Karnataka High Court
Vithoba Vijayrangan Madaliyar vs Mallaprabha Raghunathrao Shinde on 20 December, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 1397 OF 2005 (MOR)
C/W
REGULAR SECOND APPEAL NO. 1399 OF 2005 (MOR)
IN RSA NO. 1397 OF 2005:
BETWEEN:
1. SHRI. VITHOBA VIJAYRANGAN MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A. SHRI. SHASHIKANT S/O VITHOBA MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A(i) SMT. SAVITRI SHASHIKANT MADALIYAR,
AGE. 76 YEARS, OCC. HOUSEHOLD WORK,
R/O. "SHREE. PUSHPAM" GULMOHAR COLONY,
MIDC AREA, MIRAJ, DIST. SANGLI,
MAHARASHTA STATE-416416.
1B. CHANDRAKANT S/O VITHOBA MADALIYAR,
AGED ABOUT 80 YEARS, OCC: RAILWAY EMPLOYEES
(NOW RETIRED), R/O. Q.NO 126/A, RAILWAY QUARTERS,
BELGAUM.( NOW #24B, 6TH CROSS, SHASTRI NAGAR,
VIJAYALAKSHMI BELAGAVI-590001.)
M KANKUPPI
Digitally signed by
VIJAYALAKSHMI M
1C. MISS. SHALINI VITHOBA MADALIYAR,
KANKUPPI
Date: 2023.12.28 (SINCE DECEASED R/BY HER LR'S
16:13:06 +0530
APPELLANT NO.1A(i) TO 1D HEREIN)
1D. SHIRISH KUMAR S/O VITHOBA MUDALIAR,
AGED ABOUT 72 YEARS, OCC: DRIVER,
R/O. TIPPU SULTAN NAGAR, HUNCHANATTI
CROSS, PIRANWADI, BELGAUM( NOW BELAGAVI),
PIN CODE-590014.
2. SHRI. THARUNAKKARASU RAJARATHINAM MUDALIYAR,
SINCE DECEASED BY L.RS.(DEFENDANT NO.2)
R/BY THEIR GENERAL POWER OF ATTORNEY HOLDER
SHRI. CHANDRAKANT VITHOBA MUDALIAR,
AGE. 80 YEARS, OCC: SERVICE (NOW RETIRED),
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
R/O. RAILWAY QUARTERS NO.126/A, CAMP, BELGAUM.
(NOW #24B, 6TH CROSS, SHASTRI NAGAR),
BELAGAVI-590001.
2A. SMT. T. SAKUNTALA W/O SRI. R. THIRYANAVAKKARASU,
SINCE DECEASED AND HER L.RS ARE ALREADY ON
RECORD AS 2B AND RESPTS.NO.2 TO 6.
2B. T. VIJAY KUMAR S/O SHRI. R. THIRYANAVAKKARASU,
AGE. 70 YEARS, OCC: PRIVATE SERVICE,
NO.6, III EAST MAIN ROAD, GANDHI NAGAR,
VELLORE-632006, TAMIL NADU.
... APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SMT. MALLAPRABHA RAGHUNATHRAO SHINDE,
AGE. 71 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
2. SMT. SUREKHA D/O LATE RAGHUNATHRAO SHINDE,
AGE. 52 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
3. SMT. JYOTI D/O LATE RAGHUNATHRAO SHINDE,
AGE. 32 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
4. SMT. ASHWINI D/O LATE RAGHUNATHRAO SHINDE,
AGE. 30 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
5. SMT. RAJANI D/O LATE RAGHUNATHRAO SHINDE,
AGE . 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. 313, KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
6. KUMAR NAHA S/O CHANDRAKANT SHINDE,
AGE. 40 YEARS, OCC. STUDENT, R/O. 313,
KHOLEKAR BUILDING, S.P.M. ROAD,
BELGAUM (NOW BELAGAVI), PIN CODE-590001.
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
7. KUMARI NAVEETA D/O CHANDRAKANT SHINDE,
AGE. 37 YEARS, OCC. STUDENT,
R/O. 313, KHOLEKAR BUILDING,
S.P.M. ROAD, BELGAUM (NOW BELAGAVI),
PIN CODE-590001.
8. SMT. SHANTABAI W/O GUNDU SHINDE,
SINCE DECEASED BY HER L.RS.
AS RESPONDENTS NO.8(A)-(J) HEREIN.
