Karnataka High Court
Mrs. Uma Shankar vs Mr. M. Narasimhaiah on 26 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO.820 OF 2016
BETWEEN:
MRS. UMA SHANKAR
AGED ABOUT 48 YEARS,
W/O SHANKAR
R/AT NO.10, KADIRENAPALYA,
INDIRANAGARA
BANGALORE-560 038.
... APPELLANT
(BY SMT. SHOBHA S BHAVIKATTI , ADVOCATE)
AND:
1. MR. M. NARASIMHAIAH
AGED ABOUT 54 YEARS,
S/O LATE SUBBARAYAPPA
R/AT NO.873, 9TH CROSS,
1ST MAIN DEVAPPA LAYOUT,
INDIRANAGARA,
BANGALORE - 560 038.
2. MR. S. SHANKAR
AGED ABOUT 59 YEARS,
S/O MR. SOMASUNDAR
R/AT NO.10 KADIRENAPALYA,
INDIRANAGAR
BANGALORE-560 038.
... RESPONDENTS
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(BY SRI. MAHESH R., ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
26.02.16 PASSED IN OS NO.26383/2013 ON THE FILE OF THE
XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL UNIT, BENGALURU
(CCH 29), DECREEING THE SUIT FOR DECLARATION.
THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned Regular First Appeal is filed by an unsuccessful defendant wherein the plaintiff's suit for possession is decreed directing the defendants herein to hand over possession by accepting a sum of Rs.75,000/-.
2. The parties are referred to as per their rank before the Court below.
3. The subject matter of the suit is a property bearing Old No.24, correspondingly No.10, which is a residential house. The plaintiff has filed the present -3- suit seeking relief of declaration of title and possession from the defendants. It is the specific case of the plaintiff that one Lakshmamma was the absolute owner of the suit schedule property and she, along with her children, sold the suit schedule property to the plaintiff through a registered sale deed dated 8.5.2007. The plaintiff is asserting title on the basis of the registered sale deed dated 8.5.2007. The plaintiff specifically pleaded that the defendants are in possession based on a agreement/possessory mortgage for a sum of Rs.75,000/-. The plaintiff filed an ejectment suit before the Small Causes Court, Bengaluru in S.C.No.15541/2011 by issuing a Quit Notice under the provisions of the Transfer of Property Act, 1882. The said suit was contested by the defendants by contending that they are the mortgagee-in-possession and therefore the ejectment suit was not maintainable. The Small Causes Court -4- having examined the material on record dismissed the suit on the ground that there is no subsisting lease between the plaintiff and defendants and therefore for want of jural relationship, the Small Causes Court was not inclined to grant any relief. Consequently, the ejectment suit was dismissed.
4. Therefore, the present suit is filed seeking the relief of declaration of title to declare the plaintiff as the absolute owner of the suit schedule property and consequentially to direct the defendants to handover vacant possession of the residential house by accepting Rs.75,000/-.
5. The defendants, on receipt of summons, contested the proceedings by filing written statement. The first defendant stoutly denied the entire averments made in the plaint. The defendants contended that on 5.7.1999, the absolute owner viz., -5- Lakshmamma mortgaged the suit schedule property in favour of defendants for a period of five years for a sum of Rs.1,50,000/-. The defendants claimed that the erstwhile owner failed to seek redemption and therefore disputed the title of the plaintiff over the suit schedule property.
6. The trial Court, based on the rival contentions, formulated the following issues:
"1. Whether the plaintiff proves that he is the owner of the suit schedule property by virtue of sale deed dated 8.5.2007?
2. Whether the plaintiff proves that the defendants No.1 & 2 are the tenants of suit schedule property under plaintiff's vendor Smt. Lakshmamma?3. Whether the defendants No.1 and 2
prove that they are the mortgagees of the suit schedule property for Rs.1,50,000/- under the said Lakshmamma for 5 years from 5.7.1999?
4. Whether the plaintiff proves that the defendants No.1 and 2 are agreed to vacate the suit schedule property on 21.2.2013?-6-
5. Whether the plaintiff is entitled to the relief sought?
6. What order or decree?".
7. The plaintiff to substantiate his claim examined himself as PW.1 and adduced documentary evidence vide Ex.P1 to P30. While the defendants examined the first defendant as DW.1 and produced two documents which are marked as Exs.D1 and D2. The Court below having examined oral and documentary evidence on record answered issue No.1 in the affirmative while issue Nos.2 and 3 were answered in the negative. The trial Court having examined the voluminous documents adduced by the plaintiff, more particularly, the title document i.e., the registered sale deed dated 8.5.2007 marked as Ex.P1, was of the view that the plaintiff has succeeded in establishing his title over the suit schedule property. Referring to the title document vide Ex.P1, the Court -7- below held that the plaintiff is the absolute owner of the suit schedule property. While answering issue Nos.2 and 3, the Court below has come to the conclusion that defendants - 1 and 2 having claimed that they are mortgagee-in-possession have not lead any rebuttal evidence. The Court below drew adverse inference against the defendants for having failed to substantiate their claim by producing the mortgage deed. Therefore, issue Nos.2 and 3 were answered in the negative and against the defendants and consequently the suit was decreed declaring the plaintiff as the absolute owner and thereby the defendants were directed to hand over possession of the suit schedule property by receiving a sum of Rs.75,000/-.
