Karnataka High Court
Sri. Syed Amanulla vs Sri. Khasim Khan on 15 November, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:47768
RFA No. 1464 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 1464 OF 2016 (RES)
BETWEEN:
SRI. SYED AMANULLA
S/O SYED ABDUL SATTAR
AGED ABOUT 70 YEARS
R/AT NO.5, ARAB LANE STREET CROSS
RICHMON TOWN
BANGALORE-560 025
REPRESENTED BY HIS
ATTORNEY HOLDER
SRI SYED FAYAZ AHMED
S/O LATE ABDUL SATTAR
AGEDA BOUT 50 YEARS
RESIDING AT NO.8, ARAB LINE
RICHMOND TOWN
BANGALORE-560 025.
DEAD BY LRS
Digitally signed 1(A) SMT. ABIDA BEGUM
by LEELAVATHI W/O LATE SYED AMANULLA
SR AGED ABOUT 68 YEARS
Location: High R/AT NO. 5, ARAB LANE A STREET
Court of RICHMOND TOWN
Karnataka BANGALORE - 560 025.
1(B) SRI SYED ASADULLAH
S/O LATE SYED ASADULLAH
AGED ABOUT 44 YEARS
R/AT NO.8, ARAB LANE A STREET
RICHMOND TOWN
BANGALORE - 560 025.
1(C) SMT. NAFEESA BEGUM
D/O LATE SYED AMANULLA
W/O MOHAMMED ARIF B.M
AGED ABOUT 42 YEARS
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NC: 2024:KHC:47768
RFA No. 1464 of 2016
R/AT NO.8, ARAB LANE A STREET
RICHMOND TOWN
BANGALORE 0 560 025.
1(D) SRI SYED ASIFULLAH
S/O LATE SYED AMANULLA
AGED ABOUT 40 YEARS
R/AT NO.8, ARAB LANE A STREET
RICHMOND TOWN
BANGALORE 0 560 025.
...APPELLANTS
(BY SRI. BALAGANGADHAR G S .,ADVOCATE)
AND:
1. SRI. KHASIM KHAN
S/O LATE YAQUB KHAN
AGED ABOUT 57 YEARS
RESIDING AT NO.4
ARAB LANE STREET CROSS
RICHMOND TOWN
BANGALORE-560 025
SRI T N PRASANNA KUMAR
SINCE DEAD REPRESENTED BY
HIS LEGAL REPRESENTATIVES
2. SMT. PARIJATHAMMA
W/O LATE T N PRASANNA KUMAR
AGED ABOUT 72 YEARS
3. SRI SARAVANA ESWAR P KUMAR
S/O LATE T N PRASANNA KUMAR
AGED ABOUT 45 YEARS
2 AND 3 RESIDENTS OF
NO.G6 KASTLE GRACE APARTMENT
1/1 ESWARA LAYOUT, 1ST CROSS
INDIRANAGAR 2ND STAGE
BANGALORE-560 038.
4. SMT. CHITRA
D/O LATE T N PRASANNA KUMAR
AGED ABOUT 53 YEARS
RESIDING AT NO.16,
PUTTANNA ROAD
BASAVANAGUDI
BANGALORE-560 004.
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NC: 2024:KHC:47768
RFA No. 1464 of 2016
5 SMT. SARITA PRASANNA KUMAR
D/O LATE T N PRASANNA KUMAR
AGED ABOUT 51 YEARS
RESIDING AT 1ST FLOOR, 59-60
LAKSHMANA MUDALIAR STREET
BANGALORE-560 001.
6. SMT. PAVITHRA
D/O LATE T N PRASANNA KUMAR
AGED ABOUT 50 YEARS
RESIDING AT NO.2726
17TH B CROSS, V MAIN
BANASHANKARI 2ND STAGE
BANGALORE-560 070.
...RESPONDENTS
(BY SRI. RAJESH MAHALE, SENIOR ADVOCATE FOR SRI. MAHESH.M
,ADVOCATE FOR R-1
SRI. VIJAYA.N. ARADHYA, ADVOCATE FOR R-2 TO R-6)
THIS RFA FILED UNDER SEC.96 R/W ORDER XLI RULE 1 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 05.08.2016 PASSED IN
OS NO.6576/1989 ON THE FILE OF THE XLIV ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH 45), DECREEING THE SUIT FOR
MORTGAGE.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
This appeal by the 1st defendant in O.S.No.6576/1989 is directed against the impugned judgment and decree dated 05.08.2016 passed by the XLIV Addl.City Civil and Sessions -4- NC: 2024:KHC:47768 RFA No. 1464 of 2016 Judge, Bangalore, whereby the said suit filed by the 1st respondent
- plaintiff against the appellant - 1st defendant and respondents 2 to 6 - L.Rs. of 2nd defendant was decreed in favour of the plaintiff against the defendants by the trial court.
2. For the purpose of convenience, the parties are referred to by their respective ranks before the trial court. The suit was filed by the 1st respondent - plaintiff against the appellant - 1st defendant as well as Sri. T.N.Prasanna Kumar - 2nd defendant. The said 2nd defendant - T.N.Prasanna Kumar having expired during the course of the proceedings, his L.Rs. were brought on record and are arrayed as respondents 2 to 6 in the present appeal.
3. The brief facts giving rise to the present appeal are as follows:-
The 1st respondent - plaintiff initially instituted the suit against the appellant - 1st defendant and late 2nd defendant -
Sri.T.N.Prasanna Kumar seeking delivery of vacant possession of the suit schedule immovable property along with the title deeds and other documents to his custody from the 1st defendant for mesne profits and for other reliefs. The plaintiff contended that the suit schedule property originally belonged to the 2nd defendant --5-
NC: 2024:KHC:47768 RFA No. 1464 of 2016 Sri.T.N.Prasanna Kumar and his mother Smt.Lalithamma who mortgaged the property and handed over possession of the same to the 1st defendant vide registered mortgage deed dated 10.12.1962. As per the terms of the mortgage, the period was fixed at 15 years ending on 09.12.1977, pursuant to which, the aforesaid mortgagers were entitled to redeem the mortgage from the 1st defendant by paying the mortgage amount of Rs.2,500/- to the 1st defendant. It was contended that on 10.07.1987, Smt.Lalithamma expired leaving behind her son Sri.T.N.Prasanna Kumar to succeed to her estate including the suit schedule property.
3.1 The plaintiff contended that vide two registered sale deeds dated 09.06.1988 and 23.06.1988, the 2nd defendant Sri.Prasanna Kumar and his children sold the suit schedule property in favour of the plaintiff for a sale consideration of Rs.85,000/- and that pursuant to the said sale deeds, the plaintiff not only became the absolute owner of the suit schedule property but also became entitled to redeem the mortgage in favour of the 1st defendant by paying the mortgage amount of Rs.2,500/- and recover possession of the suit schedule property and the documents from the 1st defendant. It was contended that the plaintiff issued a legal notice dated 24.06.1988 to the 1st defendant -6- NC: 2024:KHC:47768 RFA No. 1464 of 2016 and called upon him to receive the mortgage amount and redeem the mortgage and hand over possession of the suit schedule property along with documents to the plaintiff and since the 1st defendant refused to comply with the demand made by the plaintiff, he instituted the aforesaid suit against the defendants.
3.2 In this context, it is relevant to extract the prayers sought for by the plaintiff in the original plaint, which read as under:-
"a) That the 1st defendant should deliver the possession of the schedule property to the plaintiff with vacant possession together with the mortgaged deed.
b) That the 1st defendant should deliver all documents in his custody relating to he mortgaged property.
c) That the 1st defendant should pay mense profits of the plaintiff at not less than Rs.850/- per mense fro the date of suit till the date of delivery of possession suit schedule property.
d) For costs
e) And such other reliefs and this Hon'ble Court
may deem fit to grant in the circumstances of the case in the interest of justice."
3.3 The 1st defendant filed his written statement disputing and denying the various allegations and claim made by the plaintiff.