8A. SHRI. AMAR MARUTI SHINDE,
AGE. 60 YEARS, OCC. BUSINESS,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8B. SHRI. SHRIPAD @ SHREEPATI MARUTI SHINDE,
AGE. 47 YEARS, OCC. BUSINESS,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8C. SMT. SUSHILA INDURAO MANE,
AGE. 59 YEARS, OCC. HOUSEHOLD WORK,
R/O. NEHARU NAGAR, BELGAUM (NOW BELAGAVI),
PIN CODE-590016.
8D. SMT. SUMITRA GUNDU SHINDE,
(SINCE DECEASED R/BY HER LR'S)
R8D(i) SMT. PRADNYA PARASHURAM PATIL,
AGE. 58 YEARS, OCC. SERVICE,
R/O. R.K. NAGAR, KOLHAPUR,
MAHARASHTRA-416013.
R8D(ii) SHRI. VINAY BALASAHEB MANWADKAR,
AGE. 60 YEARS, OCC. SERVICE,
R/O. SWAMI, VIVEKANANDA COLONY,
TILAKWADI, BELAGAVI-590006.
8E. SMT. SUBHADRA ANIL JADHAV,
AGE. 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. HOSUR, BASAVAN GALLI,
SHAHAPUR, BELGAUM (NOW BELAGAVI)
PIN CODE-590003.
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
8F. SMT. SULYA GOVINDRAO TENDULKAR,
AGE. 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. 6TH CROSS, NAZIR CAMP,
VADAGAON, BELGAUM (NOW BELGAVI),
PIN CODE-590005.
8G. SMT. RAJANI CHANDRAKANT SHINDE,
AGE. 57 YEARS, OCC. SERVICE,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8H. KUMARI. NAINA @ NEHA D/O CHANDRAKANT SHINDE,
AGE. 30 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8I. KUMARI. MENAXI @ NAVEETA D/O CHANDRAKANT
SHINDE, AGE. 27 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
PIN CODE-590002.
8J. SMT. SUGANDHA GUNDU SHINDE,
AGE. 40 YEARS, OCC. HOUSEHOLD WORK,
R/O. TARA-CHOWK, ICHALKARANJI,
DIST. KOLHAPUR, MAHARASHTRA STATE,
PIN CODE-416116.
9. SMT. S. PREMA W/O D. SAMPATH,
AGE. 56 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. D. SAMPATH (B.E.)
TAMILNADU ELECTRICITY BOARD,
NO.10, 2ND MAIN ROAD,
KORATTUR, CHENNAI TAMILNADU,
PIN CODE-600080.
10. SMT. T. RANI W/O B. SUBRAMANI,
AGE. 50 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. B. SUBRAMANI, REVENUE DEPARTMENT,
VELLORE, NO. O.S.M.O. KILL STREET KOSAPET,
VELLORE-632002.
11. SMT. K. CHANDIYA LAKSHMI W/O C. KAMALRAJ,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
R/O. C/O. C. KAMALRAJ S. RLY. CHENNAI,
NO.37, SOUTH JEGNATHA NAGAR,
VILLIVAKKAM, CHENNAI, PIN CODE-600049.
12. SMT. M. GEETA W/O N. MANI,
AGE. 46 YEARS, OCC. HOUSEHOLD WORK,
R/O. H. MANI TECHNICAL ASSISTANT, SHANKAR
CEMENTS, TALAVAI, POST ECHANKADU VIRUDHACHALAM
(VIA) TAMIL NADU, PIN CODE-606001.
13. SMT. R. MALATHI W/O RAVI,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. MR. RAVI, JUNIOR ASSISTANT,
COMMERCIAL TAX NO.6, EAST MAIN ROAD,
GANDHI NAGAR, VELLORE-632006,
TAMILNADU.
14. SMT. KAVITA KISHOR SHINDE,
AGE. 65 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
15. MISS. ANAGHA D/O. KISHOR SHINDE,
AGE. 29 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
... RESPONDENTS
( R1 TO R4 ARE SERVED;
R5 TO R7, R8 (G,H,I)- SRI. DEEPAK C. MAGANUR, ADVOCATE;
R8(A)(i) SERVED; R8(A)(ii) & R8(A)(iii) ARE MINORS & R/BY
R8(A)(i);
FOR R8(B)-SRI. SHRIVATSA S. HEGDE, ADVOCATE;
R8(C) SERVED; FOR R8(D,E,F & J)-SRI. D. RAVI KUMAR GOKAKKAR,
ADVOCATE; FOR R9 TO R13-SMT.VIDYA IYER & SRI. RAGHAVENDRA
RAO ADVOCATES; FOR R14 & R15 AND R1(D)(i) & R1(D)(ii)- SHRI.