8. The defendants assailing the judgment and decree of the Court below are before this Court. -8-
9. Learned Counsel appearing for the defendants reiterating the grounds urged in the appeal memorandum would argue and contend that the plaintiff has not disputed the right of the defendants in the suit schedule property.
She would contend that the plaintiff has admitted that the defendants are mortgagee-in- possession and therefore the present suit, without seeking redemption of mortgage, is not at all maintainable. She would bank heavily on the observations made by the Small Causes Court while dismissing the ejectment suit filed by the plaintiff. Referring to the relevant observations made by the Small Causes Court, she would contend that the status of the defendants stood concluded in the earlier proceedings and therefore the present suit in the present form was not at all maintainable and this aspect is not dealt by the Court below. She would -9- further point out that the question of producing the mortgage deed would not arise in the case as the plaintiff has not disputed that the defendants are mortgagee-in-possession and therefore she would contend that the finding recorded by the Court below and the consequential adverse inference drawn against the defendants for having not produced the copy of the mortgage deed is perverse and therefore would warrant interference at the hands of this Court. She would contend that the right of redemption of a mortgagor being a statutory right, the same needs to be exercised in terms of the proviso to Section 60 of the Transfer of Property Act, 1882. She would further contend that in the present case on hand no decree is passed extinguishing the right of the mortgagee.
10. The learned Counsel appearing for the plaintiff would counter the arguments canvassed by the learned Counsel appearing for the defendants.
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The learned counsel appearing for the plaintiff would contend that the defendants, in fact, are not at all disputing the title of the plaintiff. She would further point out that they do not even have the locus to question the title as they are admitting the title of the plaintiff's vendor Lakshmamma. If the defendants are admitting the title of Lakshmamma, then they cannot question title of the present plaintiff who has acquired valid title and right pursuant to the registered sale deed executed by the erstwhile owner Lakshmamma. She would further contend that there is absolutely no rebuttal evidence to indicate the existence of the mortgage of the property. She would point out that this is the second round of litigation. The earlier ejectment suit was dismissed on the ground that it is not maintainable. The present suit is filed seeking possession based on title and therefore she would contend that the judgment and decree of the Court
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below is in accordance with law and the same does not suffer from any infirmity which would warrant interference at the hands of this Court.
11. Heard the learned Counsel appearing for the defendants and the learned Counsel appearing for the plaintiff.
12. The following points would arise for consideration of this Court:
[i] Whether the Court below erred in declaring the plaintiff as the absolute owner of the suit schedule property?
[ii] Whether the finding of the Court below that defendants - 1 and 2 have failed to prove that they are mortgagees of the suit schedule property and therefore the present suit seeking recovery of possession is not maintainable without seeking redemption of mortgage.
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Point No.(i)
13. The plaintiff asserts that he is the absolute owner of the suit schedule property. To substantiate his title he has produced a copy of the registered sale deed executed by Lakshmamma in his favour and the same is marked as Ex.P1. Under Ex.P1, Lakshmamma, along with her children, has alienated the suit schedule property in favour of the plaintiff under the unregistered sale deed dated 8.5.2007 for valuable sale consideration. Coupled with this title document, the plaintiff has also produced a copy of the legal notice issued by the plaintiff's vendor Lakshmamma.
The defendants to counter the title of the plaintiff, for reasons best known to them, have not lead any rebuttal evidence. Even otherwise, the defendants are asserting that they are mortgagee-in-
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possession and therefore they are disputing the title of the plaintiff only on that count. The transfer of title under Ex.P1, can be questioned by defendants provided they prove that the erstwhile owner has delivered possession by executing a mortgage deed and usufructuary mortgage can be created only by a registered instrument. Under Article 34(a) of the Schedule to the Karnataka Stamp Act, 1957, the duty payable is as that of 'conveyance' under Article 20(1). Therefore to non-suit the plaintiff, it was incumbent on the part of the defendants to produce the mortgage deed. It has come in evidence that the defendants do possess the copy of the mortgage deed, but the said document is not produced. In the absence of a valid document, the defendants cannot dispute the title of the plaintiff. Simply put, it does not deprive the erstwhile owner of her alienable right in favour of plaintiff. The defendants having set up a
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defence in regard to mortgage, heavy burden is cast upon defendants to prove and establish existence of mortgage deed. The defendants have not discharged their burden. Therefore, this Court is of the view that the title of the plaintiff is clear and the transfer made by the erstwhile owner Lakshmamma in favour of the plaintiff is not affected by any collateral transaction between the plaintiff's vendor and the defendants herein. Accordingly point No.1 is answered in the negative.