-7-NC: 2024:KHC:47768 RFA No. 1464 of 2016 It was contended that the sale deed executed in favour of the plaintiff by the 2nd defendant and his children was a collusive, concocted and fraudulent document which was not binding upon the 1st defendant and that the plaintiff was not entitled to redeem the mortgage as sought for by him. It was also contended that on 10.07.1987, the 2nd defendant along with his heirs, executed a sale agreement in favour of the 1st defendant in respect of the suit schedule property, pursuant to which, the 1st defendant was in possession in part performance of the suit schedule property. It was contended that the 1st defendant had already instituted a suit in O.S.No.1013/1989 against the plaintiff, 2nd defendant and his children for specific performance and other reliefs and that the same was pending adjudication. It was further contended that the 1st defendant had executed a sale agreement dated 08.03.1995 and registered assignment deed dated 01.03.1987 in favour of one Syed Kaleemulla and put him in possession and enjoyment of the suit schedule property and that the suit was liable to be dismissed on this ground also. It was also contended that the suit was bad for non-joinder of property and that the plaintiff was not entitled to any of the reliefs sought for by him and that the suit was liable to be dismissed.
-8-NC: 2024:KHC:47768 RFA No. 1464 of 2016 3.4 The 2nd defendant filed his written statement admitting the various contentions and claims of the plaintiff and fully supported the claim of the plaintiff and stated that he had no objection for the suit to be decreed in favour of the plaintiff. The 2nd defendant also disputed and denied the various allegations and claim made by the 1st defendant including the suit in O.S.No.1013/1989 filed by the 1st defendant and contended that the said suit had been instituted putting forth false claims with malafide intention and ulterior purpose.
3.5 After the demise of 2nd defendant on 25.10.2005, during the pendency of the suit, his wife and children, respondents 2 to 6 herein filed an additional written statement reiterating the various contentions put forth by the 2nd defendant in his written statement.
As already averred by the 2nd defendant in his written statement, his L.Rs also specifically disputed and denied the allegations of 1st defendant that the 2nd defendant has executed a sale agreement in favour of the 1st defendant. It was also contended by the L.Rs of the 2nd defendant that they had no objection for the plaintiff to redeem the mortgage and the suit to be decreed as prayed for by him and that the false and frivolous claim of the 1st defendant -9- NC: 2024:KHC:47768 RFA No. 1464 of 2016 including the suit in O.S.No.1013/1989 filed by the 1st defendant was liable to be dismissed.
3.6 Both the plaintiff and 2nd defendant adduced oral and documentary evidence, while the contesting 1st defendant did not adduce any oral or documentary evidence. By judgment and decree dated 10.03.2011, the trial court decreed the suit in favour of the plaintiff against the defendants.
3.7 Aggrieved by the said judgment and decree, the 1st defendant preferred R.F.A.No.660/2011. By final judgment and decree dated 03.06.2015, this Court allowed the appeal and remitted the matter back to the trial court for reconsideration afresh by permitting the plaintiff to amend the plaint and also permitting the 1st defendant to adduce evidence and cross-examine the plaintiff. The said judgment and decree passed in R.F.A No.660/2011 dated 03.06.2015, is as under:-
" Heard the learned counsel for the appellant and the learned counsel for the respondents.
2. The appellant was the first defendant before the trial court. It was the case of the plaintiff that the second defendant and his mother, Lalithamma were the owners of the suit schedule property and they had mortgaged the suit schedule property with possession in favour of the first defendant on 10.12.1962 under a registered deed and the
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 possession of the suit schedule property was delivered to the first defendant. The first defendant was in possession as the mortgagee. The term was for a period of 15 years and the mortgage amount was Rs.2,500/- . The mortgage was redeemable on 9.12.1977. The second defendant and his children are said to have sold the suit schedule property to the plaintiff under sale deeds dated 9.6.1988 and 23.6.1988. The sale of the property in favour of the plaintiff was said to have been intimated to the first defendant by a notice dated 24.6.1988. The plaintiff therefore had purchased the suit schedule property for a sum of Rs.85,000/-. The sale was subject to redemption of mortgage by paying the mortgage amount of Rs.2,500/- to the first defendant and to recover possession from him. The plaintiff therefore claimed as the bona fide purchaser of the suit schedule property. Since the first defendant had set up a false claim of also being an agreement holder in respect of the suit schedule property, had filed a suit for specific performance in OS 1013/1989, which was also pending before the very court in which the present suit was filed. And it was in that background that the plaintiff claimed that he was entitled to redeem the mortgage and had deposited the entire amount of Rs.2,500/- and the suit was filed seeking the following reliefs, namely,
(a) that the first defendant should deliver possession of the suit schedule property to the plaintiff with vacant possession together with the mortgaged deed.
(b) that the first defendant should deliver all documents in his custody relating to the mortgaged property.
(c) that the first defendant should pay mesne profits to the plaintiff at not less than Rs.850/- per mensem from the date of
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 suit till the date of delivery of possession of the suit schedule property?
(d) for costs"
The defendant no.1 had entered appearance and filed written statement to claim that the suit was not maintainable. The period of mortgage had come to an end when the first and second defendants along with the legal heirs had executed an agreement of sale of the suit schedule property for a sale consideration of Rs.50,000/- on 10.7.1997 and therefore, the relationship of mortgagor and mortgagee had come to an end on such sale deed. And on the same day, the first defendant had paid the sum of Rs.27,500/- which was acknowledged by the second defendant in the presence of witnesses and the mortgage amount of Rs.2,500/- had been adjusted towards the consideration and the second defendant had agreed to receive the balance consideration of Rs.20,000/- and to execute the sale deed in respect of the suit property within one year and in part performance of the contract, had allowed the first defendant to continue in possession of the suit schedule property as a purchaser. The sale deed alleged to be executed by the second defendant along with his heirs in favour of the plaintiff were said to be collusive, concocted and fraudulent and did not bind the first defendant. The plaintiff had knowingly purchased the suit schedule property with ulterior motive to deprive the rights of the defendants and therefore, the transaction was null and void and there was no right in the plaintiff to demand the execution of the deed of redemption or to deliver vacant possession of the property.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 It was further asserted that the first defendant had initiated proceedings in OS 1013/1989 against the plaintiff, the second defendant and his children for specific performance of contract. That suit was much earlier to the present suit and therefore, the first defendant under the knowledge of the second defendant, having sold the very same property in favour of Syed Khaleemullah under an agreement dated 8.3.1995 for a consideration of Rs.75,000/- and on the same day, Khaleemullah having paid Rs.40,000/- as advance, the first defendant in part performance of the contract, had put the prospective buyer in physical possession of the property. It is on these pleadings that the trial court has framed the following issues:
"1. Whether the plaintiff proves that he has purchased the suit schedule property with right of redemption of mortgage as alleged in the plaint?
2. Whether the defendant no.1 proves that the mortgage created by the then owner Smt.Lalithamma is not subsisting?
3. Whether the first defendant proves that the sale in favour of the plaintiff is nominal, fraudulent, null and void and not binding on the defendant no.1?
4. Whether the plaintiff proves that he is entitled to redemption of the mortgage as prayed in the plaint and possession of the suit schedule property?
5. Whether the plaintiff is entitled to the mesne profits from the date of suit as prayed in the plaint?
6. Whether the suit is bad for non-joinder of necessary parties?
ADDITIONAL ISSUES:
"1. Whether the first defendant proves that the second defendant has agreed to receive the balance consideration of
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Rs.20,000/- and to execute the sale deed in favour of the first defendant?
2.Whethewr the first defendant proves that his possession over the plaint schedule property is lawful as against the plaintiff?
3. Whether the first defendant proves that the plaintiff is the subsequent purchaser with notice and without consideration ?"
The court below has decreed the suit .
Incidentally, the first defendant whose suit for specific performance was dismissed for default, had pointed out to the court that the two suits had been clubbed and were being tried together. Since the suit for specific performance was dismissed for default, he had taken steps to have the same restored, and in order that there be complete adjudication of the disputes between the parties in the two suits, he had requested that the further proceedings be kept in abeyance pending restoration of the suit so dismissed. This prayer was rejected by the trial curt and the evidence was treated as closed. In that, the plaintiff's witness was not cross-examined by the first defendant nor did he tender any evidence. The suit having been decreed, the present appeal is filed.
The learned counsel for the appellant would at the first instance point out that the suit ought to have been one for redemption of mortgage. Order XXXIV of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity), which prescribes a special procedure insofar as a suit for redemption of mortgage is concerned. This has not been complied with by the plaintiff in the first instance and the court has also adjudicated the matter notwithstanding that a special procedure is prescribed insofar as a suit for redemption of mortgage is concerned and has proceeded to
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 decree the same, which is totally in violation of the procedural law. And further, the reliefs prayed for by the plaintiff stops short of reconveyance of the property which is contemplated as the ultimate relief to be granted in a suit for redemption of mortgage. In the absence of any such prayer, there is no conveyance. Even if the suit has been decreed, it results in a nullity and hence the learned Counsel seeks that the judgment and decree be set aside on this and other grounds which are sought to be urged.