SANGRAM S. KULKARNI, ADVOCATE)
THIS RSA IS FILED U/O 42 R 1 R/W SECTION 100 OF CPC
AGAINST THE JUDGEMENT & DECREE DTD. 21.3.2005 PASSED IN
R.A.NO.74/1999 ON THE FILE OF THE III ADDL.CIVIL JUDGE
(SR.DN.), BELGAUM, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD. 17.11.1998 PASSED IN OS
NO.495/1990 ON THE FILE OF THE IV ADDL.CIVIL JUDGE (JR.DN.),
BELGAUM.
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NC: 2023:KHC-D:14968
RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
IN RSA NO. 1399 OF 2005:
BETWEEN:
1. SHRI. VITHOBA VIJAYRANGAN MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A. SHRI. SHASHIKANT S/O VITHOBA MADALIYAR,
SINCE DECEASED BY HIS L.R'S.
1A(i) SMT. SAVITRI SHASHIKANT MADALIYAR,
AGE. 76 YEARS, OCC. HOUSEHOLD WORK,
R/O. "SHREE. PUSHPAM" GULMOHAR COLONY,
MIDC AREA, MIRAJ, DIST. SANGLI,
MAHARASHTA STATE-416416.
1B. CHANDRAKANT S/O VITHOBA MADALIYAR,
AGED ABOUT 80 YEARS, OCC: RAILWAY EMPLOYEES
(NOW RETIRED), R/O. Q.NO 126/A, RAILWAY QUARTERS,
BELGAUM.( NOW #24B, 6TH CROSS, SHASTRI NAGAR,
BELAGAVI-590001.)
1C. MISS. SHALINI VITHOBA MADALIYAR,
(SINCE DECEASED R/BY HER LR'S
APPELLANT NO.1A(i) TO 1D HEREIN)
1D. SHIRISH KUMAR S/O VITHOBA MUDALIAR,
AGED ABOUT 72 YEARS, OCC: DRIVER,
R/O. TIPPU SULTAN NAGAR, HUNCHANATTI
CROSS, PIRANWADI, BELGAUM( NOW BELAGAVI),
PIN CODE-590014.
2. SHRI. THARUNAKKARASU RAJARATHINAM MUDALIYAR,
SINCE DECEASED BY L.RS.(DEFENDANT NO.2)
R/BY THEIR GENERAL POWER OF ATTORNEY HOLDER
SHRI. CHANDRAKANT VITHOBA MUDALIAR,
AGE. 80 YEARS, OCC: SERVICE (NOW RETIRED),
R/O. RAILWAY QUARTERS NO.126/A, CAMP, BELGAUM.
(NOW #24B, 6TH CROSS, SHASTRI NAGAR),
BELAGAVI-590001.
2A. SMT. T. SAKUNTALA W/O SRI. R. THIRYANAVAKKARASU,
SINCE DECEASED AND HER L.RS ARE ALREADY ON
RECORD AS 2B AND RESPTS.NO.2 TO 6.
2B. T. VIJAY KUMAR S/O SHRI. R. THIRYANAVAKKARASU,
AGE. 70 YEARS, OCC: PRIVATE SERVICE,
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
NO.6, III EAST MAIN ROAD, GANDHI NAGAR,
VELLORE-632006, TAMIL NADU.
... APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SMT. SHANTABAI W/O GUNDU SHINDE,
SINCE DECEASED BY HER L.RS.
AS RESPONDENTS NO.1(A) TO 1(J).
1A. SHRI. AMAR MARUTI SHINDE,
AGE. 60 YEARS, OCC. PRIVATE WORK,
R/O. 4464, CHAVAT GALLI,
BELGAUM (NOW BELAGAVI),
-590001.
1B. SHRIPAD @ SHREEPATI MARUTI SHINDE,
AGE. 47 YEARS, OCC. PRIVATE WORK,
R/O. 4464, CHAVAT GALLI,
BELGAUM NOW BELAGAVI)
590001.
1C. SMT. SUSHILA INDURAO MORE,
AGE. 59 YEARS, OCC. HOUSEHOLD WORK,
R/O. NEHARU NAGAR, BELGAUM NOW BELAGAVI,
-590012.
1D. SMT. SUMITRA GUNDU SHINDE,
(SINCE DECEASED R/BY HER LR'S
AS R1(D)(i) & R1D(ii)).
