IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DI-IARWAD DATED THIS THE 27TH DAY OF ocToBER..2_O§9 .V BEFORE THE HONBLE MR. JUSTICE :ANA1'«n)_ REGULAR SECOND AVPPEACL; _x:0C,"s2:£41A2oo9_ " BETWEEN: L1). ' GOVINDAPPA YALLAPPA SHILAR; _ " AGE ABOUT 55 YEARS, « ., OCC AGRICULTURE, " R/A ANCHATAGEERE. TQ HUBLI. 1, APPELLANT (By Sri. G 1%'ANr;A§%<1MATH,:Ami/.)"~ V. 1-is-;AG112A*rI?;A:I;._ . . w/_0 HANAK_ANTA.RAO KADAM, Ageebout 77 years, V " " OCC HOUSEHOLD, R/A". VEJAYANAGAR V EXTEN S'10N;HUB;.,l. ' '5'«:.LAL'1TA, D/0 "HANAMANTRAO KADAM Age 'czboirt. 58 years, OCC«HQUS'EHOLD, R/A VUAYANAGAR, C '* CHUVQLI... ~ " = A PRAMu!'l;';A,A.W/O SHAMBAJIRAO KADAM Age: zsbQu}.*56 years, OCC HOUSEHOLD, R/A VIJAYANAGAR, HUBLI. I CPRATAPRAO SfO HANAMANTRAO KADAM Age about 53 years, Occ: Private work. R/A VEJAYANAGAR EXTENSIOMHUBLI. ANANDRAO I-IANAMANTRAO KADAM Age about 48 years, Occ: business. 6 [Q R/A VIJAYANAGAR EXTENSIONIIUBLI. 6. JAISIMAHARAO HANAMANTRAO KADAM, Age about 45 years, Occ: Business. RJA VLIAYANAGAR EXTENSION, HUBLI. 7. BHASKARAO S/O HANAMANTRAO Age about 42 years, Occ: Business. R/A VLIAYANAGAR EXTENSION, HUBLI. 8. SULOCHANA PARASHURAM GHATGE, Age about 39 years, Occ: Househoid works " R/A VIJAYANAGAR EXTENSION, HUBLL 9. TAJAJIRAO HANAMANTRAO I-'AD-AM Age about 37 years, Occ: Business. _ I RJA VLIAYANAGAR EXTENSION, I I HUBLI. E0. SUBBARAO i-£ANAMAINT_l3IL'\O i<L_AD.§_=IM ' Age about3I years, Occ: BusEI1_es's. J' 1* :uAvuAYANAGARExTEN$QN,_, HUBLI P',_ j I LYRESPONDENTS
(By Sri./SI’I’E:
TIES”E,EGU.LA–I§–S:EE_§§I-<35 APPEAL IS PILED U/S. 100 OF
CPC, AGAINSIIvTI~IE J'I_JD'C:EI\/£EN'l' & DECREE DTD: 17/02/2009
PASSEDIN R.A.NO.' 48/2006 ON THE FILE OF THE LEARNED I
v _ ADDITI_QNA._L DISTRICI" AND SESSIONS JUDGE, DHARWAD,
. , DISMISSINC; THE APPEAL FILED AGAINST THE JUDGMENT AND
DECEEE4.DAI*E.D":;.25/07/2006 IN 0.S NO. 333/2000 ON THE FILE OF
THE,ILEARI*~EED= PRINCIPAL CIVIL JUDGE (SRDN) EUELI, AND
APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE) FOLLOWING:
'E
trial court has rejected the contention of the defendant and
had dismissed the suit. The same having been
appeal, the First Appellate Court has affirmed H
of the trial court.
3. The Counsel for theiagappellant’
contend, that the courts below;:.”n.ave erred the i’
presumption that would.’ arise””Eijr_:’–Vi1*tue of ‘the.-eippellant
being in possession of ajgireernent of sale, which
he would notggvhaiw-:._,bee::riVi tgtfunless the entire
earnest to plaintiff, and the
plaintiff, had handed over
the sale agreemfeniit; , it
iuTh:e ‘tC’oui’ase’l: would place reliance on the
3’udgn’ier’t:t. reportedliiniShivalingamma Vs. T. Ramaiah and
(5i;héf53,:’»..{ILf§ro2:($.04 KAR. 921, in support of his contention.
In said the appellant was the plaintiff who had filed
suit forvrecovery of the mortgaged loan and the defendant in
i_ th_at”_case having set~up a similar defence, as in the present
it case on hand, that he was in possession of the original deed
‘E
of mortgage, which would raise a presumption that the
mortgage amount has been returned and by virtueg.-of the
same the mortgage deed had been handed
defendant. The Counsel would submit, that the it
that case would apply on ali fours””to–.the5_’present on
hand.
5. Though the said reported judgment be an
authority for the facts:’and ofilthat case, it
cannot be said that it which ought to
be applied I In the opinion of
this arise, on account of
the of the original agreement of
sale withouti-any’endorsernent of having repaid the earnest
money, ‘that i’iit’–.lsh_ou.ld be held that the appellant had
»returi1ed«_t.he~–. entire earnest money received under the
H agreement;offsale. There is no substantial question of law
that would’ arise in the facts and circumstances of the case.
it ” 4_ Accordingly, the appeai is rejected.
Sd/us
EDEGE