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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5"" DAY OF JANUARY 2010
BEFORE:
THE HON'BLE MR. IUSTICE ANAND
REGULAR SECOND AP V}3AL--NQ.*9:54_EOEi5V A
BETWEEN:
Sri.Th.immeg0wda @ Papergowdég.
Since dead by Legal rep_resenta1tE.veAs.._
I) S:m.See1'amma,
Wzvivife A . A
Aged about 6UfY_eaA1's'; = '
2) S:nt.Ken3pam1na. 9'
'yV''ii'wc1a.
A about 38'
(2) are residing at
____f3et'taite Taluk,
Mysore DistricI--57O I34.
Smtlayamma,
Wife of Devaraju,
Aged major, _ _
Residing at ,D0a01'--- N 0.i2'73,
Janathanz1_gazf, __ ..
E\/Iys()re-i'57(},.ti).EVTI'E, b
Sri.:Girigt>TwiiVa,'A é _
S(m"':)1" Late Thi.é}nsjr1egew_d'a,__ H
Resid'inVg"2:t Huvl.iah£;1!i»_ x:;1"1;gge.
Nu11_jz:gud-«.TavlI_zVi<,'_ ' W
DisE'1'i.e{¥S7{) 081.
V. S r: Papegtiwda,
Sm': :(3«f2L2§te.e_'I"i1i m me gowda,
2 21b_()u{'_43 Years,
Sfi :1,
[Son @.f'"Late Thimmegowda,
'Aged about 36 Years,
Sri.De.varaju,
Son of Late Thi1n1neg()wda,
Aged about 30 Years,
é
Sl.N0.(7) to (9) are Residing at
Bettadabeedu Village,
Hampdpura Hobli,
H'.D.K0te Talu_k,
Mysore District 570 134. é " g;p9?g;'L',W5fg} T
(By Sh:"iyuths.R.S.Ravi, Mayz11ifi:1_ J
D.V.G0wda, Advocates for Appel1ant§}- ._
AND: F} J
l. Sri.S.Puttaswam}/,' ' * } .
Son of late "i"hi1nn3_eg0.wd::_, ' ll
Aged rl:lE1.i:C)'Ié,_' _ .
Residiiig
K.GQK0g1p;il;'i.4V _ .
*--K.a'malad;
2"? C r0sS.'w.K . G;--K_(ip_pé1'l
l\/Iy§'Oi'€'-57(,},_{)l?'9l-.
" _ 2{__ ;_S_mt..,Puttaltlhuy-a1'nii1a,
_v \7*J.ifez(if Late. Venkata,
V ' a _ A mzi_j,<)r,
'" esidiifgg at D001' N02557,
.."~.1"~J
l x VK,G.Koppal,
'v.l.\«'flys(3r€--57(} 014. RESPONDENTS
l ‘~_l(‘Shi;i.A.l\/iadhusudhana Rae, Advocate)
:3: 2:». :{< :5: :5:
This Regular Sec:(.mcl Appeal is filed under Section l()() of
Code of Civil Procedure, #908 against the judgment and decree
dated: I6. l2.2()05 passed in I A.No.4/200i on the file of tha Civil
Judge (Senior Division), Hunsur, dismissing the appeal and
confii’ming the judgment and decree dated: 2.2.200! passed in
O.S.No. 191/90 on the file of the Civil Judge (Junior DlVl;Sll3–[l) and
JMFC, H.D.Kote and etc.,
This Appeal coming on for hearing
delivered the following: —
JUDGEiV¢@j\_t’_”i”_~ it
Heard the C0unsel,—-for theiapphellari-ti,;ind tlhe’vi?esplondents.
2. The appeal C()1T1lIl1fg_–.l(){1llfol’ adriiirs_s’ion,-.0n being admitted,
the foll”owi’iig t]ue’sfi’tins»i0t” ivas flamed for consideration:
Whe,thei’ the below were justified in holding that
th6v_’p’l:aintiff_has estah.l.i_sl’ied his case of mortgage in the absence of
deed being produced, when the very execution
Was.llllden_ied’,i-.’_vvithout these being the evidence of attesting
l’~».witnes’s?’__’l1′
The facts of the case as narrated by the plaintiff »-
refispondent are that the suit property is said to be the ancestral
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property of the plaintiff . The father of the plaiiitiff had three
sons, namel , Puttaswam , Giri owda and Venkata. Giri owda is
said to have had no issues and Venkata had died 1ezt.Ving”-.hehi11d
the second plaintiff and their chiidren. Plaiiitiiffe 4_
therefore held thernseives eorrapetertt-‘tt5″‘°i’iie aiisuihttifori._;’ede.rrr.ptio11iT
of mortgage. The suit schedule p1″0{i9E.’1′[iy’._\).\/EIS sti_i_d”‘to
mortgaged to the defend:-.tnt on 965 t”or_1,000i;
by the first piaintiff artdidate and the
det’end.jint ti/’arse ‘i’i3.:\i/.€’~.:.bL’3C’3n tiutiin possession of the same on
the same*duay.% itwtts-.ifui-ti:-e:i3″agreed that the defendant shall enjoy
the U,_E{Ll’fl’UC[S oi7.tAhe’t)rt)t§e1’ty. in other words, the mortgage was at
:’u:st.i,i’frt1Ctiory _1rto_rtgztge Etlld the period of mortgage was nine years.
