Karnataka High Court
Hasmath Begum And Ors vs Smt. Gangamma And Ors on 7 November, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 202997 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 202997 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. HASMATH BEGUM D/O LATE HUSSAINNAIK,
W/O OSMAN SAB,
AGED ABOUT 60 YEARS,
OCC AGRICULTURE, R/O R.R. COLONY,
RAICHUR-586 101.
2. SHALAMNAIK S/O LATE HUSSAINNAIK,
AGED ABOUT 40 YEARS,
OCC AGRICULTURE, R/O NAIKAR ONI,
GABBUR VILLAGE, TQ DEODURGA,
DIST. RAICHUR- 584 111.
PETITIONER NO. 2 IS MENTALLY INSANE,
HENCE REPRESENTED BY HIS NEXT FRIEND I.E..
PETITIONER NO.1 (ELDER SISTER)
Digitally signed 3. RANGALAL BEE D/O LATE HUSSAINNAIK,
by SUMITRA AGED ABOUT 48 YEARS, OCC AGRICULTURE,
SHERIGAR
Location: High
R/O NAIKAR ONI, GABBUR VILLAGE,
Court Of TQ DEODURGA, DIST RAICHUR - 584 111.
Karnataka
4. KAMAL BEE D/O LATE HUSSAINNAIK,
AGED ABOUT 45 YEARS,
OCC AGRICULTURE, R/O BUGAYYA BUILDING,
WADI VILLAGE, TQ CHITTAPUR,
DIST KALABURAGI- 585 225.
...PETITIONERS
(BY SRI. GANESH SUBHASHCHANDRA KALBURGI,ADVOCATE)
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AND:
1. SMT. GANGAMMA W/O LATE GANGANAGOUDA POLICE PATIL,
AGED ABOUT 54 YEARS, OCC AGRICULTURE,
R/O RAMDURGA VILLAGE,
TQ DEODURGA, DIST RAICHUR- 584 113.
2. EASHAPPAGOUDA S/O LATE GANGANAGOUDA POLICE PATIL,
AGED ABOUT 28 YEARS, OCC AGRICULTURE,
R/O RAMDURGA VILLAGE, TQ DEODURGA.
DIST RAICHUR - 584 113.
3. MALLAPPAGOUDA S/O LATE GANGANAGOUDA POLICE PATIL,
AGED ABOUT 26 YEARS, OCC AGRICULTURE,
R/O RAMDURGA VILLAGE, TQ DEODURGA,
DIST RAICHUR-584 113.
4. RAMANGOUDA S/O LATE VIRUPAKSHAPPAPOLICE PATIL.
AGED ABOUT 59 YEARS,
OCC AGRICULTURE,
R/O RAMDURGA VILLAGE, TQ DEODURGA.
DIST RAICHUR-584 113.
5. SMT. MAHADEVAMMA W/O LATE VIRUPAKSHAPPA POLICE
PATIL, AGED ABOUT 78 YEARS,
OCC AGRICULTURE,
R/O RAMDURGA VILLAGE, TQ DEODURGA,
DIST RAICHUR-584 113.
6. VEERANGOUDA S/O LATE VIRUPAKSHAPPA POLICE PATIL,
AGED ABOUT 55 YEARS,
OCC AGRICULTURE, R/O RARADURGA VILLAGE,
TQ DEODURGA, DIST RAICHUR-584 113.
7. SUGAREDDY S/O LATE VIRUPAKSHAPPA POLICE PATIL,
AGED ABOUT 50 YEARS,
OCC AGRICULTURE, R/O RAMDURGA VILLAGE,
TQ DEODURGA,DIST RAICHUR-584 113.
8. SMT.DEVAMMA D/O LATE VIRUPAKSHAPPA POLICE PATIL,
AGED ABOUT 57 YEARS, OCC AGRICULTURE,
R/O RAMDURGA VILLAGE, TQ DEODURGA,
DIST RAICHUR-584 113.
