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2020 DIGILAW 420 (KAR)

B. Nagarathna v. Devamma

2020-02-13

NATARAJ RANGASWAMY

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JUDGMENT Nataraj Rangaswamy, J. - This regular second appeal is filed by the plaintiff in O.S. No. 353 of 2005 challenging the judgment and decree of the Trial Court and concurring judgment and decree of the First Appellate Court dismissing the suit for declaration of title and possession of the suit property. 2. For the sake of brevity and easy understanding, the parties in this judgment are referred to as they were arrayed before the Trial Court. The appellant herein was the plaintiff while the respondent was the defendant before the Trial Court. 3. It is the claim of the plaintiff that the suit property bearing No. 537, 537/1 situated at 1st Cross, Kamatageri, Nazarabad Mohalla, Mysuru was originally owned by Puttananjappa and after his death, his daughter Smt. Saraswathamma and her son C. Chandrashekar and one Smt. Parvathi and her minor children executed an absolute Deed of Sale dated 28th July, 2004 in favour of the plaintiff and therefore, the plaintiff became the owner of the suit property. It is the claim of the plaintiff that one Borappa and Thimmaiah were tenants under Smt. Saraswathamma against whom the son of Smt. Saraswathamma had filed H.R.C. proceedings in H.R.C. Nos. 335 and 336 of 1998. The said proceedings were withdrawn. Later, the tenant Thimmaiah vacated the property and delivered the possession in favour of the plaintiff. It is stated that the defendant in the suit, taking advantage of the absence of the plaintiff, unlawfully broke open the lock of the suit property and tress-passed into the same. Thus, the suit for declaration and possession was filed. 4. The defendant appeared and filed his written statement claiming that the suit property was originally belonged to one Late Madaiah @ Gollara Madaiah who had three wives. Sri. Puttananjappa was born to the said Madaiah from his second wife. One Ramanna and Mahadevu and a daughter were born to the said Madaiah from his third wife, Smt. Madamma. It is stated that Puttananjappa as an eldest member of the family had mortgaged the property bearing Nos. 537 and 537/1 along with his step-mother Smt. Madamma in the year 1943 to one Smt. Ramabayamma. The said mortgage was redeemed later by creating another mortgage in favour of one Sri Narayana Jettappa in terms of a mortgage deed dated 26th July, 1949. The said Narayana Jettappa was in possession of the property as a mortgagee. 537 and 537/1 along with his step-mother Smt. Madamma in the year 1943 to one Smt. Ramabayamma. The said mortgage was redeemed later by creating another mortgage in favour of one Sri Narayana Jettappa in terms of a mortgage deed dated 26th July, 1949. The said Narayana Jettappa was in possession of the property as a mortgagee. The said mortgage was discharged and made over in favour of one Sri B. Chennaiah on 02nd July, 1966 as he had paid the mortgage money to Sri Narayana Jettappa. Based on the above, the said Chennaiah was in possession of the suit property since 02nd July, 1968. Subsequent thereto, Ramanna and Mahadevu executed a deed of absolute sale in favour of B. Chennaiah in terms of the Sale Deed dated 24th November, 1969 and he was placed in possession of the said property. After the death of the said B. Chennaiah on 21st July, 1996, the defendant being his legal heir was in possession and enjoyment of the said property. She stated that the suit property was let-out by B. Chennaiah in favour of Borappa and Thimmaiah. Though attempts were made to get the name of B. Chennaiah entered in the records of Mysuru City Corporation, the same proved futile. Taking undue advantage of the situation, the said Smt. Saraswathamma managed to get the khatha transferred to her name and on the death of B. Chennaiah, Smt. Saraswathamma had brought about a colorable Sale Deed in favour of the plaintiff. 5. The Trial Court noticed the contentions of the defendant and also relied upon Ex. D4, which is the mortgage deed dated 16th December, 1943 and another mortgage deed dated 24th July, 1949 (Ex. D5) and Sale Deed dated 24th November, 1969 (Ex. D6) in favour of B. Chennaiah and held that there were antecedent documents of title in favour of the defendant which were not disturbed and that the plaintiff had not made out a case for declaration and consequently, dismissed the suit with costs of Rs. 1,000/-. 6. An appeal preferred there from by the plaintiff before the First Appellate Court was also rejected. The plaintiff is therefore before this Court in this regular second appeal. 7. It is no doubt true that Ex. D4, Ex. D5 and Ex. 1,000/-. 6. An appeal preferred there from by the plaintiff before the First Appellate Court was also rejected. The plaintiff is therefore before this Court in this regular second appeal. 7. It is no doubt true that Ex. D4, Ex. D5 and Ex. D6 indicate that the suit property was earlier mortgaged by Puttananjappa, which was redeemed and another mortgage deed was executed in favour of one Narayana Jettappa. The Trial Court has noted that in terms of Ex. D6, the mortgage was redeemed by Chennaiah and thereafter, a Sale Deed was executed by the sons of Puttananjappa, namely, Ramanna and Mahadevu in terms of Ex. D6 on 24th November, 1969. Since there are registered instruments on record, which discloses that the said Puttananjappa had divested himself of his title in the suit property at an undisputed point of time and during his lifetime, the plaintiff being the daughter of the said Puttananjappa could not get anything more than what he possessed. Consequently, the Courts below were justified in dismissing the suit of the plaintiff. As no substantial question of law arise for consideration in this appeal, the same is dismissed. In view of the dismissal of the appeal, interlocutory applications, I.A. Nos. 1 and 2 of 2012 does not survive for consideration.