Karnataka High Court
Shivalingayya S/O Chandrammappa ... vs The State Through Dy Commissioner ... on 11 September, 2024
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NC: 2024:KHC-K:6870
RSA No. 7332 of 2009
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.7332 OF 2009 (DEC/INJ)
BETWEEN:
1. SHIVALLINGAYYA
S/O CHANDRAMAPPA KALSHETTY
DEAD BY LRS
A) KALLAMMA W/O SHIVALLINGAYYA,
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O H.NO.10-708, BRAHMPUR,
GULBARGA-585 103.
(VIDE ORDER DATED 21.01.2023, LRS OF A1(A) ARE
ALREADY ON RECORD AS A1(B) & APPELLANT NO.2)
B) SMT. MAHADEVI W/O SHAMRAO KALSHETTY,
Digitally signed AGE: 50 YEARS, OCC: TEACHER,
by RENUKA R/O SUGUR K, TQ. CHITTAPUR,
Location: HIGH DIST. GULBARGA-585 103.
COURT OF
KARNATAKA 2. NAGENDRAPPA
S/O SHIVALLINGAPPA KALSHETTY,
AGE: 42 YEARS, OCC: GOVT. SERVANT,
R/O H.NO.10-708, BRAHMPUR,
GULBARGA-585 103.
...APPELLANTS
(BY SRI D. P. AMBEKAR, ADVOCATE)
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NC: 2024:KHC-K:6870
RSA No. 7332 of 2009
AND:
1. THE STATE THROUGH DEPUTY COMMISSIONER,
GULBARGA,
2. THE ASST. DIRECTOR OF LAND RECORDS CITY,
GULBARGA.
3. THE DEPUTY DIRECTOR OF LAND RECORDS,
CITY GULBARGA.
4. SMT. ANNAPURNABAI
W/O LATE SHANTAMALLAPPA SEEGI,
SINCE DECEASED BY LRS,
4(A) KAILASH S/O SHANTMALLAPPA SEEGI,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O 10-608, BRAHMPUR, KALABURAGI.
(AMENDED AS PER ORDER DATED 27.05.2024)
5. SMT. MAHANANDA W/O LATE RAJSHEKHAR SEEGI,
AGED ABOUT 50 YEARS, OCC: TEACHER,
R/O H.NO.10-608, BRAHAMPUR,
GULBARGA-585 103.
...RESPONDENTS
(SRI VEERANAGOUDA MALIPATIL, HCGP FOR R1 TO R3;
SMT. MAYA T.R., ADVOCATE FOR R5;
V/O DTD. 05.01.2024 NOTICE TO R4(A) IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE DATED 24.09.2007 PASSED BY THE
I-ADDITIONAL CIVIL JUDGE (SR.DIVN.) AT GULBARGA IN
O.S.NO.157/2004 AND ALSO SET ASIDE THE JUDGMENT AND
DECREE DATED 09.09.2009 PASSED BY THE III ADDITIONAL
DISTRICT JUDGE AT GULBARGA IN R.A.NO.104/2007 AND
ALLOW THE SUIT FILED BY THE PLAINTIFFS.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2024:KHC-K:6870
RSA No. 7332 of 2009
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) Heard the learned counsel appearing for the parties.
2. The appeal is admitted to consider the following substantial questions of law:
i) Whether the Trial Court and the First Appellate Court were justified in dismissing the suit for declaration of title in respect of the suit property, despite the claim of the defendants for specific performance in O.S.No.316/1982 is rejected by the Court?
ii. Whether the appellants are able to establish that the suit property was not subject matter of mortgage dated 09.07.1954?
3. After framing the substantial questions of law, this appeal is taken up for final hearing with the consent of the learned counsel for the parties, as this appeal is of the year 2009.