R1D(i) SMT. PRADNYA PARASHURAM PATIL,
AGE. 58 YEARS, OCC. SERVICE,
R/O. R.K. NAGAR, KOLHAPUR,
MAHARASHTRA-416013.
R1D(ii) SHRI. VINAY BALASAHEB MANWADKAR,
AGE. 60 YEARS, OCC. SERVICE,
R/O. SWAMI, VIVEKANANDA COLONY,
TILAKWADI, BELAGAVI-590006.
1E. SMT. SUBHADRA ANIL JADHAV,
AGE. 44 YEARS, OCC. HOUSEHOLD WORK,
R/O. HOSUR, BASAVAN GALLI,
SHAHAPUR, BELGAUM NOW BELAGAVI
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
590003.
1F. SMT. SULYA GOVINDRAO TENDULKAR,
AGE. 42 YEARS, OCC. HOUSEHOLD WORK,
R/O. 6TH CROSS, NAZIR CAMP,
VADAGAON, BELGAUM NOW BELGAVI,
590005.
1G. SMT. RAJANI CHANDRAKANT SHINDE,
AGE. 57 YEARS, OCC. SERVICE,
R/O. 4464, CHAVAT GALLI,
BELGAUM, NOW BELAGAVI,
-590001.
1H. KUMARI. NAINA @ NEHA D/O CHANDRAKANT SHINDE,
AGE. 30 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAVI, NOW BELAGAVI,
-590002.
1I. KUMARI. MEENAXI @ NAVEETA D/O CHANDRAKANT
SHINDE, AGE. 27 YEARS, OCC. STUDENT,
R/O. 4464, CHAVAT GALLI,
BELGAVI, NOW BELAGAVI,
PIN CODE-590002.
1J. SMT. SUGANDHA GUNDU SHINDE,
AGE. 40 YEARS, OCC. HOUSEHOLD WORK,
R/O. TARA-CHOWK, ICHALKARANJI,
DIST. KOLHAPUR, MAHARASHTRA STATE,
PIN CODE-416115.
2. SMT. S. PREMA W/O D. SAMPATH,
AGE. 56 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. D. SAMPATH (B.E.)
ASSISTANT DIVISIONAL ENGINEER,
TAMILNADU ELECTRICITY BOARD,
NO.10, 2ND MAIN ROAD,
KORATTUR, CHENNAI TAMILNADU,
PIN CODE-600080.
3. SMT. T. RANI W/O B. SUBRAMANI,
AGE. 50 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. B. SUBRAMANI, REVENUE DEPARTMENT,
VELLORE, NO.9 O.S.M.O. KILL STREET KOSAPET,
VELLORE-632002. TAMILNADU
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
4. SMT. K. CHANDIYA LAKSHMI W/O C. KAMALRAJ,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. C/O. C. KAMALRAJ S. RLY. CHENNAI,
NO.37, SOUTH JAGNATHA NAGAR,
VILLIVAKKAM, CHENNAI -40.
5. SMT. M. GEETA W/O N. MANI,
AGE. 46 YEARS, OCC. HOUSEHOLD WORK,
R/O. H. MANI TECHNICAL ASSISTANT, SHANKAR
CEMENTS, THALAVAI, POST ECHANKADU
VIRUDHACHALAM (VIA) TAMIL NADU, PIN CODE-606001.
6. SMT. R. MALATHI W/O RAVI,
AGE. 49 YEARS, OCC. HOUSEHOLD WORK,
R/O. MR. RAVI, JUNIOR ASSISTANT,
COMMERCIAL TAX NO.6, EAST MAIN ROAD,
GANDHI NAGAR, VELLORE-632006,
TAMILNADU.
7. SMT. KAVITA KISHOR SHINDE,
AGE. 64 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
8. MISS. ANAGHA D/O. KISHOR SHINDE,
AGE. 29 YEARS, OCC. SERVICE,
R/O. PRATIKSHA BUNGALOW, MORWADI,
NEAR WATER TANK, AMBAD,
NASHIK, MAHARASHTRA-422010.
