V. SRINIVASA Vs. SMT. NARAYANAMMA

JUDGEMENT

(1.) Appellant filed O.S.No.243/2002 in the.Court of the Civil Judge (Sr.Dn.)., Kolar, against the respondent, for the relief of declaration of title to the effect that, he is the absolute owner of 3 items of plaint schedule properties and for consequential relief of perpetual injunction restraining the defendant or anybody claiming through her from interfering with his peaceful possession and enjoyment. The defendant resisted the suit by filing written statement and contended that the plaintiff has no right, title or interest, much less lawful possession and enjoyment of the suit properties. The Trial Court framed the issues. Plaintiff got himself examined as PW. I and examined one Krishnappa as PW.2 and marked Exs.P I to P25. Defendant got herself examined as DW. I and examined Narayanappa and Chowdappa as DWs.2 and 3. Exs.DI to D12 were marked. The Trial Court having considered the record held that the plaintiff has failed to prove that he is the absolute owner of the suit properties and as a result, dismissed the suit with costs.

(2.) Feeling aggrieved, the plaintiff filed an appeal, wherein, he filed 1.A.2 under Order 41, Rule 27 of Civil Procedure Code, seeking permission to produce 4 documents as additional evidence. I.A.2 was opposed by the respondent by filing statement of objections. The lower appellate Court after hearing learned counsel on both sides and raising the points for consideration, having considered the case, finding the appeal to be devoid of merit, dismissed the appeal and also 1.A.2, by a judgment and decree dated 4.9.2007. The said Judgments and Decrees have been challenged in this second appeal filed by the plaintiff.

(3.) Sri G.Papi Reddy, learned counsel appearing for the appellant/plaintiff contended that the Trial Court has erred in dismissing the suit and that the First Appellate Court has unjustly confirmed the judgment and decree of the Trial Court, contrary to the evidence on record and the law governing the case. Learned counsel submitted that Ex.P 1, a registered mortgage deed dated 15.5.1957 was executed by the brother of defendant's husband, in favour of the plaintiff's brother in respect of item No. I of the plaint schedule property and possession of item No. I of the plaint schedule property was handed over under Ex.P I and that the said mortgage was not redeemed and in the absence of redemption. Item No. I of suit property remained with the mortgagee and that the respondent/defendant produced and relied upon a sale deed dated 6.5.1968/Ex.D12, stated to have been executed by the mortgagor Narayanappa in respect of item No.1 of the suit property and that the mortgagor having not redeemed the said usufructuary mortgage, he could not have executed the sale deed in favour of the respondent/defendant. Learned counsel submitted that in the circumstances, the Courts below have not correctly considered Ex.P1 pertaining to item No. I of the plaint schedule property and the impugned Judgments and Decrees being highly erroneous, call for interference. Learned counsel further submitted that, there being wrong inferences drawn, the conclusion arrived at by the Courts below being erroneous, has resulted in miscarriage of justice to the appellant.