At the outset, it is noticed that it is indeed a suit for redemption of mortgage, in which event, the trial court was duty bound to indicate to the plaintiff that the suit was not brought in the proper form and also ought to have proceeded in terms of order XXXIV of the CPC. Therefore, there is a procedural lapse, which could even be said would go to the root of the matter. In that, there is no complete relief granted to the plaintiff, which was essential in order to confer title on the plaintiff, which stands eclipsed by virtue of the mortgage in favour of the first defendant. Unless there is redemption and reconveyance of the property in favour of the plaintiff by means of a registered document, it does not result in the plaintiff recovering title and possession of the property. Therefore, this lacuna would have to be set right and since the court below however has proceeded to adjudicate on the claim of the plaintiff and has arrived at a certain decision, it would not be in the interest of the parties or in the interest of justice to efface the proceedings. It would be appropriate if the plaintiff is permitted to amend the plaint incorporating the prayer that would necessarily have to be sought in a suit for redemption of mortgage.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Hence, the judgment and decree of the trial court is set aside and the matter is remanded to the trial court and the plaintiff shall be permitted to amend the plaint suitably and the defendant no.1 shall be permitted to file additional written statement and shall be permitted to cross-examine PW.1 and tender evidence if any and the court below shall follow the procedure in adjudicating the matter further in terms of Order XXXIV of the CPC and other provisions. This however shall be on payment of costs of Rs.25,000/- by defendant no.1 to the plaintiff before the trial court immediately on remand. The parties shall appear before the court below without any further notice on 29.6.2015 on which date, the defendant no.1 shall pay the costs. Since the suit was of the year 1989, it is appropriate that the proceedings be expedited and therefore, the court below is requested to address the matter on a day to day basis, depending on its board and dispose of the matter at the earliest, in any event, within a period of three months, if not earlier from the date of remand.
Incidentally, it is the further claim of the appellant that his suit for specific performance which has been revived and in which the trial is on and it is requested that the present suit be tried along with the same. On the say of the defendant himself, when the procedure prescribed in respect of a suit for redemption of mortgage is different from that of a suit for specific performance, the question of clubbing the two matters is not permissible. Secondly, they are independent transactions and shall be treated as such.
There is no warrant for the suits to even be tried side by side as claimed by the defendant".
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 3.8 Pursuant to the aforesaid order of remand, plaintiff filed an application I.A.1/2015 seeking permission to amend the prayer column of the plaint. The said application in I.A.1/2015 having been contested by the 1st defendant, the trial court passed an order dated 17.07.2015 allowing the amendment application filed by the plaintiff, who proceeded to amend the plaint by incorporating additional pleadings in the prayer column as under:-
a) Declaring that the mortgage deed dated 10-12-
1962 registered as document No. 2814 of Book-1, volume No. 1220 at pages 117-122, in the office of the sub- registrar, Shivajinagar, Bangalore as redeemed and to have the same re-conveyed to the plaintiff and consequently.
b) Direct the first defendant to execute receipt/endorsement/ discharge deed in favour of the plaintiff and register the same in the jurisdictional sub-registrar office in case if the defendant No.1 fails to execute the same this Hon'ble Court be pleased to execute the same this Hon'ble Court be pleased to execute the same on behalf of the defendant No.1.
c) Direct the defendant NO.1 or the person/s claiming under him to deliver vacant possession of the suit schedule property to the plaintiff.
d) Direct the first defendant to handover the custody of the original documents in respect of the suit schedule property to the plaintiff.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016
e) Direct the defendant No.1 to pay mense profits to the plaintiff a sum of Rs.850/- per month from the date of the filing of suit to till the date of delivery of vacant possession of the schedule property to the plaintiff.
f) Grant cost and other such reliefs as deem fit to in the circumstances of this case.
3.9 The 1st defendant filed additional written statement to the amended plaint disputing the denying the various allegations and claim made by the plaintiff and interalia contended that the suit was not framed in accordance with Order 24 and Form No.46 of Appendix - A of CPC and was not maintainable and was liable to be dismissed. It was also contended that the amended reliefs were barred by limitation under Articles 58 and 61 of the Limitation Act and accordingly, the 1st defendant sought for dismissal of the suit.
3.10 Subsequently, the trial court framed the following issues and additional issues:-
1. Whether the plaintiff proves that he has purchased the suit schedule property with right of redemption of mortgage as alleged in the plaint?
2. Whether defendant No.1 proves that the mortgage created by the then owner Smt.Lalithamma the plaintiff proves the Interference by the defendant?
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NC: 2024:KHC:47768 RFA No. 1464 of 2016
3. Whether the first defendant proves that he sale in favour of the plaintiff is nominal, fraudulent, null and void and not binding on the defendant No.1?
4. Whether the plaintiff proves that he is entitled to redemption of the mortgage as prayed in the plaint and possession of the suit schedule property?
5. Whether the plaintiff is entitled to mesne profits from the date of suit as prayed in the plaint?
6. Whether the suit is bad for non-joinder of necessary parties?
7. What order or decree?
ADDL. ISSUES ARE FRAMED ON 3.8.2015:
1. Whether the suit of the plaintiff is barred by limitation?
2. Whether the 1st defendant proves that the suit of the plaintiff is in accordance with Order 34 and Form-46 of Appendix-A of Civil Procedure and hence it is liable to be dismissed?
3. Whether the plaintiff is entitled for the relieves prayed in the amended plaint?"
3.11 During the course of trial, the plaintiff examined himself as PW-1 and documentary evidence at Exs.P1 to P7 were marked by the plaintiff. The 2nd defendant - Smt.Sarita P.Kumar was examined as DW-1 on behalf of all the legal representatives of deceased 2nd defendant. So also, one Syed Fayaz Ahmed, GPA
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Holder of 1st defendant was examined as DW-2 and two witnesses viz., Mazarulla Khan as DW-3 and G.K.Vijay Kumar as DW-5.
Though one Mohammed Farooq was also examined as DW-4, his evidence was discarded by the trial court vide order dated 24.03.2016. Further, documentary evidence at Exs.D1 to D40 were marked on behalf of the defendants.
3.12 After hearing the parties, the trial court proceeded to decree the suit in favour of the plaintiff against the 1st defendant who is before this Court by way of the present appeal.
4. Heard learned counsel for the appellant and learned Senior counsel for the 1st respondent and perused the material on record.
5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the appellants submitted that the trial court had committed an error in decreeing the suit in favour of the plaintiff against the defendants. It was submitted that the trial court failed to appreciate that the suit had not been properly framed and the prayers / reliefs sought for by the plaintiff were not inconformity with the provisions contained in Order 34 CPC r/w Form 46 of Appendix -A, the suit
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 was liable to be dismissed. It was further submitted that the trial court failed to appreciate that the sale deeds executed by the L.Rs.
of the 2nd defendant in favour of the plaintiff were fraudulent and collusive and the suit based on the said sale deeds was liable to be dismissed.
5.1 Learned counsel further contended that the trial court failed to appreciate that the amended prayers sought for by the plaintiff after remand by this Court in R.F.A.No.660/2011 was barred by limitation and the suit was liable to be dismissed on this ground also. It was therefore submitted that the impugned judgment and decree passed by the trial court deserves to be set aside and the suit of the plaintiff was liable to be dismissed. In support of his submissions, learned counsel for the appellant placed reliance upon the following judgments:-
1. Ramprasad Chimanlal Vs. Hazarimull Lalchand - AIR 1931 Calcutta 458.
2. Om Prakash and others Vs. Ram Kumar and others - AIR 1991 S.C 409.
3. Viswanathan and others Vs. R.Lakshmi Ammal (Deed.) And Others - TLMAD- 1993-0-635/MADLJ-1993-2-
560.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016
4. Jayathirth Ramacharya Gudi Vs. Bindumadhavacharya Srinivasacharya Gudi - ILR 1996 KAR 941.
5. Rukmani Ammal and another Vs. Jagdeesa Gounder - AIR 2006 S.C 276.
6. Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack de Sequeria (dead) through L.Rs. - AIR 2012 S.C 1727.
