ROSAMMA Vs. B.V. RAMACHANDRAPPA

JUDGEMENT

(1.) THIS is a plaintiffs' appeal arises from the judgment and decree dated 4.2.1997 given by Sr. Kazia Mohammad Muzzammi, I Addl. City Civil Judge, Bangalore, in O.S. No. 333/80, whereby the trial Court dismissed the plaintiffs' suit for redemption, declaration and permanent injunction.

(2.) THE case of the plaintiffs in nutshell is : That the appellants-plaintiffs and defendants 2 and 3, who were later transposed as plaintiffs 2 and 3 had executed the mortgage with possession of the suit schedule property in favour of the first defendant under a registered deed of mortgage dated 8.11.1965 and given registered lease deed of the suit schedule property for the payment of interest regularly. That lease deed was by way of security for payment of interest on mortgage amount. The plaintiffs' case is that the defendant never delivered possession and the lease deed was nominal. The plaintiffs allege that on 9.11.1965 plaintiffs and the minor defendants i.e., transposed plaintiffs 2 and 3 executed another mortgage in favour of the defendant and obtained Rs. 1,000/-. The plaintiffs alleged that the plaintiffs never delivered possession to defendant-1, nor possession was taken back on lease. The plaintiffs claim to have always been in possession of the suit schedule property. Under the terms of the mortgage deed, the period of redemption of mortgage was after the expiry of three years from the date of the mortgage deed and within five years from the date of the said deed. The plaintiffs further alleged that after the expiry of the said period, the plaintiffs and minor defendants i.e., transposed plaintiffs 2 and 3 requested the first defendant to receive the mortgage amount along with interest and to return the title deeds with discharge share, but the first defendant failed to receive the said amount under the said two deeds of mortgage, instead filed the suit for arrears of rent i.e., O.S. No. 38/69 and obtained ex parte decree without any notice of knowledge to the plaintiff-appellants and thereafter filed the Execution Petition No. 1342/69 and without the knowledge of the plaintiffs and without impleading the minor transposed plaintiffs 2 and 3 of the suit as parties of the said suit and brought execution and got the property auctioned and in that auction sale the first defendant playing fraud and mischief purchased the suit schedule property and obtained the sale certificate on 9.6.1971 and on 28.5.1972 tried to demolish the suit scheduled property. The plaintiff-appellants alleged that they got information of the ex parte decree and purchase of the property by defendant-1 in the Court auction, only 28.5.1972 the day on which 1st defendant tried to demolish the building. So the plaintiffs filed the suit for the above reliefs.

(3.) THE trial Court on the basis of the pleadings of the parties framed the following issues :