Karnataka High Court
Smt Prema Kumari vs Sri Doddapillanayaka Since Dead By Lrs ... on 24 January, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. NO.837 OF 2021 (RES)
C/W
R.S.A. NO.934 OF 2021 (DEC/INJ)
IN R.S.A. NO.837/2021:
BETWEEN:
1. SMT. PREMA KUMARI,
D/O. B. NARAYANA SINGH,
AGED ABOUT 68 YEARS,
RESIDING AT DOOR NO.142,
NETKALLAPPA CIRCLE,
BENGLAURU - 560 021.
2. SMT. MANOHARI BAI,
D/O. B. NARAYANA SINGH,
AGED ABOUT 64 YEARS,
RESIDING AT DOOR NO.11,
POLICE QUARTERS,
POLICE STATION MAIN ROAD,
KUMARASWAMY LAYOUT,
BENGLAURU - 560 020.
3. SMT. GAYATHRI BAI,
D/O. B. NARAYANA SINGH,
W/O. GANESH SINGH,
AGED ABOUT 63 YEARS,
RESIDING AT DOOR NO.1507,
KUPPASETTYBAVI,
MALUR TOWN,
MALUR - 563 130.
2
4. SMT. SUDHA SINGH,
D/O. B. NARAYANASINGH,
AGED ABOUT 60 YEARS,
RESIDING AT NO.53, 80TH CROSS,
KUMARASWAMY LAYOUT,
BENGALURU - 560 078.
SRI. B.N. MAHADEV SINGH,
SINCE DEAD BY LR'S,
5. SMT. VASANTHA BAI,
W/O. LATE B.N. MAHADEV SINGH,
AGED ABOUT 49 YEARS,
6. SMT. CHANDRA BAI,
D/O. LATE B.N. MAHADEV SINGH,
AGED ABOUT 25 YEARS,
7. SRI. CHANDRASHEKAR SINGH,
S/O. LATE B.N. MAHADEV SINGH,
AGED ABOUT 36 YEARS,
APPELLANT NOS.5 TO 7 ARE
RESIDING AT BAVANAHALLI VILLAGE,
KASABA HOBLI,
MALUR TALUK - 563 130.
8. SMT. MALA,
W/O. LATE MOHAN SINGH,
AGED ABOUT 40 YEARS,
9. SMT. RASHMI,
D/O. LATE MOHAN SINGH
AGED ABOUT 36 YEARS,
10 . SRI. RAJATH,
S/O. LATE MOHAN SINGH,
AGED ABOUT 34 YEARS,
APPELLANT NOS.8 TO 10 ARE
3
RESIDING AT NO.138,
C/O. RAMSINGH,
RESERVOIRS STREET,
BASAVANAGUDI,
BENGALURU - 560 004.
SRI. B.N. PRADEEP SINGH,
SINCE DEAD BY LR's,
11. SMT. USHA BAI,
W/O. LATE B.N. PRADEEP SINGH,
AGED ABOUT 50 YEARS,
12. SRI. DARSHAN SINGH,
S/O. LATE B.N. PRADEEP SINGH,
AGED ABOUT 26 YEARS,
13. SMT. JEEVITHA BAI,
D/O. LATE B.N. PRADEEP SINGH,
AGED ABOUT 23 YEARS,
APPELLANT NOS.11 TO 13 ARE
RESIDING AT NO.33, 1ST CROSS,
1ST MAIN, KALIDASA LAYOUT,
SRINAGARA,
BENGALURU - 560 050.
SRI. DASHARATHRAM SINGH,
SINCE DEAD BY LR'S,
14. SMT. PADMA BAI,
W/O. LATE DASHRATH RAM SINGH,
AGED ABOUT MAJOR,
15. SRI. MANJUNATH SINGH,
S/O. LATE DASHRATH RAM SINGH,
AGED ABOUT MAJOR,
16. SMT. MEGHA SINGH,
D/O. LATE DASHRATH RAM SINGH,
4
AGED ABOUT MAJOR,
APPELLANT NOS.14 TO 16
ARE RESIDING AT
OPP. SRIRAMPURAM MATERNITY HOSPITAL,
SRIRAMPURAM,
BENGALURU - 560 020.