“‘it_ i;§.._fi,irthei_~v.state’d'”thet even prior to the execution of the registered
-V deed, the piaintiff was aiready in possession of the suit
iifv.prt3per’tyiN under an unregistered deed dated 9.8.2003 for a
‘ consideratitin of Rs.2,000/- and the term was for three years and it
is after expiry of three year period under the said unregistered
deed, that the registered deed was thereafter executed.
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After expiry of the period of mortgage, the plaintiff had
requested the defendant on several occasions for i’t3Ci€lT]plli_(_)Il of the
mortgage on receipt of the mortgage amount. The”rie–fei:.dant
having postponed the same on one pretext 0:1′:.’the.._otherg'”the.4
plaintiff was constrained to issue a”iiega«E.. notice _and_ thefeafter, f V
instituted the proceedings.
The plaintiff incidentally”eoi1~ten.ds that a.n_”‘exte.i1tVof 2 acres
under the mortgaged prop~e_rty si()u_§h-téttw bevviaciiuired by the
SpBCiL1l.._La’;1d Aetgiisi:iti_t_eeuted._»on .l.{«),lv0.l9t=.37. It was
contended that any stlchldeed ct2rjC.octed document etc. It
was also contentIed..thatltlhe’defendants ‘~ha,ye been in continuous
and su::cessiV’efé.tvnint§elr1*=attj’rted possession of the suit property to the
knowledge ‘of the pl.alnlt’iff_s’,’~who may be the real owners since
l95(}’and has-. been cultivating the same and thetefore. were
l’e1.;1lllt1in’gfti_tle._by way of adverse possession to the Very suit
___ A fly”: 2 _ V
Ext: these pleadings that the Trial Court had framed
issues lvpllacing the burden on the plaintiff to prove that the
tfiefelndant no.1 was in possession of the land under the mortgage
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deed dated l().E0.l987 and whether the plaintiff was enfitled for
redemption.
The Trial Court answered the…jssuegslmin”uliaixtjurliof»/the»up
plaintiff and negated the COnt6[1ti()nSl”€)f
carried in appeal and the appelliat_e”e.ourt .ha.\/irig_h’eld~–that’the main
contention raised by the :”dei’endai*itst nyvas””that the ‘plaVint1’ffs are not
entitled to the suit property the unequivocal
admission in ofigthe w91’itten’l–s’tate_riient that the schedule
propert’y was the’anr;estrall–a.pl’operty of the plaintiffs, the appellate
court has to that the defendants were precluded
eEoh’te_nding””otherwise and that the pleadings were a
_ c’ontrad’i-e_tio..n’l'”terms and the document namely, the kethuvar
ceiitiliiicate.’sought to be relied upon by the defendants, would not
suppol”t.t_he_ir case to substantiate that they had perfected their title
‘ -by-».adverse possession. Insofar the mortgage deed not having
l ” ~~-been produced” on the i’oot.ing that the <)1"ig.iraal had remained with
the defendants and hence, the secondary evidence was sought to
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be produced by way of marking a certified copy of the registered
mortgage deed, has been accepted by the trial court well as the
first appeliate court.
4. Hence, the question of iaw that is framed intt£hellbr’e_sent ,_
appeal to whether the suit of t,he”ip’laint1.l”1′ have beenii’. it
allowed, without the production of thexorliginal rt1ortgvageideed,ho.n
which the suit was based, have”to_ answei’ed with
reference to Section 65′ ofrhe .’:iEvi.de’ii«c_e.V:/’~\cft, which conte1n_p_lates
the circ~ti1nstaitc.es’tinder w*hik;–h’sec()ndary evidence may be given.
in the case on hand, the plaintiffs had issued a
itot_ice litoi5-t:;t_e”.,that the original mortg2;tge deed was in the
pos.sessi,on.oj’ft”‘defendant no.1 and had called upon him to produce
the Since this was not produced, the piaintiffs were
l’t.cons.ti’ained to reiy upon a certified copy of the registered
ll ” ~-doctnnent which has been accepted by both the courts below .
Hence, the question of law would have to be answered in favour
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of the respondents herein. On fa<:ts. nazfrated aimve, the
defence set up by the defendants is contradictory s:étV;is"i'i.ed
neither the trial court or the first appe1l21te_.eeih*I. flifii" idriesi
HV