7. Union of India Vs. Ibrahim Uddin and another - (2012) 8 S.C.C. 148.
8. Parasappa Nagappa Walikar @ Pyada Vs. Chandrawa and others - ILR 1974 KAR 664.
6. Per contra, learned Senior counsel for the 1st respondent would support the impugned judgment and decree and submit that the appeal was liable to be dismissed. Reliance is placed upon the judgment of the Apex court in the case of Prithi Pal Singh & Another vs. Amrik Singh and others - (2013) 9 SCC 576.
7. I have given my anxious consideration to the rival submissions and perused the material on record.
8. The following points arise for consideration in the present appeal;
(i) Whether the trial court was justified in coming to the conclusion that the sale deeds at Ex.P1 dated 09.06.1988 and
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Ex.D5 dated 23.06.1988 executed by the L.Rs of 2nd defendant in favour of the plaintiff was collusive, concocted, sham, fraudulent and not binding upon the appellant - 1st defendant as contended by him?
(ii) Whether the trial court was justified in holding that the suit and reliefs / prayers as sought for by the plaintiff was maintainable and that the plaintiff was entitled to the reliefs sought for by him?
(iii) Whether the trial court was justified in holding that the suit was not barred by limitation?
Re-Point No.1:-
9. A perusal of the material on record will indicate that apart from disputing and denying the claim of the plaintiff, the appellant -
1st defendant specifically contended that the sale deeds at Ex.P1 and Ex.D5 executed by the L.Rs. of 2nd defendant were fraudulent, concocted and not binding upon the 1st defendant. In this regard, the trial court framed issue Nos.1 and 3 and considered the rival contentions and recorded a finding that the said sale deeds were registered documents executed by the L.Rs. of the 2nd defendant, as a result of which, the plaintiff acquired valid and absolute title
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 over the suit schedule property. The trial court also came to the conclusion that mere non-production of the original sale deeds were not fatal to the case of the plaintiff, since Exs.P1 and D5 were certified copies of the registered sale deeds which were public documents. The trial court also noted that the 1st defendant who was neither a party nor a witness nor had any knowledge of the aforesaid sale deeds at Exs.P1 and D5 did not have locus standi to assail the registered sale deeds.
9.1 The material on record also indicates that the 1st defendant did not adduce any legal or acceptable evidence to establish that the said sale deeds at Exs.P1 and D5 were sham and fraudulent documents. In fact, the 1st defendant did not examine himself and his GPA Holder who was examined as DW-2 subsequent to this Court passing the remand order on 03.06.2015, did not have personal knowledge about Exs.P1 and D5 which were executed on 09.06.1988 and 23.06.1988 respectively and as such, the evidence of DW-2 was not sufficient to prove the said plea put forth by the 1st defendant. So also, the evidence of DW-3 and DW-
5 who were neighbours of the 1st defendant and their evidence having been recorded after remand in the year 2016 was neither
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 relevant nor material for the purpose of substantiating the said plea put forth by the 1st defendant qua the sale deeds at Exs.P1 and D5 executed in favour of the plaintiff. The trial court also came to the conclusion that though the 1st defendant had contended that the 2nd defendant and his L.Rs. had executed a sale agreement dated 15.09.1987/10.07.1997 in favour of the 1st defendant, the said unregistered sale agreement had not been produced by the 1st defendant in order to cast any doubt or in any manner assail / challenge the registered sale deeds at Exs.P1 and D5 executed in favour of the plaintiff. It is also relevant to state that though the 1st defendant had instituted one more suit in O.S.No.1013/1989 against the plaintiff and L.Rs. of 2nd defendant which was pending adjudication, since the request of the appellant - 1st defendant herein to club both suits had been rejected by this Court in the aforesaid R.F.A.No.660/2011 while remanding the present suit in O.S.No.6576/1989, mere pendency of O.S.No.1013/1989 cannot be made the basis to come to the conclusion that the sale deeds at Exs.P1 and D5 were sham, fraudulent etc., as contended by the 1st defendant. Under these circumstances, I am of the considered opinion that the trial court was fully justified in answering issue
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Nos.1 and 3 in favour of the plaintiff and against the 1st defendant by holding as under:-
11. Issue No.1: As mentioned herein above, while discussing the pleadings of the parties hereto, it is the exclusive say of plaintiff as well as 2nd defendant in their respective pleadings that the plaintiff had purchased the plaint schedule mortgaged property by two separate registered sale deeds dated: 09-07-1988. In this behalf the document at Ex.P1 is adduced by the plaintiff whereas the document at Ex.D5 was adduced by DW1. So far as the fact of purchase of plaint schedule mortgaged property is concerned, there is no dispute by the 1st defendant in his pleadings as well as in the course of his evidence. The strong objections and opposition is that the plaintiff having well aware of the alleged sale agreement said to have been entered into between the 1st defendant and the 2nd defendant has fraudulently created the sale deed with an ulterior motive to cause wrongful loss to the 1st defendant.
That for the reasons assigned infra while answering issue No.3 the above said defense remains as it is and the same is not proved.
12. That in the course of arguments, the learned counsel appearing for the 1st defendant has seriously opposed the document at Ex.P1 and Ex.D5 by mentioning that the plaintiff has not produced the original sale deeds and in the absence of original sale deeds the document at Ex.P1 and Ex.D5 being the certified copies of the sale deeds dated 09-06-1988 and 23-06-1988 cannot be looked
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 into by this Court. I am of the view that this particular argument canvassed on behalf of 1st defendant holds no water for the simplest reason that the registered sale deeds dated: 09-06-1988 and 23-06-1988 both pertaining to plaint schedule mortgaged property being the public documents as per section 74 of Indian Evidence Act, the certified copy of same can be adduced as secondary evidence by virtue of section 65(e) of Indian Evidence Act. Hence by adducing the documents at Ex.P1 and D5, the fact of purchase of plaint schedule property by the plaintiff is proved and established.
13. Besides the above said arguments, the learned counsel for the 1st defendant has also submitted that by virtue of contents of registered mortgage deed executed in favour of 1st defendant, the mortgagors namely Smt. Lalithamma and her son Late Sri. T.N Prasanna Kumar had only life interest and as such, no sale deeds could have been executed. In reply to the said arguments, it is submitted on behalf of plaintiff as well as the 2nd defendant that the life interest was only in respect of the mortgagors, but the same was not in respect of legal representatives of 2nd defendant and that the sale deeds dated: 09-06-1988 and 23-06-1988 having been executed subsequent to death of Smt. Lalithamma by the 2nd defendant and his legal representatives i.e., children, the question of life estate does not arise at all. The contents of Ex.P1 and D5 and those of mortgage deeds have supported the said reply of plaintiff and 2nd defendant. Therefore, the above said submission of 1st defendant also holds no water.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Hence, for the reasons assigned in this paragraph and preceding paragraph and also for the reasons assigned infra while answering issue No.3, this court answers issue No.1 in the affirmative.
17. Issue No.3: As mentioned herein above, it is the categorical say of 1st defendant in his pleadings and also of his witnesses in the course of trial and retrial that the sale deed at Ex.P1 and Ex.D5 were executed with ulterior motive and with fraudulent intention to cause wrongful loss to the 1st defendant and also to defeat the alleged right said to have been accrued in favour of 1st defendant by virtue of sale agreement dated: 10-07-1997.
18. That in the case on hand, the sale agreement dated: 10-07-1997 either in the original form or in the form of certified copy is not adduced before this court by the 1st defendant. It is the exclusive case of 1st defendant that by virtue of the sale agreement dated: 10-07-1997 the 1st defendant was put in possession of plaint schedule property as a prospective purchaser and therefore, since 10-07-1997 he has been residing in the plaint schedule property as a purchaser but not as a mortgagee and that the part of sale consideration was being accepted by the 2nd defendant Sri. T.N Prasanna Kumar for himself and on behalf of his children with an assurance that the said Prasanna Kumar and his children would execute absolute sale deed within a year from 10-07-1997. This being the contention in his pleading, the 1st defendant should have in the opinion of this court produced the original sale agreement before this court but he has not done so. The
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 answer given by the learned counsel appearing for 1st defendant in the course of his arguments to the effect that by virtue of Defendant-clubbing of present suit and the suit in O.S No. 1013/1989 initiated at the instance of 1st defendant and by the virtue of deletion of additional issues dated: 20-07-2005, the hands of 1st defendant were tied and therefore, the sale agreement dated: 10-07-1997 could not be produced in the course of trial and re-trial cannot be accepted at all for the simplest reason that the burden of proof of execution of sale agreement dated: 09-07-1997, the burden of proof of accepting of part of sale consideration alleged, the burden of proof of possession by the 1st defendant as a prospective buyer of the suit schedule property since 10-07-1997 are all upon the 1st defendant himself. Therefore, the non-production of original sale agreement dated: 10-07-1997 is fatal to the above said theory of 1st defendant and no quantum of oral evidence whatsoever adduced in this behalf by the 1st defendant by examining DW2 to DW5 is of no helpful to the 1st defendant.
