B JAYASHANKARAPPA Vs. D S GULWADI

JUDGEMENT

(1.) THIS Second Appeal arises from the judgment and decree dt. 13-7-1984 passed by the Additional Civil Judge, Shimoga, in Regular Appeal No. 43/1979 whereby the first Appellate Court allowed the defendants' 1st appeal and set aside the judgment and decree dt. 31-1-1979 passed by Prncipal Munsif in regular suit No. 55/74 and dismissed the plaintiff's suit for redemption.

(2.) ). The facts of the case in the nut-shell are that, the abovementioned plaintiff-appellants filed the suit for redemption of mortgage with allegations to the effect that suit scheduled property which was described in the plaint schedule originally belongs to the plaintiffs' father Siddappa who had executed a deed of mortgage on 25-7-1951 Ex. P-3 in favour of the defendant-respondent for a sum of Rs. 2,000-00 only with a condition that Siddappa, father of the plaintiffs since deceased, was to make payment of the amount of Rs. 2,000-00 borrowed from the defendant respondent, within six months from the date of deed and the defendant-respondent would be bound to reconvey suit property in favour of Siddappa, the execution of the deed. According to the plaintiffs' case, after Siddappa had sold the southern portion of the site measuring 90' x 30' in favour of the defendants vide sale deed dt. 6-11-1950 for a sum of Rs. 3,400-00 and retained the northern portion of the said land measuring 90' x 30'. It was alleged that Siddappa was in need of money, so he borrowed a sum of Rs. 1,000-00 from the defendant by mortgaging the above northern portion of land measuring 90' x 30' vide registered mortgage-deed dt. 25-6-1951. Later on being in need of more money, Siddappa borrowed a sum of Rs. 2,000-00 on the security of the property in order to discharge the anticedent mortgage deed as well as for processing the necessities, under a mortgage deed dt. 25-6-1951. It was further alleged that the defendant was willing to lend the money of Rs. 2,000-00 provided the suit property was put in possession of the defendant as a security and an ostensible sale deed by way of mortgage by conditional sale deed was executed by Siddappa in favour of the defendant and that said amount be repaid within six months from the date of document and the plaintiff pays interest at the rate of 9% p. a. as well as mortgage deed was also paid off within six months and property that was mortgaged was taken back. The plaintiffs further alleged that out a sum of Rs. 2,000-00 advanced, a sum of Rs. 1,000-00 was adjusted towards the previous mortgage deed under deed dt. 25-6-1951 by way of discharge. The plaintiffs' case was that transaction dt. 25-7-1951 executed by Ex. P-3 was the mortgage by conditional sale and was not an out and out sale and as the defendant insisted on the possession, and possession of the land was handed over to the defendant-respondent. The certified copy of the deed dt. 25-7-1951 was produced with the plaint. It was alleged that the defendant refused to redeem the mortgage and to deliver the possession of property. So the suit for redemption was filed and it was alleged that it was within time.

(3.) THE defendant contested the suit, filed written statement and asserted that the transaction dt. 25-7-1951 was really an out and out sale and it was not a mortgage by conditional sale and deed dt. 25-7-1951 was of sale, but with a condition to reconvey the property within six months from the date of execution of the sale deed. The defendant further alleged that Siddappa did not exercise this option to purchase and failed to pay the amount within the period stipulated. So the defendant became full owner of the property and the plaintiffs and any other person on their behalf have no right and suit for redemption was misconceived. The defendant has also taken other pleas of having spent enormous amounts in putting up construction etc. , but had denied that value of the site was more than Rs. 5,000-00. The defendant claimed to be in possession and asserted that suit for redemption was misconceived and further that suit was barred by limitation.