... RESPONDENTS
( R1(A) DECEASED;
R1A(i) SERVED; R1A(ii) & R1A(iii) ARE MINORS & R/BY R1A(i);
FOR R1(B)-SRI. SHRIVATSA S. HEGDE, ADVOCATE;
R1(C) SERVED; FOR R1(D)(i), R1(D)(ii) & R7 & R8-SRI. SANGRAM
S. KULKARNI, ADVOCATE; FOR R2 & R6 SRI. RAGHAVENDRA RAO &
SMT. VIDYA IYER, ADVOCATES; R3 SERVED; R4 & R5 ARE SERVED)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGEMENT
& DECREE DTD. 21.3.2005 PASSED IN R.A.NO.75/1999 ON THE FILE
OF THE III ADDL.CIVIL JUDGE (SR.DN.), BELGAUM, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD.
17.11.1998 PASSED IN OS NO.644/1993 ON THE FILE OF THE IV
ADDL.CIVIL JUDGE (JR.DN.), BELGAUM.
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RSA No. 1397 of 2005
C/W RSA No. 1399 of 2005
THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.1397/2005 is filed praying to set aside the judgment and decree dated 21.03.2005 passed by the learned III Additional Civil Judge (Senior Division), Belgaum, in RA No.74/1999 confirming the judgment and decree dated 17.11.1998 passed by the learned IV Additional Civil Judge (Junior Division), Belgaum, in O.S. No.495/1990 and to decree the suit in O.S. No.495/1990.
2. RSA No.1399/2005 is filed praying to set aside the judgment and decree dated 21.03.2005 passed by the learned III Additional Civil Judge (Senior Division), Belgaum, in RA No.75/1999 confirming the judgment and decree dated 17.11.1998 passed by the learned IV Additional Civil Judge (Junior Division), Belgaum, in O.S. No.644/1993 and to dismiss O.S. No.644/1993.
3. The appellants in RSA No.1397/2005 are the legal representatives of plaintiff Nos.1 and 2 in O.S. No.495/1990 and respondent Nos.1 to 4 are defendant Nos.1 to 4,
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 respondent Nos.5 to 7 are the legal heirs of defendant No.5 and respondent No.8 is defendant No.6 and respondent Nos. 9 to 13 are the other legal heirs of plaintiff No.2.
4. The appellants in RSA No.1399/2005 are the legal heirs of defendant Nos.1 and 2 and respondent Nos.1 to 6 are the legal representatives of the plaintiff in O.S. No.644/1993.
5. Defendant No.6 in O.S. No.495/1990 has filed suit in O.S. No.644/1993 against the plaintiff Nos.1 and 2 in O.S. No.495/1990. Defendant No.5 in O.S. No.495/1990 is son of the plaintiff in O.S. No.644/1993. Therefore, the parties will be referred to as per their ranking in O.S. No.495/1990.
6. The suit in O.S. No.495/1990 is filed seeking redemption of mortgage dated 15.02.1960. The said mortgage deed dated 15.02.1960 is executed by the plaintiffs in favour of one Raghunathrao Shinde. The said Raghunathrao Shinde has advanced loan of Rs.2,000/- to Plaintiff Nos.1 and 2 for which the said mortgage deed has
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 been executed. Defendant Nos.1 to 4 are the wife and children of said Raghunathrao Shinde and defendant No.5 is Uncle's son of Raghunathrao Shinde. Defendant No.6 is uncle's wife of Raghunathrao Shinde. The name of uncle of Raghunathrao Shinde is Gundu Ravalu Shinde. The property mortgaged under the mortgage deed dated 15.02.1960 is the suit property i.e., a house and open space bearing CTS No.4464 of Chavat Galli, Belgaum, having the following boundaries:
To East: House and open space of Sri. Late Ranganathrao Mudaliyar, CTS Nos.4465 and 4771/A-28 To West: Bole and beyond that with house property and open space of late Bedake CTS 4419 To North: Road To South: Road
7. The said mortgage amount of Rs.2,000/- is deposited in the Court in the said suit. The said suit is filed on 31.05.1990. The defendants are in possession of the mortgaged property. The plaintiffs have sought redemption of the said mortgage. Defendant Nos.5 and 6 were made as
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 parties to the suit, as they were residing in the mortgaged property.
8. Defendant Nos.1 to 4 in their written statement have contended that mortgage was for 5 years from 15.02.1960 to 14.02.1965 in the name of late Raghunathrao Shinde and the plaintiffs/mortgagers failed to get redeemed the mortgage in spite of intimation given to them personally by late Raghunathrao Shinde in the year 1966 many a times. Defendant Nos.1 to 4 contended that in the year 1967, the joint family of mortgagees did not continue jointly and in the partition dated 08.07.1967, to the knowledge of the plaintiff, the mortgaged property was allotted to the share of father of defendant No.5 and since then, they are in possession of the said property as owners in adverse possession from 1966. Defendant Nos.1 to 4 gave reply to legal notice dated 29.03.1990 stating that the plaintiffs cannot seek possession of the suit property. They contended that the suit is barred by limitation and the plaintiffs have lost the right to claim the possession of the suit property. Defendant Nos.1 to 4 who are in possession
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 of the suit property became owners of it by adverse possession as per the terms and conditions of the mortgage deed and prayed for dismissal of the suit.