19. That a careful perusal of cross-examination of PW1, it is crystal clear that PW1 while answering the questions put on behalf of 1st defendant had answered to the effect that, PW1 was unable to answer in respect of boundary marks and measurement of property purchased by him as per Ex.P1 and Ex.D5 and PW1 was also not answered properly as to the persons who were present at the time of negotiations and etc., but all these non- answering in the opinion of this court do not confer any
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 absolute title upon the 1st defendant in respect of suit schedule property and in order to prove his absolute ownership and title upon suit schedule property, the 1st defendant has to depend on himself, but not on the weakness of others. Therefore, the non-production of original sale agreement is fatal to the case of 1st defendant even on this ground too. It is established by virtue of admitted registered mortgage deed and the sale deeds at Ex.P1 and Ex.D5 that, it is late 2nd defendant and his children after attaining the age of majority, who have sold the plaint schedule mortgaged property for legal necessity in favour of plaintiff and that there is no restrictions in this behalf in the will by the original propositer of the property in question. That the 1st defendant cannot take contention that the entire sale consideration was not passed on to the 2nd defendant by the plaintiff as he has no locus-standi to make such contentions. Therefore, for the reasons assigned in the preceding paragraph while answering issue No.3, the theory of defendant to the effect that the sale deeds at Ex.P1 and Ex.D5 are sham documents and are nominal is not proved and established. Therefore, subject matter of issue No.3 being not proved, the said issue is hereby answered in the negative.
9.2 As can be seen from the aforesaid findings recorded by the trial court, the same does not contain any illegality or infirmity warranting interference by this Court in the present appeal.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Accordingly, Point No.1 is answered against the appellant and in favour of respondent No.1.
Re-Point No.2:-
10. As stated supra, in the original plaint, the plaintiff had sought for a direction to the 1st defendant to deliver possession of the suit schedule property to the plaintiff together with mortgage deed and other documents. In the appeal preferred by the 1st defendant in R.F.A.No.660/2011, this Court came to the conclusion that the suit ought to have been brought in terms of Order 34 CPC (mortgage suits) and that the plaintiff is to be permitted to amend the plaint to bring the suit inconformity with Order 34 CPC.
Accordingly, the plaint got the plaint amended vide Order on I.A.1/2015 dated 17.07.2015.
10.1 In this context, learned counsel for the appellants submitted that the trial court had committed an error in passing the said order dated 17.07.2015 allowing amendment as sought for in I.A.No.1/2015. It is needless to state that the said contention of the appellant has been refuted by the learned Senior counsel for the 1st respondent.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 10.2 Before adverting to the rival contentions, it would be apposite to extract the relevant portion of the remand order passed by this Court, which specifically permitted the plaintiff to amend the plaint by holding as under:-
" At the outset, it is noticed that it is indeed a suit for redemption of mortgage, in which event, the trial court was duty bound to indicate to the plaintiff that the suit was not brought in the proper form and also ought to have proceeded in terms of order XXXIV of the CPC. Therefore, there is a procedural lapse, which could even be said would go to the root of the matter. In that, there is no complete relief granted to the plaintiff, which was essential in order to confer title on the plaintiff, which stands eclipsed by virtue of the mortgage in favour of the first defendant. Unless there is redemption and reconveyance of the property in favour of the plaintiff by means of a registered document, it does not result in the plaintiff recovering title and possession of the property. Therefore, this lacuna would have to be set right and since the court below however has proceeded to adjudicate on the claim of the plaintiff and has arrived at a certain decision, it would not be in the interest of the parties or in the interest of justice to efface the proceedings. It would be appropriate if the plaintiff is permitted to amend the plaint incorporating the prayer that would necessarily have to be sought in a suit for redemption of mortgage.
Hence, the judgment and decree of the trial court is set aside and the matter is remanded to the trial court and the plaintiff shall be permitted to amend the plaint suitably and
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 the defendant no.1 shall be permitted to file additional written statement and shall be permitted to cross-examine PW.1 and tender evidence if any and the court below shall follow the procedure in adjudicating the matter further in terms of Order XXXIV of the CPC and other provisions. This however shall be on payment of costs of Rs.25,000/- by defendant no.1 to the plaintiff before the trial court immediately on remand. The parties shall appear before the court below without any further notice on 29.6.2015 on which date, the defendant no.1 shall pay the costs. Since the suit was of the year 1989, it is appropriate that the proceedings be expedited and therefore, the court below is requested to address the matter on a day to day basis, depending on its board and dispose of the matter at the earliest, in any event, within a period of three months, if not earlier from the date of remand.
Incidentally, it is the further claim of the appellant that his suit for specific performance which has been revived and in which the trial is on and it is requested that the present suit be tried along with the same. On the say of the defendant himself, when the procedure prescribed in respect of a suit for redemption of mortgage is different from that of a suit for specific performance, the question of clubbing the two matters is not permissible. Secondly, they are independent transactions and shall be treated as such.
There is no warrant for the suits to even be tried side by side as claimed by the defendant.
10.3 It is a matter of record and undisputed fact that the aforesaid remand order passed by this Court in R.F.A.No.660/2011
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 and the findings recorded by this Court have attained finality and become conclusive and binding upon the appellant. As is clear from the aforesaid remand order and the findings recorded by this Court, the plaintiff has been specifically permitted / granted leave by this Court to amend the plaint and consequently, no fault can be found with the order dated 17.07.2015 (after remand) passed by the trial court allowing the amendment application I.A.1/2015 filed by the plaintiff. Under these circumstances, I am of the view that that the trial court was fully justified in allowing I.A.1/2015 filed by the plaintiff permitting him to amend the plaint, in particular, the prayer column and as such, the said contention of the 1st defendant cannot be accepted.
10.4 The appellant has contended that the suit of the plaintiff had not been properly framed and there was no compliance of the provisions contained in Order 34 CPC and Section 60 of the Transfer of Property Act. Before adverting to the said contention, it would be necessary to extract Section 60 of the T.P.Act, which reads as under:-
60. Right of mortgagor to redeem.-- At any time after the principal money has become [due], the mortgagor has a right, on payment or tender, at a proper time and place,
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 of the mortgage-money, to require the mortgagee (a) to deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by act of the parties or by [decree] of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
Redemption of portion of mortgaged property.-- Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except [only] where a
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgager.
So also, Order 34 Rule 7 CPC reads as under:-
ORDER XXXIV SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY
7. Preliminary decree in redemption suit.--(1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree--
(a) ordering that an account be taken of what was due to the defendant at the date of such decree for--
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up to that date, in respect of mortgage- security, together with interest thereon; or
(b) declaring the amount so due at that date; and
(c) directing--
(i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause
(a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 respectively as provided in rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all encumbrances created by the defendant or any person claiming under him where the defendant claims by derived title, by those under whom the claims, and shall also, if necessary put the plaintiff in possession of the property; and
(ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant shall be entitled to apply for a final decree--
(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgage property, be sold, or
(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property.