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
4. The appellant before this Court are the successful plaintiffs before the Trial Court. The suit was for the relief of declaration of ownership, correction of property records and permanent injunction. The suit property is the open space measuring 35 feet North to South and 10' 6" East to West of House No.10-708 situated at Brahmpur, Gulbarga. For better understanding, a sketch is also appended to the plaint. The suit property is bounded on the Eastern side by the house bearing corporation No.10-708 belonging to the plaintiffs, on the Western side by the portion of house of Smt. Annapurna Bai, who is defendant No.4, on the Northern side the property of Smt. Kallamma W/o Shivalingappa Kalshetty and on the Southern side, by the portion of house belonging to Annapurna Bai-defendant No.4.
5. The plaintiffs claim that they owned the property along with the adjacent property and the adjacent property was mortgaged in favour of one Siddamma under registered mortgage deed dated -5- NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 14.05.1952. According to the plaintiffs, when the property was mortgaged in 1952 for Rs.1,200/-, the suit property was excluded from the mortgage and retained by the plaintiffs. It is further stated that as the plaintiffs could not repay the loan amount, the property was mortgaged to another person, who, in turn advanced the loan to the plaintiffs to clear the earlier mortgage of 1952. It is further stated that even while creating second mortgage on 09.07.1954, the suit property remained with the plaintiffs and that property was not mortgaged.
6. Admittedly, defendant No.4, who is the second mortgagee, filed a suit for foreclosure of mortgage in O.S.No.84/1/1960. Said suit was decreed and the sale in favour of the second mortgagee/defendant No.4 is confirmed. The said decree is not questioned by the plaintiffs.
7. Defendant No.4 herein filed a suit in O.S.No.316/1982 for specific performance of contract against the plaintiffs in respect of a property measuring 35 -6- NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 feet North to South and 10' 6" East to West claiming that this property is adjacent to the property, which was subject matter of the second mortgage and the plaintiffs had agreed to sell the property. The plaintiffs of this suit contested the said suit in O.S.No.316/1982.
8. The Trial Court dismissed the suit. The said judgment and decree were questioned by filing an appeal in R.A.No.91/1995. The plaintiff in O.S.No.316/1982, who is defendant No.4 in the present suit, from which this appeal arises, did not prosecute the appeal and the said appeal was dismissed for non-prosecution. Thus, the decree refusing specific performance of contract in respect of open space measuring 35 feet North to South and 10' 6" East to West attained finality.
9. The present suit is filed on the premise that defendant No.4, who was the second mortgagee and who had secured the ownership over the property pursuant to the decree for foreclosure of mortgage is claiming right -7- NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 over the property, which is not the subject matter of the mortgage.
10. Defendant No.4 opposed the claim of the plaintiffs and contended that the suit property was the subject matter of second mortgage and the plaintiffs, who were the mortgagers did not repay the loan amount within stipulated time and under the mortgage of 1954 which was a mortgage by conditional sale. The mortgagee was unable to make a claim for sale for default on the part of the mortgager to repay the loan amount. Nevertheless, defendant No.4, instead of seeking a declaration that she has become the absolute owner of the property, filed a suit for foreclosure of mortgage providing an opportunity to the mortgager to repay the loan amount. The loan amount is not repaid and accordingly, the decree for foreclosure is granted in favour of defendant No.4.
11. It is further contended that the suit for specific performance is not in respect of the suit property, but it was in respect of the property adjacent to the suit -8- NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 property, which was subject matter of the second mortgage. Thus, defendant No.4 prayed for dismissal of the suit.
12. Defendant No.1 is the State, defendant No.2 is the Assistant Director of Land Records and defendant No.3 is the Deputy Director of Land Records. They have been made parties to the suit, as there was a prayer to correct the property records. However, they did not contest the suit.
13. The Trial Court has rejected the claim of the plaintiffs and dismissed the suit. The First Appellate Court also dismissed the appeal, confirming the judgment and decree passed by the Trial Court. Hence, the plaintiffs are before this Court in this second appeal.