... APPELLANTS
(BY SRI. V.F. KUMBAR, ADV.)
AND:
SRI. DODDAPILLANAYAKA,
SINCE DEAD BY LR's.
1. SMT. NARAYANAMMA,
W/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 74 YEARS,
2. SRI. MUNINAYAKA,
S/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 55 YEARS,
3. SRI. KEMPANAYAKA,
S/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 43 YEARS,
4. SMT. RADHAMMA,
D/O. LATE DODDAPILLANAYAKA,
AGED ABOUT MAJOR,
5. SMT. SHANTHAMMA,
D/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 35 YEARS,
6. SRI. CHANDRA NAYAKA,
S/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 27 YEARS,
5
APPELLANT NOS.1 TO 6
ARE RESIDENTS OF
BAVANAHALLI VILLAGE,
KASABA HOBLI,
MALUR TALUK - 563 130.
7. SRI. B.M. MUNIRAJA,
S/O. MUNISHAMINAYAKA,
AGED ABOUT 49 YEARS,
8. SRI. B.M. NARAYANASWAMY,
S/O. MUNISHAMINAYAKA,
AGED ABOUT 41 YEARS,
RESPONDENTS NO.7 TO 8
ARE RESIDENT OF
BAVANAHALLI VILLAGE,
MALUR TALUK - 563 130.
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CPC., AGAINST THE JUDGMENT AND DECREE DATED
16.04.2021 PASSED IN R.A. NO.110/2017 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MALUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
22.09.2017 PASSED IN O.S. NO.448/2008 ON THE FILE OF
THE I ADDITIONAL CIVIL JUDGE AND JMFC., MALUR.
IN R.S.A. NO.934/2021:
BETWEEN:
SMT. SUBHADRABAI,
SINCE DEAD BY LR'S,
1. SMT. PREMA BAI,
D/O. SUBHADRA BAI,
AGED ABOUT 50 YEARS,
W/O. RAMSINGH,
AGED ABOUT MAJOR,
6
RESIDING AT DOOR NO.142,
NETKALLAPPA CIRCLE,
BENGALURU - 560 021.
2. MUNNU BAI,
D/O. SUBHADRA BAI,
AGED ABOUT 48 YEARS,
RESIDING AT DOOR NO.11,
POLICE QUARTERS,
POLICE STATION MAIN ROAD,
KUMARASWAMY LAYOUT,
BENGALURU - 560 020.
3. SMT. GAYATHRI BAI,
D/O. SUBHADRA BAI,
W/O. GANESH SINGH,
AGED ABOUT 46 YEARS,
RESIDING AT DOOR NO.1507,
KUPPASETTYBAVI
MALUR TOWN,
MALUR - 563 130.
4. SMT. SUDHASINGH,
S/O. NARAYANASINGH,
AGED ABOUT 45 YEARS,
RESIDING AT NO.53, 80TH CROSS,
KUMARASWAMY LAYOUT,
BENGALURU - 560 078.
SRI. B.N. MOHAN SINGH,
SINCE DEAD BY LR'S,
5. SMT. VASANTHA BAI,
W/O. LATE B.N. MAHADEV SINGH,
AGED ABOUT 51 YEARS,
6. SRI. CHANDRASHEKAR SINGH,
S/O. LATE B.N. MAHADEV SINGH,
AGED ABOUT 30 YEARS,
7
7. SMT. CHANDANA BAI,
D/O. LATE B.N. MAHADEV SINGH,
AGED ABOUT 27 YEARS,
APPELLANT NOS.5 TO 7
ARE RESIDING AT
BAVANAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT - 563 130.