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WP No. 202997 of 2024
9. SMT. AKKANAGAMMA
D/O LATE VIRUPAKSHAPPA POLICE PATIL,
AGED ABOUT MAJOR, OCC AGRICULTURE,
R/O RAMDURGA VILLAGE, TQ DEODURGA,
DIST RAICHUR-584 113.
...RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO QUASH THE ORDER
DATED 11TH AUGUST 2023, PASSED ON I.A 7 IN OS NO. 60/2014
AND 61/2014 BEFORE THE CIVIL JUDGE AT DEVDURGA, THE
CERTIFIED COPY OF WHICH IS AT ANNEXURE-F.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR) This petition by the plaintiffs in O.S.Nos.60/2014 and 61/2014 on the file of the Civil Judge, Devadurga, is directed against the impugned order dated 11.08.2023, whereby the application I.A.7 filed by the petitioners under Order 12 Rule 6 CPC seeking judgment and decree passed on admission was rejected by the trial court.
2. Heard learned counsel for both sides and perused the material on record.
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3. A perusal of the material on record will indicate that the petitioners - plaintiffs instituted the aforesaid suits against the respondents - defendants for redemption of mortgage and for consequential reliefs in relation to the suit schedule immovable properties. The said suit is being contested by the respondents -
defendants who have filed their written statement. During the pendency of the suits, the petitioners filed the instant application invoking Order 12 Rule 6 CPC on the ground that in certain other proceedings including the writ petition before this Court and proceedings before the Land Tribunal, the respondents -
defendants had admitted the claim of the petitioners and in view of the said admission, the continuation of the suit would be a exercise in futility and it is necessary to take note of the admissions, act upon them and decree the suits in favour of the petitioners based on the said admissions in accordance with the Order 12 Rule 6 CPC. The said application having been opposed by the respondents - defendants, the trial court proceeded to pass the impugned order rejecting I.A.7 by holding as under:-
-5-NC: 2024:KHC-K:8213 WP No. 202997 of 2024 " This is an interim application filed by the learned counsel for the plaintiffs under order XII Rule 6 R/w section 151 of CPC seeking prayer to pass the decree on the admission made by the defendants of usufructuary Mortgage with regard to the suit scheduled properties and to redeem the same in favour of plaintiffs to meet the ends of justice.
2. In the accompanying affidavit of the interim application, the plaintiff No.2 has stated that she solemnly affirms and states on oath and on behalf of other plaintiffs as they fully instructed her to depose on behalf them, she know the facts and circumstances of the case.
3. She further stated that she has filed a case for declaration with regard to the suit scheduled properties No. KLR/SR/1214 on the file the Hon'ble Chairman Land Tribunal at Devadurga on 02-12-1981 and in that case the defendants themselves have made an admission of usufructuary Mortgage for the suit scheduled properties in line No.8, 9 and 10 of paragraph No.3 of page No.1 and the same copy of Declaration No. KLR/SR/1214 is marked as Exhibit-206 series
4. She further stated that the defendants had filed a writ petition No.30603 of 1982 on the file of Hon'ble High Court of Karnataka, Bangalore with regard to the suit scheduled properties and in that Writ petition the defendants themselves had made an admission of usufructuary Mortgage in line No.8, 9, 10, 11, 12 and 13 of Paragraph No.3 of Page No.3 and redeem the suit scheduled properties in favour of plaintiffs, the order copy of the Writ Petition has been marked as Exhibit-199 series.-6-
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5. She further stated that the defendants had filed a Writ Petition No.28235 of 2009 on the file of Hon'ble High court of Karnataka, Bangalore and in that Writ petition the defendants themselves have made an admission of usufructuary Mortgage with regard to the suit scheduled properties in line No.36 and 37 of Paragraph No.1 Page No.4, the copy of Writ Petition has been marked as Exhibit
-201 series.