14. Sri D. P. Ambekar, learned counsel appearing for the appellants/plaintiffs raised the following contentions:
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
i) The mortgage deeds executed in the year 1952 and 1954 marked at Exs.D1 and D2 are in respect of the properties other than the suit property. The description of the property shown in the sketch appended to the mortgage deed would clearly disclose that the suit property was not the subject matter of the said mortgage of 1952 and 1954;
ii) Ex.D2-the second mortgage was accompanied by a sketch providing for the description of the property in the mortgage. The original of Ex.D2 was with defendant No.4 and defendant No.4 also admitted the said fact in the written statement. Though Ex.D2 is produced in original, the sketch appended to Ex.D2 is forged by showing a wrong description and the Commissioner appointed by the Trial Court to secure the opinion of the expert on the disputed signature has given a report that the signature is forged and the Trial Court could not have rejected the Commissioner's report, which clearly demonstrated that the sketch appended to Ex.D2 is forged;
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
iii) Defendant No.4 filed a suit for specific performance in respect of the suit property and the said suit was dismissed and though an appeal is filed, the appeal is dismissed for non-prosecution and the rejection of the prayer for specific performance having attained finality, defendant No.4 cannot claim any title over the property. If at all the second mortgage was in respect of the entire property claimed by defendant No.4, there could not have been a suit for specific performance of the contract;
iv) Defendant No.4 filed a suit against another neighbor in O.S.No.538/1974 for relief of declaration and injunction and in the said suit, the description of the property is provided showing the property of the present plaintiffs on the northern side and this would indicate that the northern portion i.e., the suit property is retained by the plaintiffs.
15. On the other hand, learned counsel appearing for respondent No.5 raised the following contentions:
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
i) The finding of the Court Commissioner that the sketch appended to Ex.D2 is forged is a wrong finding and the same is demonstrated in the cross-examination and the Trial Court has rejected the report of the expert;
ii) The property which was mortgaged under Ex.D2 also included the suit property and the description shown in Ex.D2 would clearly demonstrate that the property extended up to the property of Sharanappa S/o Basappa Kalshetty on the Northern side and the description did not indicate that Northern side of the property mortgaged is retained by the mortgager;
iii) The suit for specific performance filed by the plaintiffs was not in respect of the suit property, but it was in respect of the property measuring 35 feet North to South and 10' 6" inches East to West. The description in the said suit cannot be construed as the description of the suit property, as the description of the property is different from the description of the property, which was subject matter of the earlier suit for specific performance;
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
iv) The decree obtained by defendant No.4 in her suit for foreclosure of mortgage in O.S.No.84/1/1960 has attained finality and the said description would clearly indicate that the suit property is mortgaged and for which, a decree for foreclosure passed extends up to the property of Sharanappa S/o Basappa Kalshetty on the northern side;
v) The plaintiff No.1, who applied for permission to construct a building in his property has shown the property of defendant No.4 as the property abutting on the western side and he has not shown the property on the western side as portion of his property;
16. This Court has considered the contentions raised at the Bar and perused the records.
17. It is relevant to note that, this Court, vide order dated 03.07.2024 has secured the records in R.A.No.64/1980. Those records were secured in view of the contention raised by the learned counsel for the appellants that the description of the property shown in
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 O.S.No.538/1974 is recorded in the judgment in R.A.No.64/1980. While summoning the records from the Court in R.A.No.64/1980, the learned predecessor of this Court made it very clear that the said document will not be used as evidence before this Court. In the records of R.A.No.64/1980, the judgment in O.S.No.538/1974 is produced. In the judgment in O.S.No.538/1974, the description of the suit property in the said suit is mentioned.
18. Referring to the description shown in the said suit, it is urged that the plaintiff in the said suit, who is defendant No.4 in the present suit, has stated that to the North of the property mortgaged and purchased by her, the property of the present plaintiffs is located. This Court cannot place reliance on the said judgment in O.S.No.538/1974 for the simple reason that, the said suit was filed against one R. Basappa, who is not a party to the present suit and the present defendant No.4 is also not a party to the said suit.
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
19. Moreover, the dispute between plaintiff- Annapurna Bai in the said suit and R. Basappa was in respect of southern portion of the property mortgaged, whereas, the present dispute is in respect of the northern portion of the property mortgaged. This Court in the earlier order dated 03.07.2024 has made it very clear that this document shall not be used as evidence. In addition, there are other reasons for not placing reliance on the judgment in O.S.No.538/1974, which will be discussed during the course of this judgment.
