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1989 DIGILAW 198 (KAR)

VENKATEGOWDA v. SHIVANEGOWDA

1989-06-19

K.A.SWAMI

body1989
SWAMI, J. ( 1 ) AT the stage of admission, the respondents are notified. The 1st respondent has put in appearance through a counsel. The 2nd respondent is deleted by the order dated 15-2-1989. The records are also received. ( 2 ) THIS second appeal arises out of a suitbearing o. S. No. 241/1982 on the file of the munsiff, malavalli filed by the 1st respondent-plaintiff for redemption of the suit schedule properties. The trial court has dismissed the suit whereas the lower appellate court has reversed the judgment and decree of the trial court and has decreed the suit. ( 3 ) SRI G. S. Visweswara, learned counselfor the appellant (1st defendant) has advanced two contentions: (1) that the 1st respondent-plain tiff had on the earlier occasion in respect of the very suit property filed p. S. No. 76/1976 in the court of the munsiff, malavalii for a declaration of title and for possession; that at that time, the suit property had been mortgaged to the appellant-1st defendant and the relief of redemption was available to him on the date the earlier suit o. S. No. 76/1976 was filed by the 1st respondent-plaintiff; that the plaintiff without obtaining the leave of the court did not seek the relief of redemption, therefore, the present suit for redemption is barred by order ii, Rule 2, C. P. C. (2) that the judgment in o. S. No. 76/1976 as affirmed in r. a. No. 114/1977 operates as res judicata inasmuch as in the said suit, it was held that the plaintiff was not entitled to possession. Contention No. 1 ( 4 ) IT ts not possible to accept thiscontention. In order to plead the bar of order ii, Rule 2, C. P. C. the party pleading such a bar is required to produce the pleadings of the previous suit. The pleadings are not produced. Therefore, this itself is sufficient to negative the contention (see A. I. R. 1964 s. c1810 - gurubux singh v bhooralal ). ( 5 ) EVEN otherwise, I am of the view thatthe cause of action for the suit for redemption is the mortgage itself whereas the cause of action for the suit for a declaration of title and possession is not the mortgage; but it is denial of title of the plaintiff and dispossession by him from the scheduled property. ( 5 ) EVEN otherwise, I am of the view thatthe cause of action for the suit for redemption is the mortgage itself whereas the cause of action for the suit for a declaration of title and possession is not the mortgage; but it is denial of title of the plaintiff and dispossession by him from the scheduled property. Therefore, both the suits cannot be held to have been instituted on the same cause of action. In order to hold that the bar contained in order ii, Rule 2, of the c. p. code is attracted, the relief claimed in the subsequent suit must arise out of the same cause of action on which the previous suit was instituted. However, it is submitted by the learned counsel for the appellant that in the previous suit also the mortgage was pleaded; therefore, it should be held that the cause of action for the previous suit was also the mortgage in question. The fact remains that the earlier suit was not for redemption but it was for a declaration of title and possession. That being so, there mere fact that there was a reference to the mortgage in question in the pleadings of the earlier suit, is not sufficient to hold that the earlier suit was based upon the mortgage as long as no relief was sought in the previous suit on the basis of and in relation to the mortgage in question. The contention No. l is therefore, rejected. Contention No. 2 ( 6 ) NOW coming to the second contentionit is (sic) the previous suit, the decree for possession was refused on the ground that the suit property had been mortgaged to the present appellant-lst defendant. However it is contended that the decree passed dismissing the previous suit for possession operates as resjudicata. Therefore, the point for consideration is as to whether the dismissal of the earlier suit for possession can be held to operate as resjudicata for entertaining the subsequent suit for redemption. ( 7 ) NO doubt the parties are the same, thesuit property is also the same and the court which tried the earlier suit is also the same. Therefore, the point for consideration is as to whether the dismissal of the earlier suit for possession can be held to operate as resjudicata for entertaining the subsequent suit for redemption. ( 7 ) NO doubt the parties are the same, thesuit property is also the same and the court which tried the earlier suit is also the same. But the fact remains that the decree for pos-session was refused in the earlier suit on the basis that the suit property was mortgaged meaning thereby that the proper course for the 1st respondent-plaintiff