6. She further stated that the defendants have made their admission of usufructuary Mortgage with regard to the suit scheduled properties in line No.16, 17, 18, 19 and 20 of Paragraph No.7 of Page No.2 in Written Statement filed by them for O.S.No.60/2014 on 30-10-2014.
7. She further stated that the defendants have made their admission of usufructuary Mortgage with regard to the suit scheduled properties in line No.22, 23, 24 and 25 of Paragraph No.7 of Page No.2 in Written Statement filed by them for O.S.No.61/2014 on 30-10-2014. Hence, she has prayed to allow the interim application.
7. Per contra, the learned counsel for the defendants had filed an objection to interim application, wherein he has contented that suit of the plaintiffs is false, vexatious, frivolous and same is not maintainable either in law or on facts. Hence, the same is liable to be dismissed.
8. He further contented that the defendants prayed, the Hon'ble court may be pleased to peruse the written statement as part and parcel of this objection. The pleading of both the parties itself clearly shows that, as per the contention of the plaintiffs, the alleged documents are usufructuary mortgage deeds. As per the contention of the -7- NC: 2024:KHC-K:8213 WP No. 202997 of 2024 defendants, which are sale deeds. Therefore, such serious dispute to be tried by way of full pledged trial. On that count, the application filed by the plaintiffs is liable to be dismissed.
He further contented that the sworn affidavit of the plaintiff No.2, which is filed in support of I.A.No.VII is in individual capacity. The other plaintiffs concerned, the application is silent and the present application cannot be maintained by one of the plaintiff. On that count also, the application is liable to be dismissed.
He further contented that the averments made in para No.3 to 7 of the sworn affidavit of the plaintiff No.2 are all false and baseless and same are hereby specifically denied and plaintiff No.2 is hereby called upon to strict proof of the same. On that count, the application filed by the plaintiff No.2 is liable to be dismissed.
He further contented that the averments made in para No.3 to 5 of the sworn affidavit of the plaintiff No.2 concerned, the defendants have already answered in their written statement. The said proceedings initiated before the land tribunal and also about the High Court concerned, the defendants have taken specific plea in their written statement and they have not admitted those documents and which are seriously disputed by them. Therefore, the defendants have not at all admitted that, the alleged documents are usufructuray mortgage. The plaintiffs falsely claiming that, the defendants have admitted about the alleged usufructuray mortgage. The Ex.P199, 201 and 206 are also seriously disputed by the defendants by way of -8- NC: 2024:KHC-K:8213 WP No. 202997 of 2024 filing the written statement. On that count also, the application is liable to be dismissed.
He further contented that the averments made in para Nos. 6 and 7 of the sworn affidavit of plaintiff No.2 are also hereby specifically denied and plaintiff No.2 is hereby called upon to strict proof of the same. The defendants further submit that, the defendants have not at all admitted about the alleged mortgage in their written statement. Moreover, as per the settled law, the admissions are always explainable by the parties. Therefore, the application filed by he plaintiff No.2 is fit to be dismissed.
He further contented that the defendants have not at all admitted anywhere about usufructuray mortgage. On the other hand, it is the specific contention of the defendants that, they have purchased the suit properties for valid consideration and also they are the owners of the suit properties. Therefore, there is no admission on the part of defendants. The plaintiff No.2 wrongly invoked the order XXII Rule 6 provision. Hence, the application filed by the plaintiff No.2 is liable to be dismissed. Hence he prays to dismiss the IA No. VII filed by the plaintiff No.2 with exemplary costs, in the interest of justice.
10. Heard on both sides and perused the case papers.
11. The points that have arisen for my consideration are as under:
Point No.1: Whether the plaintiffs have made out grounds in the interim application for decree the suit as per admissions made in the writ petitions and declaration in the land tribunal ?