8. SMT. MALA,
W/O. LATE MOHAN SINGH,
AGED ABOUT 50 YEARS,
9. SMT. RASHMI,
D/O. LATE MOHAN SINGH,
AGED ABOUT 35 YEARS,
10. SRI. RAJATH,
S/O. LATE MOHAN SINGH,
AGED ABOUT 32 YEARS,
APPELLANT NOS.8 TO 10
ARE RESIDING AT
C/O RAMSINGH,
RESERVAYORS STREET,
BASAVANAGUDI,
BENGLAURU - 560 004.
SRI. B.N. PRADEEP SINGH,
SINCE DEAD BY LR'S,
11. SMT. USHA BAI,
W/O. LATE B.N. PRADEEP SINGH,
AGED ABOUT 50 YEARS,
12. SRI. DARSHAN SINGH,
S/O. LATE B.N. PRADEEP SINGH,
AGED ABOUT 26 YEARS,
8
13. SMT. JEEVITHA BAI,
D/O. LATE B.N. PRADEEP SINGH,
AGED ABOUT 23 YEARS,
APPELLANT NOS.11 TO 13
ARE RESIDING AT
NO.33, 1ST CROSS,
1ST MAIN, KALIDASA LAYOUT,
SRINAGARA,
BENGALURU - 560 050.
SRI. DASHARATHRAM SINGH,
SINCE DEAD BY LR'S,
14. SRI. MANJUNATH SINGH,
S/O. LATE DASHRATH RAM SINGH,
AGED ABOUT 34 YEARS,
15. SMT. MEGHANA
D/O. LATE DASHRATH RAM SINGH,
AGED ABOUT MAJOR,
16. SMT. PADMAVATHI BAI,
W/O. LATE DASHRATH RAM SINGH,
AGED ABOUT MAJOR,
APPELLANT NOS.14 TO 16
ARE RESIDING AT
OPP. SRIRAMPURAM MATERNITY HOSPITAL,
SRIRAMPURAM, BENGALURU - 560 020.
... APPELLANTS
(BY SRI. V.F. KUMBAR, ADV.)
AND:
SRI. DODDAPILLANAYAKA,
SINCE DEAD BY LR'S.
9
1. SMT. NARAYANAMMA,
W/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 74 YEARS,
2. SRI. MUNINAYAPPA
S/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 55 YEARS,
3. SRI. KEMPANAYAKA,
S/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 43 YEARS,
4. SMT. MUNIRATHNAMMA,
D/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 49 YEARS,
5. SRI. CHANDRAPPA B.P.,
S/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 27 YEARS,
6. SMT. SHANTHAMMA,
D/O. LATE DODDAPILLANAYAKA,
AGED ABOUT 35 YEARS,
APPELLANT NOS.1 TO 6
ARE RESIDENTS OF
BAVANAHALLI VILLAGE,
KASABA HOBLI,
MALUR TALUK - 563 130.
7. SRI. B.M. MUNIRAJA,
S/O. MUNISHAMINAYAKA,
AGED ABOUT 49 YEARS,
8. SRI. B.M. NARAYANASWAMY,
S/O. MUNISHAMINAYAKA,
AGED ABOUT 41 YEARS,
RESPONDENTS NO.7 TO 8 ARE
ARE RESIDENT OF
10
BAVANAHALLI VILLAGE,
MALUR TALUK - 563 130.
... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CPC., AGAINST THE JUDGMENT AND DECREE DATED
16.04.2021 PASSED IN R.A. NO.186/2011 ON THE FILE OF
THE SENIOR CIVIL JUDGE, MALUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
22.08.2008 PASSED IN O.S. NO.65/1999 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE (JR.DN.), MALUR.
THESE APPEALS ARE COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. RSA.837/2021 is an appeal by the unsuccessful plaintiffs in O.S.No.448/2008 which was filed against Doddapillanayaka/defendants for redemption of mortgage created under a registered Mortgage Deed dated 03.09.1987.