20. The plaintiffs have to succeed in this case by establishing the fact that the suit property was not mortgaged in the year 1954. The entire case of the plaintiffs is based on the contention that the suit property was not the subject matter of the mortgage deed of 1954, which is marked at Ex.D2. The execution of Ex.D2 is not in dispute and plaintiff No.1 himself is the executant. What is disputed is the sketch appended to Ex.D2, which is produced by defendant No.4.
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
21. The contention of the plaintiffs is that, the signature on the sketch is forged by defendant No.4 while producing the same before the Court and it is further contended that the said contention relating to the forgery is established through the expert's opinion, who has given a report stating that the signature of the parties on the sketch appended to Ex.D2 are forged.
22. The report was not accepted by defendant No.4. Defendant No.4 has cross-examined the expert. Admittedly, the signature and contents are in Moodi script. The Court Commissioner in the cross-examination has admitted that he is not familiar with Moodi script and it is also elicited in the cross-examination that the sketch is drawn on a polythene sheet, whereas the remaining part of Ex.D2 is on a normal paper. The Court Commissioner has admitted that the signature taken on a polythene sheet and the signature on the normal paper may differ. This being the position, the Trial Court has rightly refused to accept the report of the expert.
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009
23. In addition to that, what is relevant to note is, Ex.D2 i.e., the mortgage deed produced by defendant No.4 is not disputed by the plaintiffs. Plaintiff No.1 himself is the author of the said mortgage deed. Apart from the sketch appended to Ex.D2, the description of the property is also found in the original mortgage deed, which is an undisputed document. In the original mortgage deed, the northern portion of the property mortgaged is shown as the property of Sharanappa Kalshetty. If at all plaintiff No.1 is to contend that he has not mortgaged the property lying between the property of Sharanappa Kalshetty on the northern side and the property mortgaged on the western side, the plaintiffs ought to have described the northern portion as the remaining portion of the mortgager. Said recital is not forthcoming in the mortgage deed. Said property which is the suit property in this case is described as court yard in the sketch appended to the mortgage deed. If at all the court yard is not the subject matter of the mortgage, the mortgage deed would have disclosed the Northern boundary as the court yard
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 belonging to the plaintiffs. Said description is not forthcoming.
24. This being the position, this Court is of the view that the contention that the sketch appended to Ex.D2 is forged cannot be accepted.
25. Though Sri D.P. Ambekar, learned counsel appearing for the appellants would vehemently urge before this Court that before the Sub-Registrar when appellant No.2 moved an application to secure the copy of the sketch and the copy of the mortgage deed, he received an endorsement stating that the deed is sent to the Court in another proceeding and when he applied for the documents in the Court where the said deed is said to have been sent, he received an endorsement stating that records are not available and based on these circumstances, he would urge that the document at Ex.D2 particularly, the sketch appended to Ex.D2 is forged, this Court is unable to accept the said contention for the simple reason that apart from sketch in Ex.D2, the rest of
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 the contents of Ex.D2 are not in dispute. In fact, that is the document executed by plaintiff No.1 himself. When plaintiff No.1 himself has described the property mortgaged, which is bounded on the northern side as the property of Sharanappa Kalshetty, it is now not open to the plaintiffs to contend that the suit property is not the subject matter of the mortgage.
26. As far as the contention of Sri D.P. Ambekar, learned counsel for the appellants that defendant No.4 filed a suit for specific performance claiming that defendant No.4 is an agreement holder to purchase the said property is concerned, it is to be noticed that the description of the property in the suit for specific performance filed by defendant No.4 in O.S.No.316/1982 is entirely different from the suit property in the present suit.
27. The judgment in the said suit is marked at Ex.P21. Issue No.1 in the said suit would disclose the description of the property as the property measuring
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 35' x 10' 6", whereas, the dimension of the suit property in the present suit is entirely different.