Point No.2 : What order?-9-
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12. My answers to the above points are as under. Point No.1: In the negative Point No.2: As per final order for the following REASONS
13. Point No.1: Learned counsel for the plaintiffs has submitted during the hearing that the defendants have admissions in the land tribunal and writ petition No.30603 of 1982 and 28235 of 2000 and admissions made in the written statement para No.7 of O.S.No.60/2014 and O.S. No.61/2014. He prays to decree the suit as per admissions.
On the other hand learned counsel for the defendants has submitted during the hearing that the defendants have not admitted in the written statement and they are denying the same in their written statement and they are contending that suit properties are purchased for valid consideration and owners of the suit properties. He prays to dismiss the interim application Perused the case papers it reveals that this is a suit filed by the plaintiffs for the decree for redemption of usufructuary mortgage deed No.332/1968-69 dated 04-05- 1968, mortgage deed No.333/68-69 dated 04-06-1968 and direction to execute the necessary deed of reconveyance in favour of them and put them in actual possession of the mortgaged suit schedule properties Perused the sworn affidavit, the plaintiff No.2 has stated that the defendants have filed a case for declaration with regard to the suit schedule properties No. KLR/SR/1214 before land tribunal at Devadurga dated 02-
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 12-1981 and admissions made in the writ petition No.30603/1982 and writ petition No.28235/2000 and admissions in the written statement para No.7 of 60/2014 and 61/2014.
Perused the written statement of defendant No.4 of O.S. No.60/2014 has contented in the written statement para No.7 that the said Hussain Nayak executed not a usufructuary mortgage deed in respect of suit lands under registered deed bearing document No.332/1968-69 in favour of Shri Gangagouda S/o Virupakshappa the said Hussain Nayak was not debtor and said Ganganagouda was not a creditor and there was/is no such debtor and creditor relationship in between them. The said Husain Nayak, executed the said document of sale with an condition of repurchase of suit properties. Accordingly, he agreed to repurchase the suit lands form said Ganganagouda, by making payment on or before 30- 05- 1973. The said document contains a valid agreement to repurchase the suit lands. Therefore, the said document is not a usufructuary mortgage and it is purely out and out sale deed. As per the condition mentioned in the said document, if the mortgagor repays the said sum of Rs.25,000/-(Rupees Twenty Five thousand only) on or before 30-05-1973, the sales hereby made shall become void and the mortgage is shall at the cost of mortgagor re transfer the suit property to the mortgagor. The said agreement clearly shows that, the said document is an out and out sale deed. But the said Hussain Nayak, failed to repurchase the suit lands, within the said stipulated period. Accordingly, deceased Ganganagouda had, become the
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 absolute owner of the sut lands, from the date of execution of the said document by said Hussain Nayak. The said Ganganagouda based on the said document, got mutated the suit lands, in his name, as owner and other defendants have been enjoying the said lands as joint family members, as absolute owners from the banks.
Perused the written statement of defendant No.1 of O.S. No.61/2014 has contented in the written statement para No.7 the late mortgager Hussain Nayak who is a lost propositus of plaintiffs had mortgaged the plaint schedule landed properties with possession in favour of defendant No. 1 as per registered Mortgage Deed No. 333/1968-69 for a loan of Rs. 20,000/- and same is hereby denied and plaintiffs are hereby called upon to strict proof of the same. The defendant No. 1 further submits that, said Hussain Nayak executed not a usufructuary mortgage deed, in respect of land Sy. No. 759 measuring 9 acres 37 guntas, land Sy No 760 measuring 15 acres 16 guntas, and land Sy No. 762 measuring 13 acres 32 guntas, all situated at Gabbur village, Tq: Deodurga under registered deed bearing document No. 333/1968-69, in favour of Sri Ramanagouda S/o Virupakshagouda i.e. defendant No. 1. The said Hussain Nayak was not a debtor and defendant No. 1 is not a creditor and there was/is no such debtor and creditor relationship in between them. The said Husain Nayak, executed the said document of sale with a condition of repurchase of said properties. Accordingly, he agreed to repurchase the said lands form the defendant No. 1, by making payment on or before 30-05-1973. The said document contains a valid agreement to repurchase
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 the said lands. Therefore, the said document is not a usufructuary mortgage and it is purely out and out sale deed. As per the condition mentioned in the said document, if the mortgagor repays the said sum of Rs. 20,000/- (Rupees Twenty thousand only) on or before 30- 5-1973, the sale hereby made shall become void and the mortgage is shall at the cost of mortgagor retransfer the said property to the mortgagor. The said agreement, clearly shows that, said document is an out and out sale deed. But, said Hussain Nayak, failed to repurchase the said lands within the said stipulated period. Accordingly, defendant No. 1 has become the absolute owner of the said lands from the date of execution of the said document by said Hussain Nayak. The defendant No 1 based on the said document, got mutated the said lands in his name as owner and other defendants have been enjoying the said lands as joint family members as absolute owners from the year 1968 itself. The defendants being absolute owners availed loan from the banks.
