MADAPPA Vs. SONAWA

JUDGEMENT

(1.) THIS is Plaintiff's Second Appeal challenging the Judgment and decree passed by the Lower Appellate Court in R. A. No. 45 of 1992, dated 15th June 1994 and reversing the Judgment and Decree of the Principal Munsiff, Jamkhandi, in O. S. No. 21/1978, dated 29th august 1992, urging two substantial questions of law as framed at paragraph No. 6 of the Memorandum of Appeal. The rank of the parties in this Judgment is described as has been described in the original Suit for the sake of convenience.

(2.) CERTAIN relevant and necessary facts of this case are briefly stated for the purpose of appreciating, considering and answering the rival contentions urged by the learned Counsel appearing on behalf oi the parties. The Plaintiff filed the original suit against the defendants for grant of Judgment and Decree for delivery of possession of the suit schedule house property bearing VPC. No. 281 situated in Kunchanur village in Jamkhandi Taluk. The claim of the plaintiff is that the said house property measuring East to West 7 cubits and North to South 15 cubits which is fully described in the plaint schedule was purchased by the plaintiff from the deceased defendant Appanna chinnappa Birdar Patil as he was the absolute owner of the property and he had sold the said property by executing a registered sale deed dated 20th May 1970 in his favour after accepting Rs. 1,000/-towards consideration and possession of the property was delivered to him and it is his case that subsequently the deceased defendant with a mischievous intension of defrauding the right of the plaintiff had filed a false complaint with the Police and in the said proceeding the Police have disposed him from the suit schedule property. Further it is stated that the deceased defendant was in possession and there after his legal representatives Defendants 1 (a) to 1 (b) have been in possession and enjoyment of the suit schedule house and therefore the plaintiff had filed the Original Suit before the trial Court stating that his dispossession was about a year back as on the date of the institution of the suit and he got issued a legal notice dated 28. 12. 1977 for which untenable reply was given by the deceased defendant falsely contending that the transaction of the property is not a sale but it is a mortgage. Therefore, Plaintiff has filed the original suit for recovery of possession.

(3.) THE deceased defendant filed a detailed written state mentdisputing the claim of the plaintiff traversing the plaint averments in detail inter-alia contending that the deceased defendant is not the exclusive owner of the property as it was an ancestral property, therefore he had 1/3rd interest upon the said property. The suit is bad for non-joinder of proper and necessary parties to the proceedings. The deceased defendant denied the execution of the sale deed for his family legal necessity, the property is worth about rs. 5,000/- and further denied delivery of possession to the plaintiff in pursuant to the recital of the sale deed. It is stated that the deceased defendant has been in possession and enjoyment of the property along with other sharers. It is stated by the deceased defendant that he was in need of money on loan basis, therefore he had approached the plaintiff. Then he had insisted him to execute the document for collateral security for the loan amount advanced by him to the deceased defendant. Therefore, he has nominally executed the sale deed as the plaintiff had assured him that on clearance of the loan amount, the document would be torn out. He had further stated that on the same day that plaintiff had executed an agreement deed agreeing to retransfer the suit property in the name of the deceased defendant on repayment of the loan amount borrowed by him. Therefore, it is stated that the transaction in respect of the suit property is as that of a mortgage but not outright sale as pleaded by the plaintiff. Therefore, the possession of the house property was not parted by the deceased defendant and he used to pay the interest on the principal amount borrowed from the plaintiff. The deceased defendant had further stated that after the provisions of the Karnataka Debt Relief Act of 1976 has come into force, he stopped paying interest as he is a 'debtor' in terms of the definition of "debtor" under the provisions of the Act. The Sub-Divisional magistrate, Jamkhandi, has conducted an enquiry of mortgage transaction in respect of the suit schedule property that the defendant was absolved from payment of the principal amount. Suppressing the aforesaid relevant fact, the plaintiff instituted the Original Suit against the deceased defendant for recovery of possession of the house property from him.