9. Defendant Nos.5 and 6 in their written statement contended that the plaintiffs are aware of agreement of sale with regard to the suit property with the father of defendant No.5 and husband of defendant No.6 and in order to avoid the execution of the sale deed in favour of defendant Nos.5 and 6 and to defeat their title, the suit for redemption has been filed. Defendant Nos.5 and 6 have admitted that the suit property was in possession of the defendants as tenants prior to mortgage deed dated 15.02.1960. They also admitted the fact that the mortgage was effected in favour of late Raghunathrao Shinde. They contended that the plaintiffs had knowledge of the partition effected in the joint family of defendants in the year 1967 and allotment of suit property to the share of defendant Nos.5 and 6 and they began to reside in the suit property. They contend that the plaintiffs who were in frequent need of money took Rs.1,500/- on 19.04.1966 from defendant Nos.5 and 6
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 when their family were joint. They contend that the plaintiffs were not in a position to make payment of the amount of Rs.2,000/-. They took Rs.1,500/- on 19.04.1966 and entered into agreement of sale in respect of said mortgaged property with Gundu Ravalu Shinde-father of defendant No.5 and husband of defendant No.6 on 12.04.1973 and under the said sale agreement, conferred possession of mortgaged property to defendant Nos.5 and 6 as absolute owners in possession. The plaintiffs agreed to sell the suit property for a sum of Rs.15,000/- and in advance, they received a sum of Rs.3,000/- on the date of agreement of sale and in all the plaintiffs have received Rs.6,500/- i.e mortgaged amount of Rs.2,000/-, Rs.1,500/- on 19.04.1966 and earnest amount of Rs.3,000/- on 12.04.1973 and these facts are specifically mentioned in the agreement of sale. They contend that the remaining amount was to be paid at the time of final sale deed. They contend, that since the date of agreement of sale, the defendants are enjoying the suit property as absolute owners in possession and not in the capacity of mortgagee
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 in possession. They contend that Gundu Ravalu Shinde requested the plaintiffs to execute the sale deed in their favour when they used to visit his house and plaintiffs went on postponing on one or the other ground. With these, they prayed for dismissal of the suit.
10. Defendant No.6 in O.S. No.495/1990 reiterating the contentions taken up in the written statement has filed the suit in O.S. No.644/1993 seeking relief of specific performance based on the agreement of sale dated 12.04.1973. The plaintiffs in O.S. No.495/1990 were defendants Nos.1 and 2 in O.S. No.644/1993. In their written statement filed in the suit, they denied execution of agreement of sale and other contentions of the plaintiffs of that suit.
11. The suit filed by the plaintiff in O.S. No.495/1990 after trial came to be dismissed on the ground that the mortgage period was for 5 years and the plaintiffs failed to file a suit for redemption in that period of 5 years and therefore the plaintiffs are not entitled for relief of
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 redemption of the mortgage and that defendant Nos.1 to 4 have become owners by adverse possession.
12. The suit in O.S. No.644/1993 filed for the relief of specific performance came to be decreed directing defendant Nos.1 and 2 to execute the sale deed in terms of the agreement of sale dated 12.04.1973 in favour of the plaintiff-Shantabai. The plaintiffs aggrieved by the judgment and decree in both the suits, filed appeals in R.A. No.74/1999 and RA.75/1999 respectively and both the appeals came to be dismissed confirming the judgments and decrees passed by the trial Court.
13. Aggrieved by the judgments and decrees passed by the trial Court and the first appellate Court, the present two appeals are filed. Both the appeals came to be admitted to consider the following substantial question of law:
"Whether in the facts and circumstances of the case, the judgment of the lower appellate Court is perfunctory and against the spirit of Order 41 Rule 31 of CPC and hence it is unsustainable?
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005
14. After hearing the arguments on both sides, the following additional substantial question of law have been framed:
In RSA No.1397/2005
Whether the trial Court and the first appellate Court are justified in holding that defendant Nos.1 to 4 have become owners of the suit schedule property by adverse possession even though the suit is held to be filed within the limitation and in dismissing the suit for redemption?In RSA No.1399/2005
Whether the trial Court and the first appellate Court are justified in answering issue No.5 in the negative, even though, the suit is filed after three years of period of limitation from the date of service of suit summons on defendants in O.S. No.495/1990?
