 16/02/2024 AND ETC.,

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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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NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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ORAL JUDGMENT

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This matter is listed for admission. Heard learned counsel appearing for the appellant.

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This second appeal is filed against the concurrent findings of the trial Court and the first Appellate Court passed in O.S.No.347/2013 and R.A.No.70/2022. This second appeal is filed by the defendant No.1 questioning the said concurrent findings.

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The factual matrix of the case of the plaintiff before the trial Court is that there was a mortgage deed of the year 2001 executed in favour of defendant No.1, wherein the defendant Nos.2 to 4 have received an amount of Rs.20,000/- and the mortgage is a usufructuary mortgage and possession was delivered and also the period of mortgage is upto 2006 and subsequent to the expiry of period of 2006, notice was issued. But, the defendant No.1 did not come forward to redeem the mortgage and hence, the plaintiff filed the suit seeking for the relief of redemption of mortgage and document of mortgage is also produced before

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NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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the Trial Court as per Ex.P12 dated 11.06.2001 and also a legal notice was also marked and also earlier documents of sale agreement as per Ex.P2, sale deed as per Ex.P3 dated 03.07.2001 and the suit filed in 2001 i.e., O.S. No.274/2001 were also marked.

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3(i) In support of the claim of the plaintiff, the plaintiff examined her husband as P.W.1 and also got examined one witness as P.W.2 and got marked 29 documents as Exhibits P1 to P29. On the other hand, defendants also examined three witnesses as DWs.1 to 3 and got marked 5 documents as per Exhibits D1 to D5 and placed on record the earlier suit filed in O.S.No.274/2001 for seeking the relief of permanent injunction.

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3(ii) Having considered both oral and documentary evidence, the trial Court taken note of there is a registered mortgage deed in terms of Ex.P12 and the same is for a period of 5 years and on repayment of mortgage amount, defendant No.1 has to redeem the same and the trial Court having considered the material available on record, particularly recitals of document as per Ex.P12, comes to the conclusion that the

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HC-KAR

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period already expired and subsequently, notice was exchanged between the parties and in spite of it, possession was not delivered and also not executed any redemption of document and therefore, the trial Court granted the relief of redemption of mortgage directing the defendant No.1 to receive the amount of Rs.20,000/- and redeem the suit schedule property within 60 days and the same was challenged before the Appellate Court.

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3(iii) The Appellate Court also on re-appreciation of both oral and documentary evidence available on record in R.A. No.70/2022, answered the point Nos.1 and 2 as ‘affirmative’, coming to the conclusion that there was a sale deed in terms of Ex.P3 dated 03.07.2001 executed by defendant Nos.2 and 3 in favour of the plaintiff and also taken note that the trial Court having considered the material on record, directed the defendant No.1 to deliver the possession to the plaintiff by redeeming the mortgage and receive an amount of Rs.20,000/and the Appellate Court held that it does not require any interference of the Court and confirmed the judgment of the trial Court. Being aggrieved by the judgments of the trial Court

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NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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and the Appellate Court, as against the concurrent findings, the present second appeal is filed before this Court seeking to set aside the judgments passed by the trial Court and the Appellate Court.

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The main contention urged before this Court by the learned counsel appearing for the appellant is that the first Appellate Court fails to take note of the fact that the plaintiff has claimed in the suit that she is in physical possession and though she sought for the relief of redemption of mortgage and delivery of possession, but her pleading is contrary and in one breath says that she is in possession and also sought for the relief of possession. Learned counsel would vehemently contend that both trial Court and Appellate Court erred in not considering the admission made by P.W.1 in regard to nonpassing of sale consideration between the vendor and the purchaser and the suit is filed with the ulterior intention to get back the possession from the defendant No.1. Learned counsel would vehemently contend that both Courts committed an error in considering the defective pleadings and erroneously granted

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NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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the relief of possession in favour of the plaintiff and hence, it requires interference of this court.

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Having considered the reasoning given by the trial Court as well as the Appellate Court and also the grounds urged before this Court, the appellant has not disputed the fact that there was a mortgage deed in terms of Ex.P12 and it is also not in dispute the fact that the same is for a period of 5 years and also not in dispute that the period of mortgage had also ended up in 2006. But, the only contention of the appellant is that there was no sale consideration was passed between the vendor and the purchaser and the same cannot be a ground in a suit for redemption of mortgage when the document of Ex.P12 is in existence between the defendant No.1 and defendant Nos.2 to 4, that it is a case of mortgage and the fact that an amount of Rs.20,000/- was paid by the defendant No.1 in favour of the defendant Nos.2 to 4 at the time of entering into the mortgage and there is a clear recital about the refund of the amount of Rs.20,000/- after the expiry of the period of mortgage i.e., five years, he has to execute the document of redemption of mortgage. But, he has not done the same and

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NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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hence, the plaintiff has sought for the relief of redemption of mortgage as well as possession.

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No doubt, it is pleaded in the plaint that the plaintiff

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is in possession, but, the Court has to take note of documentary evidence as per Ex.P12, wherein the possession was delivered and the same is also a usufructuary mortgage and the same is for usage of the property for the amount what the defendant No.1 had paid and when such being the case, the Court has to take note of the fact that the documentary evidence prevails over the oral evidence. Even though there is a pleading, but the fact is that the plaintiff has sought for the relief of possession, which is not in dispute. Learned counsel appearing for the appellant relies upon the judgment of the Hon’ble Apex Court reported in MANU/SC/8199/2008, Bachhaj

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Nahar v. Nilima Mandal and Others and brought to the notice of this Court that the pleadings must be consistent with the oral evidence and brought to the notice of this Court paragraph No.12, wherein discussion was made with regard to where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case

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NC: 2025:KHC:44045 RSA No. 841 of 2024

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HC-KAR

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and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon.

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No doubt, the Hon’ble Apex Court having considered the principles, the Hon’ble Apex Court discussed with regard to the pleadings and the evidence must be in corollary to the pleadings and in the case on hand, I have already pointed out that though it is pleaded that she is in possession, but the documentary evidence as per Ex.P12 clearly discloses that the possession was delivered and the mortgage is also a usufructuary mortgage and when recital of the document is very clear, the documentary evidence prevails over the oral evidence and also relief is sought for possession and mistakenly, it appears that it is pleaded that she is in possession. But, the documentary evidence of Ex.P12 is clear that possession was delivered at the time of executing the document of mortgage deed and when such being the case, I do not find any error on the part of the trial Court and Appellate Court in granting the relief of redemption, the judgment which is relied upon by the learned counsel for the

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HC-KAR

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appellant will not come to the aid of the appellant and the Court has to take note of the material on record and the reasoning and while entertaining the second appeal, if there is any perversity in the finding of the trial Court and Appellate Court, then, the Court can admit and frame the substantive question of law.

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In the case on hand, when the document of Ex.P12 is very clear that possession was delivered at the time of executing the document of mortgage deed and when there is a condition to re-deliver the possession having received the mortgage amount and redeem the same and in terms of the document of Ex.P12 only relief is granted and under the circumstances, I do not find any substantive question of law to invoke Section 100 of the Code of Civil Procedure and also records reveal that the mortgage deed was executed in the year 2001 and the same was expired in 2006, but, now we are in 2025. Almost the appellant had enjoyed with the property for a period of 25 years, though it was only for a period of 5 years the mortgage was executed. Hence, I do not find any ground to admit and frame the substantive question of law.

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