(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 10.5 A conjoint reading of Section 60 of the T.P.Act and the provisions contained in Order 34 Rule 7 CPC r/w Form 46 of Appendix - A of CPC will indicate that in the case of usufructuary mortgage (mortgage with possession), it would be necessary for the plaintiff to plea and seek appropriate prayers for,
(a) direct the mortgagee - 1st defendant to hand over possession of the suit schedule property to the plaintiff;
(b) direct the 1st defendant to hand over custody of the documents in respect of the suit schedule property to the plaintiff;
(c) direct the 1st defendant to redeem / discharge the mortgage and re-convey the suit schedule property to the plaintiff;
10.6 In the instant case, a perusal of the relevant pleadings in the body of the plaint and the prayer column clearly indicate that the plaint is inconformity / inconsonance with Order 34 CPC r/w Section 60 of the T.P.Act r/w Form -46 of Appendix - A of CPC. The relevant pleadings and prayers sought for by the plaintiff in the amended plaint are as under:-
4. The 2nd defendant and his mother Smt. T.N.Lalithamma as owners of the property more fully described in the schedule hereunder mortgaged the schedule property with possession in favour of the first defendant as
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 per the registered deed of mortgage with possession dated 10-12-1962 and registered as No. 2814 in book I Volume 1220 at pages 117 to 122 in the office of the sub registrar Shivajinagar, Bangalore and delivered possession of the schedule property to the first defendant and the first defendant has been in possession of the schedule property as mortgage thereof. The original mortgage deed is with the first defendant and the Xerox copy of the certified copy of the mortgage deed is produced here with and marked as Annexure-B.
5. The period of the mortgage is 15 years and the mortgage is redeemable after the said period of the mortgage. The mortgage deed was executed on 10-12-1962. The period of mortgage is 15 years ending with 9-12-1977 and mortgagors are entitle to redeem the mortgage thereafter.
6. The mortgagors should redeem the mortgage by paying the mortgage amount of Rs. 2,500/- (Rupees Two Thousand Five Hundred only) to the first defendant.
10. The plaintiff has purchased the schedule property for the valuable sum of Rs. 85,000/- (Rupees Eighty Five Thousand only) subject to the redemption of mortgage by paying the amount of Rs.2,500/- (Rupees Two Thousand Five Hundred Only) to the first defendant and taking possession of the schedule property from him.
11. The Plaintiff is bonafide purchaser of the schedule property for a valuable consideration and the plaintiff issued the notice to the first defendant that he is ready and willing to pay the mortgage amount to the first defendant and the first
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 defendant should execute the redemption deed and deliver vacant possession to him.
13. The plaintiff is ready and willing to pay the mortgage amount of Rs. 2,500/- (Rupees Two Thousand Five Hundred Only) to the first defendant and has on this day deposited the said sum into the court.
14. The plaintiff is entitled due under the mortgage into the court. Rs.2,500/- (Rupees Two Thousand Five Hundred Only) due under the mortgage into the court.
15. The cause of action for the suit arose on 10-12- 1962 when the second defendant and his mother executed the registered deed of mortgage with possession in favour of the first defendant and on 9-12-1987 when the period of mortgage expired and on 9-06-1988 and 23-6-1988 when the fact of sale was informed to the first defendant and subsequently at Bangalore City when the first defendant has refused to receive the amount and redeem the mortgage within the jurisdiction of this Hon'ble Court.
18. Wherefore the plaintiff prays that this Hon'ble Court be pleased to pass judgment and decree against the first defendant;
a) Declaring that the mortgage deed dated 10-12-1962 registered as document No. 2814 of Book-1, volume No. 1220 at pages 117-122, in the office of the sub- registrar, Shivajinagar, Bangalore as redeemed and to have the same re-conveyed to the plaintiff and consequently.
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NC: 2024:KHC:47768
RFA No. 1464 of 2016
b) Direct the first defendant to execute
receipt/endorsement/ discharge deed in favour of the plaintiff and register the same in the jurisdictional sub-registrar office in case if the defendant No.1 fails to execute the same this Hon'ble Court be pleased to execute the same this Hon'ble Court be pleased to execute the same on behalf of the defendant No.1.
c) Direct the defendant NO.1 or the person/s claiming under him to deliver vacant possession of the suit schedule property to the plaintiff.
d) Direct the first defendant to handover the custody of the original documents in respect of the suit schedule property to the plaintiff.
e) Direct the defendant No.1 to pay mense profits to the plaintiff a sum of Rs.850/- per month from the date of the filing of suit to till the date of delivery of vacant possession of the schedule property to the plaintiff.
f) Grant cost and other such reliefs as deem fit to in the circumstances of this case."
10.7 A careful perusal of the pleadings and prayer column of the amended plaint is sufficient to come to the conclusion that the same are in complete and total conformity with the provisions contained in Order 34 CPC r/w Section 60 of the T.P.Act r/w Form -
46 of Appendix - A of CPC. While dealing with the said contention
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 urged by the 1st defendant, the trial court correctly and properly considered and appreciated the material on record and answered issue Nos. 2 and 4 as well as additional issue Nos.2 and 3 in favour of the plaintiff and against the 1st defendant. Under these circumstances, I am of the considered opinion that the trial court was fully justified in upholding the claim of the plaintiff and rejecting the claim of the 1st defendant by holding as under:-
" 14. Issue No.2: That, at the outset, it is needles to mention herein that, a mortgage is always a mortgage. A careful perusal of provisions of substantive law as contemplated under Order 59(a) R/w Section 60 of Transfer of property Act, it is crystal clear that, right to redeem the mortgage is a statutory right and such right can be extinguished only by acts of parties or by decree of a Court.
15. The above being the position of substantive law, the 1st defendant in order to have the answer of this issue in his favour is required to establish that the right of redeem the mortgage was extinguished either by a decree of Court or by act of the parties hereto.
16. That admittedly there is no decree passed by any Court of law extinguishing the right to redeem of the plaintiff. It is the specific say of 1st defendant that the sale deeds at Ex. P1 and Ex.D55 are fraudulent one and that they were executed to defeat the right of 1st defendant and to cause him wrongful loss and that they are the same documents and this
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 particular theory of 1st defendant is not established for the reasons assigned while answering issue No. 3 infra. Therefore the fact that the right to redeem of the mortgage in question was extinguished by the act of parties being not proved despite of trial and retrial this court has no option but to arrive at a conclusion that the admitted registered mortgage made in respect of suit schedule property by late smt. Lalithamma and her son Late.T.N. Prasanna Kumar being not redeemed so far is still subsisting and therefore, this Court answers issue No.2 in the negative.
22. That a careful reading of the original plaint as well as the amended plaint, it is crystal clear that all the material facts such as date of mortgage, names of mortgagors and other particulars as enumerated under Form No.46 under Appendix-A are very much pleaded by the plaintiff and therefore, the arguments canvassed on behalf of 1st defendant to the effect that the plaint is not in accordance with Order 34 of CPC and as per Form No.46 holds no water as there is no hard and fast rules that all plaints seeking the relief of redemption of mortgage should be in the verbatim form of Form No.46 only and it is sufficient enough if the plaint reflects the materials facts as covered in Form No.46. Therefore the arguments canvassed in this behalf deserves no consideration. Hence, additional issue No.1 and 2 dated:
03-08-2015 deserve to be answered in the negative and the same are answered accordingly.
23. Issue No.4: As mentioned herein above, the right of redeem is a statutory right as contemplated under section 60 of the Transfer of Property Act. That in the case on hand
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 admittedly the mortgage was done by way of registered mortgage deed dated: 10-12-1962 and the period of mortgage was 15 years and mortgaged consideration amount was Rs. 2,500/-. Therefore, in all preponderance of probability, the right to redeem did accrue on 09-12-1978. That as per the provisions of Article 61 of Schedule-I of Limitations Act, the suit seeking the relief of redemption be filed well within 30 years from the date on which right to redeem accrues. That in the case on hand, by virtue of provisions of substantive law as contemplated under section 29(a) read with Section 60 of Transfer of Property Act, 1882 the plaintiff being the purchaser of plaint schedule property from the original 2nd defendant Sri T.N Prasanna Kumar and his children defendants 2(a) and 2(e) during the subsistence of mortgage and having derived the title in accordance with law in respect of plaint schedule property from defendants other than the 1st defendant entitle to seek a direction as against 1st defendant: (a) to deliver the mortgage deed and all documents relating to plaint schedule property, which are in possession and power of 1st defendant
b) to transfer or deliver possession of plaint schedule property to the plaintiff c) to re-convey the mortgaged property in the name of plaintiff or to execute and to have registered acknowledgement in writing that any right in derogation of his interest transferred to the 1st defendant has been extinguished. Therefore, in the opinion of the remanding of matter by way of amended plaint are absolutely in accordance with Section 59(a) read with Section 60 of the Transfer of Property Act. Therefore, for the reasons assigned while answering the other issues supra, this court is of the firm view that the plaintiff is entitled to redeem the mortgage by seeking
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 possession of mortgage property besides either and acknowledgement or deed of redeem from 1st defendant. Therefore, this court answers issue No.4 in the affirmative.