15. Heard the arguments of the learned counsel for the parties on the above substantial questions of law and additional substantial question of law.
16. The learned counsel for the appellants would contend that the limitation for filing a suit for redemption is 30 years as per Article 61 of the Limitation Act 1963. He
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 contends that the date of mortgage is 15.02.1960 and the period of mortgage is 5 years and the suit filed on 31.05.1990 and therefore, the limitation to file the suit for redemption commences after 5 years. Therefore, the suit filed on 31.05.1990 is within the period of limitation from 15.02.1965. He contends that once a mortgage is always a mortgage. The trial Court and the first appellate Court, without considering that the defendants are in possession of the mortgaged property under the mortgage deed-Ex.P-12 have erred in holding that defendants are in adverse possession of the mortgaged property. He further contended that even though the mortgaged property is allotted to the share of Gundu Ravalu Shinde in the partition deed dated 08.07.1967-Ex.P.4 that does not deprive the right of the plaintiff in seeking redemption of the mortgage. He contended that, for the sake of arguments, even if it is held that Ex.P-2-agreement to sell dated 12.04.1973 is proved but the said suit for specific performance in O.S. No.644/1993 is filed on 16.06.1993, after three years of receiving the suit summons by defendant Nos.5 and 6 in
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 O.S. No.495/1990 and therefore, it is barred by limitation under Article 54 of the Limitation Act. The cause of action stated in the O.S. No.644/1993 is when the plaintiff in that suit came to know of filing the suit in O.S. No.495/1990 stating that they came to know regarding filing of the suit on 11.07.1990 but the suit summons have been served on them on 10.06.1990. If the limitation is calculated from the date of service of summons on defendant Nos.5 and 6 i.e. 10.06.1990, the suit O.S. No.644/1990 is filed on 16.06.1993 is beyond the period of limitation. There is no notice issued prior to filing of the suit seeking relief of specific performance to the defendants. Without considering these aspects, the trial Court and the first appellate Court have erroneously decreed the suit for specific performance.
17. The learned counsel for the plaintiff in the suit for specific performance and defendants in the suit for redemption of mortgage, has contended that by evidence of the scribe and witnesses to sale agreement-Ex.P-2-the execution of agreement to sell by the mortgager in favour of Gundu Ravalu Shinde has been proved. He contended that
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 no time is fixed for performance of said sale agreement and therefore, the suit is filed within three years when the owners denied the sale agreement. The mortgage property has been allotted to the share of Gundu Ravalu Shinde in the partition deed dated 08.07.1967 and by virtue of sale agreement Ex.P-2, wife of Gundu Ravalu Shinde is entitled for relief of specific performance. They contended that the suit for redemption of mortgage is not maintainable in view of the sale agreement. Considering all these aspects, the trial Court and the first appellate Court have rightly dismissed the suit for redemption of mortgage and decreed the suit for specific performance.
18. The suit for redemption of the mortgage-deed Ex.P-12 dated 15.06.1960 has been filed on 31.05.1990. The period of the said mortgage is 5 years and mortgage was due on 15.02.1965. The mortgagee was in possession of the mortgaged property. The mortgagee did not file any suit for foreclosure from 15.02.1965 till filing of the suit for redemption by the mortgager.
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005
19. As per Article 61 of the Limitation Act, the period of limitation is 30 years from the date when the right to redeem or to recover possession accrues. Right to redeem and to recover possession accrues on 15.02.1965 i.e. after 5 years of the mortgage period. Considering the said aspect, the trial Court while answering issue No.2 has rightly held that the suit is not barred by limitation. Even though the trial Court having held that the suit is not barred by limitation and is filed within the period of limitation, has held that the defendants have become owners by adverse possession. The defendants are in possession of the suit property as mortgagees. Once a mortgage is always a mortgage. Mortgagee in possession will not acquire title to the mortgaged property. Even the possession of the defendants in the suit property is in the capacity of mortgagee and not adverse to the interest of owners i.e. mortgagors. Therefore, the trial Court and the first appellate Court have erred in holding that the defendants have become owners of the suit property by adverse
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 possession. Hence, Additional substantial question of law is answered accordingly.
