R. RAMA REDDY Vs. B. NARAYANAPPA

JUDGEMENT

(1.) This Regular Second Appeal is filed by the defendant in O.S. No. 161/1999 on the file of the Prl.Civil Judge (Jr.Dn.), Malur (henceforth referred to as 'Trial Court') challenging the divergent Judgment and Decree of the First Appellate Court in R.A. No. 316/2006 by which it reversed the Judgment and Decree of the Trial Court dtd. 30/9/2006 and decreed the suit for redemption of the mortgage.

(2.) The parties shall henceforth be referred as they were arrayed before the Trial Court.

(3.) The suit in O.S. No. 161/1999 was filed for a Judgment and Decree directing the defendant to receive the mortgage money and to return the mortgage deed after duly endorsing its discharge and to deliver possession of the suit property to the plaintiffs. The plaintiffs claimed that the land bearing Sy. No. 49/3 of Seethanayakanahalli village, Lakkur Hobli, Malur Taluk measuring 2 acres belonged to Muniyamma, the wife of plaintiff No. 1 and the mother of plaintiff Nos. 2 and 3. The plaintiff No. 1 executed a usufructuary mortgage in favour of the defendant on 24/9/1962 mortgaging the suit property for a sum of Rs.400.00. It was understood that the defendant shall enjoy the usufructs and appropriate the same towards the interest and the period of mortgage was five years from the date of execution of the deed. The plaintiffs claimed that after the expiry of five years, the defendant requested the plaintiff No. 1 to permit him to continue in possession of the suit property. However, in the year 1989, the defendant filed a suit in O.S. No. 163/1989 for the relief of declaration that he had perfected his title to the suit property by adverse possession and sought perpetual injunction to protect his possession. The said suit was decreed in part on 6/4/1999 and possession of the defendant was protected. After disposal of the suit, the plaintiffs caused a notice dtd. 22/4/1999 to receive the mortgage money of Rs.400.00 and deliver back possession. Since the defendant failed to comply, the plaintiffs deposited a sum of Rs.400.00 before the Court and hence, sought redemption of mortgage and delivery of possession.