28. Hence, this Court cannot accept the contention that the suit for specific performance filed by defendant No.4 was in respect of the present suit property. In fact, the suit property in the said suit appears to be Eastern portion of the suit property. Hence, the dismissal of the suit for specific performance cannot be construed to hold that the plaintiffs are the owners and in possession of the suit property.
29. It is also relevant to note that plaintiff No.1 has filed an application for permission to construct a building in the portion of the property retained by him, which lies on the eastern portion of the property mortgaged. While applying for permission, plaintiff No.1 has described the western portion of the property as the property belonging to defendant No.4. If at all plaintiff No.1 had retained a portion of the property, which is the suit property, he would have described the western portion as the
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 remaining portion of his property. Said description is not found in Ex.D102-the plan sanctioned in favour of plaintiff No.1.
30. It is further relevant to note that when the suit for foreclosure of mortgage was filed in O.S.No.84/1/1960, the plaintiff in the said suit, who is defendant No.4 herein has described the northern portion of the suit property as the property belonging to Sharanappa Kalshetty. The suit was decreed accepting the said boundary. Pursuant to the decree, the name of defendant No.4, who is the plaintiff in the suit for foreclosure of mortgage is recorded in the property records. The name of plaintiff No.1 in the present suit is not found in the property records of the property, which was subject matter of the suit for foreclosure of mortgage. The said decree has attained finality in the year 1961. The plaintiffs in the present suit have not questioned the said decree.
31. Under these circumstances, this Court has to hold that in case the plaintiffs' claim is accepted, the same
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 amounts to modifying/reversing the decree for foreclosure of the mortgage, which has attained finality in the year 1961.
32. For the aforementioned reasons, this Court is of the view that the plaintiffs are not successful in establishing their title and possession over the suit property.
33. On perusal of the sketch it is noticed that the suit property is described in two different colours, one is in blue colour and another one is in red colour. On re- appreciation of the evidence particularly Ex.P1. This Court is of the view that blue coloured portion in the sketch apparent to the plaint was the subject matter of the mortgage and subject matter of the decree for foreclosure filed by defendant No.4. Defendant No.4 is the owner and in possession of the said suit property.
34. Learned counsel appearing for the respondent would fairly submit that the red coloured portion in the sketch apparent to the plaint was the subject matter of the
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 suit for specific performance and the said suit having been dismissed, defendant No.4 has no claim over the suit property. The said property belongs to the plaintiff.
35. For the aforementioned reasons, the impugned judgment and decree passed by the Trial Court and the First Appellate Court are set aside and the appeal is allowed in part and the suit of the plaintiff is decreed holding that the plaintiffs are the owner and possession of the property measuring 35 feet north-south and 10 feet 6 inch east-west which is shown in the red colour in the sketch apparent to the plaint.
36. Hence, the following:
ORDER i. The appeal is allowed in part.
ii. The judgment and decree dated 24.09.2007 in O.S. No.157/2004 on the file of First Additional Civil Judge (Sr.Dn.), Gulbarga and the judgment and decree dated 09.09.2009 in R.A.No.104/2007 on the file of III Additional District Judge, Gulbarga are set aside.
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NC: 2024:KHC-K:6870 RSA No. 7332 of 2009 iii. The suit of the plaintiffs is decreed in part holding that the plaintiffs are the owners and in possession of the property measuring 35 feet North to South, 10' 6" East to West in suit City Sy.No.2795 of Brahmpur, Gulbarga, which was the subject matter of the suit in O.S.No.316/1982 and consequently, respondents No.4(A) and 5 are restrained by way of permanent injunction from interfering with the plaintiffs' peaceful possession and enjoyment of the suit property.
iv. In case the names of the plaintiffs are not recorded in the property records to the extent of 35' x 10' 6", respondents No.1 to 3 shall enter the names of the plaintiffs/appellants in the said property records to the extent of 35' x 10' 6".
Sd/-
(ANANT RAMANATH HEGDE) JUDGE LG,KBM List No.: 1 Sl No.: 20