Point No.(ii)
14. The defendants, though are asserting that they are mortgagee-in-possession, the said defence set up in the written statement is not substantiated. The contention of the defendants that the fact that they have been put in possession pursuant to the mortgage is not seriously disputed by the plaintiff
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cannot be accepted. Though the defendants are banking heavily on Ex.P5, which is a legal notice issued by the erstwhile owner Lakshmamma to the defendants to accept Rs.75,000/- and to deliver possession, the said document will not create usufructuary mortgage to assert right as mortgagee- in-possession, more particularly, usufructuary mortgage whereunder, the terms are to be reduced into writing and are to be sufficiently stamped and registered in the manner known to law. Mere averment in the written statement coupled with the averment in the legal notice would not in itself create a right of mortgage over the suit schedule property. If the erstwhile owner Lakshmamma has delivered possession by receiving Rs.75,000/- from the defendants, that in itself will not create a right under Section 60 of the Transfer of Property Act, 1882, wherein it is incumbent on the mortgagee to seek
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redemption of the mortgage by paying money due under the mortgage. (1)There is no credible evidence indicating creation of mortgage. It is only when mortgage is created, question of seeking redemption would arise for consideration. None of such eventualities would arise for consideration in the present case on hand.Mere admission by the erstwhile owner by issuing legal notice would not in itself create a right in favour of the defendants. Quite interestingly, though such defence was set up in ejectment suit, the defendants have not produced the mortgage deed. (2) As stated supra, the notice issued by the erstwhile owner vide Ex.P-15, there is a reference that the suit schedule property is mortgaged in favour of defendants. A statement in a legal notice would not in itself constitute a relationship of a mortgagor and mortgagee. The defendants are also relying on the findings recorded by the Small Causes Court in an
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ejectment suit vide Ex.P-30. The defendants have also placed reliance on the pleadings and a copy of plaint and written statement is also produced by the defendants which are marked as Exs.D-1 and D-2. Admittedly, the earlier suit was one for ejectment. Therefore, this Court has to examine the legal effect in probative force of the earlier judgment rendered in an ejectment suit. In an ejectment suit, question of examining as to whether the erstwhile owner had mortgaged the suit schedule property would not arise for consideration. Therefore, any observations made in the course of the judgment rendered by the Small Causes Court will not carry any evidentiary value. Therefore, the judgment rendered by the Small Causes Court in S.C.No.15541/2011 vide Ex.P-30 does not fall within Sections 40 to 43 of Indian Evidence Act. Therefore, I am of the view that any observations made by the Small Causes Court while
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dismissing the suit are not found to be relevant. Any observations made in the earlier suit would not affect the rights of the parties in the present case on hand, more particularly when the present suit for possession is based on title. Therefore, any observations made relating to the alleged mortgage transaction between the erstwhile owner and the present defendants cannot be taken as a conclusive evidence and therefore, any observations made in the earlier suit would not bind the plaintiff. In a suit for possession based on title, all that needs to be examined is whether plaintiff's title is clear. If title of the plaintiff is not under serious dispute, the defendants have to demonstrate the nature of possessory rights and have to make out a ground to defend/resist the suit for possession. The defendants claim that erstwhile owner has executed usufructuary mortgage but there is no evidence to that effect.
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Even in the second round of litigation when a suit is filed based on title, the defendants strangely have withheld the said document though it is claimed that they do possess the said document. Therefore, adverse inference has to be drawn against the defendants. If the defendants have not chosen to place on record the mortgage deed, then the findings recorded by the Court below on issue No.3 does not suffer from any irregularity. Therefore, the question formulated by this Court is answered in the negative.
15. For the foregoing reasons, the following conclusions are recorded by this Court:
(a) The plaintiff by producing the registered sale deed vide Ex.P1 has succeeded in establishing his right over the suit schedule property. Therefore, the present suit seeking relief of declaration and
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consequentially seeking possession based on the title is very much maintainable.
(b) The defendants having set up defence indicating that the erstwhile owner has mortgaged the property in their favour, have however failed to produce the mortgage deed. Therefore, the Court below was justified in rejecting the defence set up by the defendants. In the absence of rebuttal evidence by the defendants, the Court below was justified in holding that the defendants cannot resist the present suit. The finding recorded by the Court below on issue No.1 is based on the clinching legal evidence lead in by the plaintiff and in the absence of rebuttal evidence by the defendants.
In view of the aforesaid conclusion, I pass the following:
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ORDER The Regular First Appeal is devoid of merits and is accordingly dismissed.
SD/-
JUDGE nv