20. Agreement of sale Ex.P-2 is dated 05.04.1973. Considering the evidence of the scribe and the witnesses to sale agreement, the trial Court and the first appellate Court have held that the plaintiffs have proved the agreement to sell-Ex.P-2. The said agreement to sell is dated 12.04.1973 and the suit for specific performance is filed on 16.06.1993. The said suit is filed after 20 years from the date of agreement to sell. No date is fixed for performance of that contract. The agreement holders i.e. Gundu Ravalu Shinde or his wife and children did not get issued any notice to the owner of the property asking him to execute the sale deed. Even prior to filing of the suit in O.S. No.644/1993, the plaintiffs have not got issued any notice to the defendants asking them to execute the sale deed. The cause of action mentioned in O.S. No.644/1993 for specific performance is as under:
"cause of action for the suit arose on 11.07.1990 when the plaintiff was served with suit summons in O.S.
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 495/1990 which is pending on the file of the learned IV Additional Munsiff Court, Belgavi filed by the defendants."
21. The plaintiff-Shantabai wife of Gundu Ravalu Shinde is defendant No.6 and Chandrakant son of Gundu Ravalu Shinde is defendant No.5 in O.S. No.495/1990.
22. A perusal of the records in O.S.No.495/1990. Defendant No.5-Chandrakant Gundu Shinde has received suit summons for himself and his mother i.e. defendant No.6 Shantabai wife of Gundu Shinde on 10.06.1990. On perusal of the copy of the suit summons issued to defendant Nos.5 and 6 in O.S. No.495/1990, the date of appearance for them in the suit is 11.07.1990. The suit summons is served on them along with the copy of the plaint and there is an endorsement made in that regard by defendant No.5 on the back of the suit summons. On 11.07.1990, defendant Nos.5 and 6 have appeared through their counsel in the suit O.S. No.495/1990. Therefore, the plaintiff in O.S. No.644/1993 namely Shantabai and her son Chandrakant Gundu Shinde have come to know about filing
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 of the suit by the mortgagors on 10.06.1990 and it should be the date of cause of action and not the date of their entering appearance i.e. 11.07.1990 as pleaded by them in para 5 of the plaint.
23. Article 54 of the Limitation Act reads as under:
Description of suit Period of Time form which limitation period begins to run
54. For specific Three years The date fixed for performance of a the performance, contract or, if no such date is fixed, when the plaintiff has notice that performance is refused
24. As the date is not fixed for performance under sale agreement Ex.P-2 dated 12.04.1973, the period of limitation begins to run when the plaintiff has noticed performance is refused.
25. According to the plaintiff, suit summons has been served on 11.07.1990. On perusal of the suit summons, the suit summons has been served in O.S. No.495/1990 on defendant Nos.5 and 6 on 10.06.1990 and not on
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 11.07.1990. Therefore, the period of limitation has to be reckoned from 10.06.1990. The suit O.S.No.644/1993 is filed on 16.06.1993. i.e. more than three years from 10.06.1990. Therefore, the said suit seeking relief of specific performance of contract filed in O.S. No.644/1993 is barred by limitation. Without considering this aspect, the trial Court and the first appellate Court erred in holding that the suit for specific performance is filed within the period of limitation. Hence, the substantial question of law and additional substantial question of law are answered accordingly.
26. In view of the above, the suit in O.S. No.644/1993 filed for the relief of specific performance of agreement of sale dated 12.04.1973 requires to be dismissed and the suit in O.S. No.495/1990 filed for the relief of redemption of mortgage requires to be decreed.
27. In the result, the following:
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NC: 2023:KHC-D:14968 RSA No. 1397 of 2005 C/W RSA No. 1399 of 2005 ORDER RSA No.1397/2005 and RSA No.1399/2005 are allowed. The judgment and decrees passed in O.S. Nos.495/1990, 644/1993, RA No.74/1999 and 75/1999 are set aside. The suit in O.S. No.495/1990 is decreed. The defendants and their legal representatives are directed to handover the vacant possession of the suit schedule property to the plaintiffs/the legal representatives of the plaintiffs within a period of three months. The defendants/legal representatives of the defendants are entitled to receive the mortgage amount of Rs.2,000/- deposited by the plaintiffs in the Court.
The suit in O.S. No.644/1993 is dismissed. The plaintiffs are entitled for refund of the earnest money of Rs.4,500(Rs.6,500 - Rs.2,000/-).
Draw the decrees in O.S. No.495/1990 and O.S. No.644/1993 accordingly.
Sd/-
JUDGE KMV CT:BCK