24. Issue No.5: It is the specific pleading of plaintiff as well as the 2nd defendant that subsequent to the sale deeds at Ex.P1 and Ex.D5 the plaintiff as well as the 2nd defendant had informed the 1st defendant by way of notice that the said mortgaged property was sold to plaintiff by the 2nd defendant (late) and his children. With regard to these averments, it was argued on behalf of 1st defendant that no notice is adduced in the course of trial, but this objection is also not worth considering for the simplest reason that the witness DW2 by name Sri Syed Fayaz Ahmed who is also said to be the power of attorney holder of 1st defendant in his lengthy affidavit filed in lieu of chief-examination more particularly at para no.8, page no.3 of his affidavit has admitted the fact of receipt of notice dated: 24-06-1988. Therefore, the fact that the plaintiff and 2nd defendant have informed the 1st defendant in respect of purchase of plaint schedule mortgagor property by this plaintiff has sufficiently proved and established. It is also averred in the plaint that as on the date of filing of present suit the plaintiff has deposited the mortgaged consideration amount of Rs. 2,500/- on the file of this court. This assertion being not disputed by defendant No.1, the plaintiff is entitled for the mesne profits from the date of filing of suit till the realization of possession of plaint schedule mortgaged property and the quantum of mesne profits is to be determined by way of an enquiry. With these observations, issue No.5 is hereby answered in the affirmative.
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NC: 2024:KHC:47768 RFA No. 1464 of 2016
26. Issue No.7 & Addl. Issue no.3: That for the reasons assigned supra while answering the other issues, this court is of the firm view that the plaintiff herein by virtue of the substantive law as contemplated under section 59(a) read with Section 60 of Transfer of Property Act is entitled to the relieves as mentioned in the preceding paragraph. Therefore, while answering issue No.7 and additional issue No.3 in the affirmative, this court proceeds to pass the following order:
ORDER The suit is decreed with costs with a direction to the 1st defendant.
a) To deliver the mortgage deed and all documents relating to the mortgaged property which are in his possession or power.
b) To vacate the mortgaged property and hand over the vacant possession of the same to the plaintiff.
c) To execute, at the cost of plaintiff, Deed of Redeem, deed of Re-conveyance, Deed of Discharge in favour of plaintiff or in favour of any 3rd persons as the plaintiff may direct.
d) to pay the mesne profits to be determined in a separate enquiry.
Office to draw preliminary decree as per Order 34 rule 7 of C.P.C. with a further direction to the plaintiff to pay the dues to be determined in the preliminary decree and the plaintiff shall pay so within a month from the date of preliminary decree."
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 10.8 As can be seen from the aforesaid findings recorded by the trial court, the same does not contain any illegality or infirmity warranting interference by this Court in the present appeal.
Accordingly, Point No.2 is answered against the appellant and in favour of respondent No.1.
Re-Point No.3:-
11. The appellant - 1st defendant contends that the period of mortgage expired on 09.12.1977 and the prayer for redemption of mortgage having been incorporated into the plaint vide order dated 17.07.2015 allowing the amendment application I.A.1/2015, the prayer for redemption was barred by limitation, since the same was beyond the maximum period of 30 years commencing from 09.12.1977 and expiring on 09.12.2007 as contemplated under Section 61 of the Limitation Act. The said contention cannot be accepted, since the plaintiff contends that while permitting the plaintiff to amend the plaint in the remand order dated 03.06.2015 passed in R.F.A.No.660/2011, this Court did not put any rider / condition / restriction that the amendment would not relate back to the date of the suit, which was filed in the year 1989 well within the period of limitation; so also, while allowing I.A.1/2015 for
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 amendment vide order dated 17.07.2015, the trial court did not impose any such condition / rider / restriction and as such, the amendment would relate back to the date of the suit. In Prithi Pal Singh's case supra, the Apex Court held as under:-
" 9. After remand the learned Single Judge reconsidered the second appeal and dismissed the same. The learned Single Judge extensively dealt with the question whether the amendment made in the plaint would relate back to the date of institution of the suit or the same will be treated as effective from the date of this Court's order and held:
[Amrik Singh case [Prithi Pal Singh v. Amrik Singh, (2008) 3 RCR (Civ) 504 (P&H)] , RCR (Civil) pp. 506-09, paras 8-12] "8. The admitted facts now stand that the plaintiff and vendor are the co-sharers. The fate of the present appeal hinges upon the question 'whether the amendment allowed by the Apex Court vide its judgment dated 10-11-1994 will operate from the date of the order or is deemed to have been incorporated as a part of the plaint from the date of the institution of the suit?' If the amendment is considered to be part of the plaint from the date of institution of the suit, the plaintiff is bound to succeed, otherwise the suit shall fail if the amendment is found to become operative from the date of the order of the Apex Court allowing amendment. It is settled principle of law that at that time of consideration of the plea of amendment, the Court is not required to go into the question of merits of the amendment sought. A party seeking the amendment may ultimately succeed or fail on the basis of the amendment is not the relevant consideration at the time the plea of amendment is to be considered. Only consideration at the time is whether such an amendment is necessary, relevant and relate to the controversy involved in the lis. The Hon'ble Supreme Court by allowing the amendment of the plaint vide its order dated 10-11-1994 [Bakshish Singh v. Prithi Pal Singh, 1995 Supp (3) SCC 577] observed that the amendment should have been allowed, on the basis of the admitted facts. Whether the suit is barred by limitation or is within limitation, all depends upon the effective date of amendment. Mr Goel, the learned counsel for the appellants has referred to the
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 judgment passed in Tarlok Singh v. Vijay Kumar Sabharwal [Tarlok Singh v. Vijay Kumar Sabharwal, (1996) 8 SCC 367 : 1996 PLJ 237] . In this case, the parties had entered into an agreement to sell. A suit for perpetual injunction was instituted on 23-12-1987. During the pendency of the suit, an application under Order 6 Rule 17 CPC came to be filed on 17-7-1989 for converting the suit for injunction into the one for specific performance of agreement dated 18-8-1984. The amendment was allowed on 25-8-1989. A plea was raised that the suit for specific performance is barred by limitation. This plea was considered by the Apex Court wherein following observations have been made: (SCC pp. 368-69, para 6) '6. Shri Prem Malhotra, the learned counsel for the respondent, contended that since the respondent had refused performance the suit must be deemed to have been filed on 23- 12-1987 and, therefore, when the amendment was allowed, it would relate back to the date of filing the suit which was filed within three years from the date of the refusal. Accordingly, the suit is not barred by limitation. Shri U.R. Lalit, the learned Senior Counsel for the appellant, contended that in view of the liberty given by the High Court the appellant is entitled to raise the plea of limitation. The suit filed after expiry of 3 years from 1986 is barred by limitation. The question is: as to when the limitation began to run? In view of the admitted position that the contract was to be performed within 15 days after the injunction was vacated, the limitation began to run on 6-4-1986. In view of the position that the suit for perpetual injunction was converted into one for specific performance by order dated 25-8-1989, the suit must be deemed to have been instituted on 25-8-1989 and the suit was clearly barred by limitation. We find force in the stand of the appellant. We think that parties had, by agreement, determined the date for performance of the contract. Thereby limitation began to run from 6-4-1986. Suit merely for injunction laid on 23-12-1987 would not be of any avail nor the limitation began to run from that date. Suit for perpetual injunction is different from suit for specific performance. The suit for specific performance in fact was claimed by way of amendment application filed under Order 6 Rule 17 CPC on 12-9-1979. It will operate only on the application being ordered. Since the amendment was ordered on 25-8-1989 the crucial date would be the date on which the amendment was ordered by which date, admittedly, the suit is barred by limitation. The courts below, therefore, were not right in decreeing the suit.'
9. In Sampath Kumar v. Ayyakannu [(2002) 7 SCC 559 :
(2002) 3 Civil Court Cases 364] initially, a suit for prohibitory injunction was filed in the year 1988 claiming possession of the suit property. Later in the year 1989, an application under Order 6 Rule 17 CPC was made for conversion of the suit into one for
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 declaration of title of the suit property and consequential relief of delivery of possession alleging that during the pendency of the suit, defendant dispossessed the plaintiff in January 1989. The amendment was refused. However, in appeal before the Hon'ble Apex Court, the conditional amendment was allowed. The Hon'ble Apex Court observed as under: (SCC pp. 563-64, paras 11 & 13) '11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing the prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
13. ... The prayer for declaration of title and recovery of possession shall be deemed to have been made on the date on which the application for amendment was filed.'