2. It was stated that the suit property had initially been mortgaged in favour of Gangadarappa and the same was redeemed and thereafter, Subhadra Bai and the plaintiffs were in possession of the suit property. It was stated that Subhadra Bai had in fact filed a suit in O.S.No.52/1999 for redemption against the defendants and Gangadarappa and in the said suit, it was alleged that during the lifetime of Narayana Singh mortgaged the suit property on 03.09.1987 11 in favour of the 1st defendant and father of defendants 2 and
3. It was stated that when the first mortgage in favour of Gangadarappa was in force, the second mortgage, which was created on 03.09.1987 and the subsequent Sale Deed, which had been executed by the mortgagor Narayana Singh, were invalid, since the plaintiffs were the owners of the property.
3. The suit was contested by the defendants on the ground that the suit property was the self acquired property of Narayana Singh and he had in turn mortgaged the suit property in favour of the defendants and they were in possession of the mortgaged property. It was stated that thereafter Narayana Singh himself had executed a Sale Deed in their favour and therefore, the Mortgage Deed stood merged with the Sale Deed and the defendants had become the owners and by virtue of they having acquired ownership, the question of redemption by the plaintiffs did not arise.
4. RSA.No.934/2021 is by the defendants in O.S.No.65/1999. O.S.No.65/1999 was filed by Doddapillanayaka/defendants in O.S.No.448/2008 seeking for 12 declaration and consequential decree of permanent injunction.
5. It was the case of the plaintiffs in O.S.No.65/1999 that the suit property had been mortgaged in their favour by Narayana Singh under a registered Mortgage Deed dated 03.09.1987 and he had thereafter sold the very same property under a Sale Deed dated 27.09.1993 and they had, therefore, become the absolute owners of the suit property. It was stated that the defendants were denying the title of the plaintiffs and the 2nd defendant, though signed the Sale Deed dated 27.09.1993, had filed a suit seeking for a exclusive share and therefore, the suit was required to be filed seeking for a declaration.
6. The Trial Court, in both the suits, after considering the evidence, came to the conclusion that the Mortgage Deed dated 03.09.1987 was created and subsequently, the mortgagor had himself sold the property to the defendants vide Sale Deed dated 27.09.1993 and therefore, the question of redemption would not arise. The Trial Court accordingly 13 dismissed the suit O.S.No.448/2008 and partly decreed the suit O.S.No.65/1999.
7. Being aggrieved, the plaintiffs in O.S.No.448/2008 and defendants in O.S.No.65/1999 preferred an appeal.
8. In appeal, the Appellate Court, on re-appreciation of entire evidence, concurred with the finding of the Trial Court and dismissed the appeal, thereby confirming the dismissal of the suit. It is against this concurrent finding, the present appeals have been filed.
9. It is not in dispute that the suit property was mortgaged by Narayana Singh, the predecessor-in-interest of the plaintiffs. It is also not in dispute that as has been ascertained by both the Courts that the very same Narayana Singh had sold the suit property in favour of the defendants in O.S.No.448/2008 under a registered Sale Deed dated 27.09.1993. Since the mortgagor, during the subsistence of the Mortgage Deed, conveyed the mortgaged property to the mortgagee under the Sale Deed dated 27.09.1993, the question of the plaintiffs in O.S.No.448/2008 seeking for redemption would never arise. I am, therefore, of the view 14 that the grant of injunction in favour of the mortgagee i.e., the plaintiffs in O.S.No.65/1999 does not suffer from any infirmity. Both the Courts were, therefore, absolutely justified in dismissing the suit O.S.No.448/2008 and partly decreeing the suit O.S.No.65/1999. I find no substantial question of law arising for consideration in these second appeals. The second appeals are accordingly dismissed.
Sd/-
JUDGE PKS