14. The learned counsel for the plaintiffs has submitted the following decisions
1. Uttam Singh Dugal and Co. Ltd. Versus Union Bank of India and others.
S.P.L. (C) No.12511 of 1999 dated 08-08-2000. The Hon'ble Supreme Court of India has held that Civil Procedure Code, 1908 (CPC)- Order 12, Rule 6 Admission Defendant making plain admission entitling plaintiff to succeed Rule applicable where there is clear admission of facts on the face of which it is impossible for defendant to succeed.
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 In the objects and reasons set out while amending Rule 6, of Order 12 C.P.C. it is stated that "where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. Where other party has made a plain admission entitling the former to succeed, it should apply and also whenever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed. Civil Procedure Code, 1908 (CPC) Order 12, Rule 6 - Admission Suit for recovery of money Suit decreed on statement made in proceedings of meeting of Board of Directors and the letter when read together leads to unambiguous and clear admission to the extent to which admission made Trial Court justified in holding that there is an unequivocal admission of contents of documents Admissions are either in pleadings or in answer to interrogatories or implied from pleadings by non- traverse Decree cannot be challenged on ground as to what kind of admissions are covered by Order 12, Rule 6 of C.P.C. When a statement is made to a party and such statement is brought before the Court showing admission of liability by an application filed under Order XII, Rule 6 and the other side has sufficient opportunity to explain the said admission and if such explanation is not accepted by the Court, we do not think the trial Court is helpless in refusing to pass a decree. We have adverted to the basis of the claim and the manner in which the trial Court has dealt with the same. When the trial Judge states that the statement made in the proceedings of the Board of Directors meeting and the letter sent as well as the pleadings when read
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 together, leads to unambiguous and clear admission with only the extent to which the admission is made is in dispute. And the Court had a duty to decide the same and grant a decree. We think this approach is unexceptionable. The petitioner does not deny a word of what was recorded therein and what is denied is the allegation to the contrary. The denial is evasive and the learned Judge is perfectly justified in holding that there is an unequivocal admission of the contents of the documents and what is denied is extent of the admission but the increase in the liability is admitted. Evidence Act, 1872- Sections 18 to 23 Defendant making plain admission entitling plaintiff to succeed Rule applicable where there is clear admission of facts on the face of which it is impossible for defendant to succeed.
2. Ram Rattan (Dead) by Lrs. Versus Devi Ram and others. Civil Appeal No. 1541 of 2011.
The grievance of the appellants is that the Mortgage was 45 years before filing of the suit, therefore, they have become owners of the suit property. The Full Bench of Punjab and Haryana High Court, in "Ram Kishan & Ors, Vs. Sheo Ram & Ors." has held that there is no limitation period in case of usufructuary mortgage. "Once a mortgage always a mortgage" the principle applied.