10. From the ratio of the aforesaid judgments, following points emerge:
(a) merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing the prayer for amendment;
(b) the dominant purpose of the amendment is to minimise the litigation;
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(c) the amendment once allowed and incorporated relates back to the date of the initial institution of the suit;
(d) the Court, however, in appropriate case may restrict the application of doctrine of relation back and permit the application of the amendment from the date the amendment is allowed.
11. This principle has been enunciated by the Hon'ble Apex Court in Siddalingamma v. Mamtha Shenoy [Siddalingamma v. Mamtha Shenoy, (2001) 8 SCC 561] , wherein the Court observed: (SCC p. 566, para 10) '10. ... On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the court excludes the applicability of the doctrine in a given case, the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition.' [Ed.: The matter is emphasised in the impugned judgment in Amrik Singh case, (2008) 3 RCR (Civ) 504 (P&H)]
12. Mr C.B. Goel, learned counsel has strenuously argued that the amendment in the present case should be treated to have effected only from 10-11-1994 and the suit for pre-emption is deemed to have been instituted on the said date on the ground of the plaintiff being co-sharer. His precise contention is that the suit for pre- emption filed in the year 1994 under clause 'Fourthly' Section 15(1)(b) is barred by time having been filed beyond one year from the date of the sale in question. To appreciate this contention, the sole question is whether a new relief has been introduced way of amendment. In Tarlok Singh [Tarlok Singh v. Vijay Kumar Sabharwal, (1996) 8 SCC 367 : 1996 PLJ 237] , initially, the suit was for permanent prohibitory injunction. However, by way of amendment, a new relief of specific performance was introduced which was held to be barred by time as the cause of action for the relief of specific performance had accrued to the plaintiff in the said case from the date of the execution of the agreement to sell dated 21-12-1984. Relief of specific performance was introduced in the year 1989 which was admittedly beyond three years from the date cause of action accrued. I have already extracted the relevant observations of the Hon'ble Supreme Court in regard to the amendment. Applying the test to the fact of the present case, the plea of Mr Goel is not sustainable. In the instant case, it was a suit for pre-emption from the initial day. Initially, the ground for seeking relief was that the plaintiff is the brother of the defendant vendor. This was one of the grounds available under law by virtue of clause 'Secondly' of Section 15(1)(a) of the Act. This provision has, however, come to be struck down by the Supreme Court in Atam
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Prakash [Atam Prakash v. State of Haryana, (1986) 2 SCC 249] . The plaintiff by asking for amendment sought to introduce an additional ground on the plea that besides being the brother, he is also a co-sharer in the suit land. As observed by the Hon'ble Supreme Court, and is evident from the judgment impugned as also the report of the trial court dated 7-3-2006, there is sufficient material/evidence already on record i.e. prior to the introduction of the amendment to establish that the plaintiff is the co-sharer with the defendant vendor. Through the amendment only, a new ground has been incorporated and not the new relief. Since the suit seeking the relief of pre-emption was instituted within the time, by introduction of a new ground to support the relief, the suit cannot become time-barred. In the present case, the doctrine of relation back of the amendment has to apply as no new or fresh relief has been incorporated. Apart from above, there is another reason to decline the prayer of the appellants. It is settled law as is evident from the ratio of the judgment in Siddalingamma [Siddalingamma v. Mamtha Shenoy, (2001) 8 SCC 561] , that the court in appropriate cases while allowing the amendment, may restrict the application of doctrine of relation back and permit the amendment from the date of the amendment. In the present case, the order of the Apex Court dated 10-11-1994 [Bakshish Singh v. Prithi Pal Singh, 1995 Supp (3) SCC 577] is clear and unambiguous in its terms. No such restriction has been imposed. To the contrary, the amendment rejected by this Court has been allowed primarily on the ground that the amendment is based upon admitted facts on record. I am of the considered view that the intention of the Apex Court in allowing the amendment was/is to apply the amendment without excluding the doctrine of relation back which normally and generally governs the amendment of pleadings."
(emphasis supplied)
10. Shri P.S. Patwalia, learned Senior Counsel appearing for the petitioners argued that even though this Court granted leave to Respondent 2 to amend the plaint, the learned Single Judge should have dismissed the second appeal as barred by time because the amendment was filed much after expiry of the limitation. He further argued that while dismissing the second appeal, the learned Single Judge did not consider the amendment made in Section 15 of the Act by Haryana Amendment Act 10 of 1995 and on this ground alone the impugned judgment [Prithi Pal
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 Singh v. Amrik Singh, (2008) 3 RCR (Civ) 504 (P&H)] is liable to be set aside.
11. In our opinion, there is no merit in the submissions of the learned counsel. A reading of the order passed by this Court shows that the application for amendment filed by Respondent 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time."
11.1 In the instant case, a perusal of the remand order of this Court in R.F.A.No.660/2011 dated 03.06.2015 as well as the order dated 17.07.2015 allowing the amendment application in I.A.1/2025 passed by the trial court will indicate that in the absence of any rider / restriction / condition to the effect that the amendment shall not relate back to the date of the suit but shall be reckoned / considered from the date of the amendment application, the sole inescapable / unmistakable inference / conclusion that would emerge in the facts and circumstances of the case was that the amendment permitted by this Court would relate back to the date of institution of the suit by the plaintiff on 08.12.1989; as stated earlier, the period of 15 years stipulated in the mortgage deed expired on 09.12.1977 and the suit filed within 12 years from that date was
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 well within the prescribed / statutory period of 30 years as contemplated under Section 61 of the Limitation Act and consequently, it cannot be said that the suit of the plaintiff was barred by limitation.
11.2 A perusal of the plaint averments and the prayers sought for by the plaintiff (even prior to amendment) will also indicate that all necessary ingredients, claims, averments, contentions etc., regarding redemption of the mortgage had already been pleaded by the plaintiff who had also sought for the prayer for redemption by seeking delivery of possession and documents in relation to the suit schedule property by the 1st defendant to the plaintiff in accordance with Order 34 CPC r/w Section 60 of the T.P.Act r/w Form -46 of Appendix - A of CPC. It is needless to state that the original plaint having been filed in the year 1989 was clearly not barred by limitation and viewed from this angle also, the contention of the 1st defendant that the suit was barred by limitation cannot be accepted.
11.3 While dealing with additional issue No.1 relating to limitation, the trial court held as under:-
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NC: 2024:KHC:47768 RFA No. 1464 of 2016 " 20. ADDL.ISSUE NOS.1 & 2: These issues do Involve common discussion. Therefore, the said issues are hereby answered simultaneously.
While answering these issues, at the out set, it is necessary to comment in respect of averments of additional written statement and the relevant arguments touching upon said averments. It is the exclusive case of 1st defendant in his additional written statement that, as on the date of amendment subsequent to remand, the prayers sought for are barred by Law of Limitation and therefore, that the suit is to be dismissed. That the amended plaint despite of permission by the Hon'ble Appellate Court was not filed in accordance with Order 34 and Form-46 of C.P.C., and therefore it red the plaintiff has taken the shelter under the Doctrine of Relationship back and that the plaintiff is not entitled to do so. In reply to the said arguments, the plaintiff has relied upon the Case Law reported in [ 2009] 5 Supreme court cases, 713 and submitted that, the doctrine of Relationship back is very much applicable to the facts of the case on hand.
11.4 As can be seen from the aforesaid findings recorded by the trial court, the same does not contain any illegality or infirmity warranting interference by this Court in the present appeal.
Accordingly, Point No.3 is answered against the appellant and in favour of respondent No.1.
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12. Insofar as various judgments relied upon by the learned counsel for the appellant, the same having been rendered in the factual matrix involved in the said cases are not applicable to the facts of the instant case as discussed above and consequently, the said judgments had not elaborately dealt with for the purpose of this order.
13. Upon re-appreciation, re-evaluation and re-consideration of the entire material on record, I am of the view that the trial court has correctly and properly considered and appreciated the entire material on record and passed the impugned judgment and decree, which cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse warranting interference by this Court in the present appeal.
14. Accordingly, I do not find any merit in the appeal, the same is hereby dismissed.
Sd/-
(S.R.KRISHNA KUMAR) JUDGE Srl.