herein was to seek for possession of the property on redemption of the mortgage. Therefore, it cannot be held that in the earlier suit, it was finally and conclusively decided that the plaintiff therein who is the 1st respondent herein was not at all entitled to seek redempion of the mortgage and consequently seek possession of the mortgaged property so as to bar the subsequent suit for redemption and possession by the Rule of res judicata. In fact, the ground made for refusing possession in the earlier suit has become one of the grounds for the subsequent suit. As already pointed out, the ground for refusing the decree for possession was that the suit property was mortgaged, therefore, unless the mortgage was redeemed, the mortgager was not entitled to seek possession. Therefore, the present suit is filed on the basis of the mortgage for redemption of the mortgage. Hence I am of the view that the Rule of res judicata is not attracted to the case on hand. ( 8 ) SRI Visweswara, learned counsel forthe appellant has placed reliance on explanation iv to Section 11 of the civil procedure code. The said explanation reads thus :"any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. " ( 9 ) NO doubt one of the defences of the 1stdefendant was that the plaintiff herein who was also the plaintiff in the previous suit was that he was not entitled to possession because the suit property was mortgaged to him. Whether under the mortgage, the plaintiff herein was entitled to redemption of the mortgage and possession or not was not gone into in the previous suit. Whether under the mortgage, the plaintiff herein was entitled to redemption of the mortgage and possession or not was not gone into in the previous suit. On the contrary, on the basis of such defence, the decree for possession was refused. Therefore, it is not possible to hold that the right of the mortgager to redeem the mortgage in question could be deemed to have been a matter which was directly and substantially in issue in the previous suit. Therefore, it is not possible to accept the contention of Sri Visweswara based upon explanation iv to seclion 11 of the C. P. Code. ( 10 ) 1. Lastly it is contended that the lowerappellate court was not justified in holding that the appellant-1st defendant was not entitled to challenge the title of the plaintiff-1st respondent. In support of this plea, a decision of the supreme court in Syed Mohammed Salie Labbai v Mohammed Hanifa and others, AIR 1976 SC 76 , is relied upon. On the basis of the said decision it is contented that as the pleadings of the previous suit were not produced, it was not open to the plaintiff-1st respondent to put-forward a plea that the appellant-1st defendant was not entitled to challenge the title of the plaintiff as the finding on title recorded in the previous suit operated as resjudicata. 10. 2. In the aforesaid decision, at para 8 it was observed:"the best method to decide the question of res judicata is first to determine the case of the parties as put-forward in their respective pleadings of their previous suits tnd then to find out as to what had been decided by the judgments which operates as res judicata. It is well settled that pleading cannot be proved merely by rectial of the allegations mentioned in the judgment. "it was further observed in the aforesaid decision that no pleadings of the suits instituted by the parties had been filed. Ultimately, the point of res judicata was negatived. ( 11 ) IN the instant case, we need not go tothat extent. This is a case in which the appellant - 1st defendant has himself taken the mortgage in his favour which is executed by the plaintlff-lst respondent (hereby admitting the title of the 1st respondent. Ultimately, the point of res judicata was negatived. ( 11 ) IN the instant case, we need not go tothat extent. This is a case in which the appellant - 1st defendant has himself taken the mortgage in his favour which is executed by the plaintlff-lst respondent (hereby admitting the title of the 1st respondent. The 1st defendant as a mortgagee in a possession cannot be permitted to deny the title of the mortgager as long as it is not his case that he has otherwise acquired title to the mortgaged property or another person has acquired equity of redemption. The principle embodied in Section 118 of the Evidence Act in respect of lessor and lessee can very well be applied in the case of mortgager and mortgagee and the mortgagee cannot be permitted to deny title of the mortgager as long as the jural relationship of mortgager and mortgagee continues to exist between them. Accordingly, contention No. 2 is rejected. ( 12 ) FOR the reasons stated above, theappeal involves no substantial question of law deserving admission. Hence the appeal is not admitted and it is dismissed. Appeal dismissed. --- *** --- .