3. AIR 2010 SC 2077 Karam Kapahi & Ors. Versus M/s Lal Chand Public Charitable Trust & Anr. The hon'ble Supreme Court of India has held at para No.48 and 49 that (A) Civil P.C.(5 of 1908), O. Rr. 6,1 Judgment on admission- Expression " admission of fact either in pleading or otherwise whether orally or in writing"- Giveswider sweep to 0. 12, R. 6 than O. 12, R. 1.
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48. In the 54th Law Commission Report, an amendment was suggested to enable the Court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering judges to use it 'ex debito justitiae, a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the Court always retains its discretion in the matter pronouncing judgment.
49. If the provision of order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider in as much as the provision of order 12 Rule 1 is limited to admission by pleading or otherwise in writing' but in Order 12 Rule 6 the expression or otherwise is much wider in view of the words used therein namely: admission of fact ....either in the pleading or whether orally or in writing'. otherwise,
4. High court of Karnantaka Bengaluru Lae Indravathi Srinivasan & others. Versus DR. Sunitha Venugopal and others. Writ Petition No.17829/2018 (GM CPC).
5. RFA 293/2021, CM APPLs. 26906/2021 & 26908/2021, SH. Dinesh Sharam Versus MRS. Krishna Kainth. The Hon'ble High Court of Delhi at New Delhi. This court gives respects to the above decisions, these decisions are not help to the plaintiffs side.
14. The learned counsel for defendants has submitted the following decisions.
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1. 2018(1) KCCR 561 Naraindas Bodaram. Versus Sri Shanmugavel. Civil Revision Petition No. 140 of 2017 (IO).
Code of Civil Procedure, 1908 [C.A. No.5/1908]- Order 12 Rule 6- Judgment on admission- Admission must be absolute capable of being worked out on strength of admission- If admitted fact cannot independently stand or convey any meaning, court in exercise of discretion cannot pass decree on admission.
2. 2003 AIR (SCW) 1210 Kasturi Bai & others Versus Angur Chaudhary Civil APPeal No.818 of 2001 dated 05- 02- 2003.
Civil Procedure Code, Order 32 Rule 15- Unsound mind person Appointment of Court Guardian- Inquire about state of mind of appellant No.1, and medical examination, of necessary before a guardians appointed for defending in the suit. Trial court rejects the application for appointment of a court guardian without adjudicating upon the merits of the application Therefore the appellant court could not direct the trial court straightaway to appoint court guardian- The matter directed to be remitted to the learned trial judge for consideration of the matter afresh strictly terms of Order 32 Rule 15 of the Code. [Paras 10 to 12].
3. 1973 AIR (Bom) 276 Somnath Versus Tipanna Ramchandra Jannu A.F.O.D. No. 250 of 1972 dated 20- 10- 1972.
Further, the defendant No.4 by name Ramanagouda S/o Virupakshappa Police patil had filed written statement in O.S.No.60/2014, perused the same, it suffice that he is not admitted the usufructuary mortgage deed No.332/1968-69
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 dated 04-05-1968 further, the defendant No.1 by name Ramanagouda S/o Virupakshappa Police Patil had filed written statement in O.S.No.61/2014, wherein he has not admitted that 333/1968-69 dated 04-06-1968, the said registered document is not a mortgage deed and it was executed by Hussain Nayak as sale with a condition to repurchase of suit properties. Further, the defendants No.1 to 3 and 5 to 9 have filed a memo in O.S.No.60/2014 on 30-10- 2014 by stating that they have adopting the written statement of defendant No.4 as their written statement. Further, the defendants No.2 to 9 have filed a memo in O.S.No.61/2014 on 30-10-2014 by stating that they have adopting the written statement of defendant No.1 as their written statement.
Perused the Ex.P199, it is the writ petition No.30603 of 1982 dated 05-12-1984, the Hon'ble High of court Karantaka, Bangalore has held at para No.2 of the order of writ petition that but however, he submits that he is in possession of about 90 acres of land as a mortgagee in possession, he has to deliver back the possession of those lands after redemption of mortgage. Perused the Ex.P200, certified copy of the writ petition No.28235 of 2000 dated 03-08-2006, the Hon'ble High of court Karantaka, Bangalore has held at para No.5 of the order of writ petition stated that WP No.30603 of 1982 quashed the order of the land tribunal and remitted the proceedings for fresh disposal, while recording a finding that by excluding 90 acres of land in possession of declarant as a mortgagee, from out the total holdings of 324 acres 19 guntas, the declarant would not hold land in excess of the ceiling limit.
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 On demand the declarant in his statement dated 26-09- 1987 concerned to surrender a total of 78 acres 11 guntas comprised in serveral Survey numbers as mentioned in Annexure- "G" which ws in excess of the ceiling limit. Perused the Ex.P201 is the certified copy of the writ petition which was filed by the Virupaxa S/o Ramanagouda.
Perused the Ex.P206 is the certified copy of declaration filed by the declarant by Virupashappa before the Land tribunal Devadurga in No.KLR/SR/1214, dated 30-12-1981, wherein he has stated that therefore the declarant is entitled retain the land to the extent of 226 acres 32 guntas of law. Hence the declarant is entitled to surrender to the extent of 96 acres 2 guntas only as surplus of the declarant is in possession over the 94 acres 2 guntas as mortgagee. Perused the Ex. P203, it is the writ petition No. KLR/ SR/1214 dated 30-12-1981, the Hon'ble Land Tribunal Devadurga has held at para No.1 of the this is a case in which the land lord has submitted the reply and has stated that the declarant is having three major sons and the same has to be considered and has stated that he is having some mortgaged land and that has to be considered the Special Tahasildar after due verification and declaration has but the check cost after considering the major sons and has stated that the declarant is having 96-26 acres of land as excess. The land tribunal has accepted check list put up Special Tahasildar. The declarant has also accepted the same. Therefore, the land tribunal is hereby order u/s 67(1) of KLR Act the declarant is havint 96-26 acres of the land surplus.
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15. I would to like refer the order 12 rule 6 of CPC. Judgment on admissions.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
Order 12 Rule 6 provision clearly provided provision that admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the defendants have denied the mortgage deeds No.332/1968-69 dated 04-05-1968 and 333/1968-69 dated 04-06-1968 and contents of plaint, mere admissions in the writ petitions and declaration before the land tribunal are not a ground for decree the suit. It requires full fledged trial. Therefore, considering the facts of this case and provision of law, this court has come to conclusion that the plaintiffs have not made out grounds in the interim application for decree the suit. Thus this court answers the point No.1 in the negative.
15. Point No. 2: Aforesaid reasons this court proceeds to pass following.
ORDER
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 Interim application No.7 filed by the learned counsel for the plaintiffs under order 12 Rule 6 and R/w section 151 of CPC is hereby rejected.
No order of cost."
4. A perusal of the impugned order and the material on record will indicate that the trial court has come to the correct conclusion that in the facts and circumstances obtaining in the case, it was impermissible in law invoking Order 12 Rule 6 CPC to decree the suit passed in favour of the petitioners - plaintiffs against the respondents based on the alleged admission made in other proceedings. I do not find any illegality or infirmity in the impugned order passed by the trial court warranting interference by this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India as held by the Apex Court in the case of Radhey Shyam Vs. Chhabi Nath - (2015) 5 SCC 423.
5. Accordingly, I do not find any merit in the petition and the same is hereby disposed of without interfering with the impugned order. However, the petitioners are at liberty to urge all the contentions urged in I.A.No.7 at the time of final disposal of the suits and the trial court is hereby directed to dispose of the
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NC: 2024:KHC-K:8213 WP No. 202997 of 2024 aforesaid suits as expeditiously as possible. All rival contentions between the parties are kept open and no opinion is expressed on the same.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE Srl.
List No.: 1 Sl No.: 16