N NANJAPPA Vs. SIDDIAH

JUDGEMENT

(1.) The plaintiffs in O. S. No. 357 of 1957 on the file of the Second Munsiff, Bangalore, are the appellants in this Second Appeal. They instituted the above suit for redemption of five mortgages executed by their father Naniaiah in favour of Konda Hanumanthaiah the deceased father of defendants 1 and 2, on 10-1-1918, 26-9-1918, 8-7-1919, 20-2-1922 and 2-12-1922. Earlier Item 1 of the plaint schedule had been mortgaged on 29-5-1916 in favour of one Hanuman Singh for a sum of Rs. 100/- and that in the mortgage deed dated 20-2-1922, Konda Hanumanthaiah was asked to discharge the said mortgage and to Set possession of the property. Konda Hanumanthaiah discharged the said mortgage and got possession of Item 1 of the plaint schedule. Under the deed dated 10-1-1918. Item 2 of the suit schedule was mortgaged; under the deed dated 26-9-1918. Item 3 and a portion of survey No. 10 was mortgaged; under the deed dated 8-8-1919, a second mortgage was created on Item 2 of the suit schedule property; and under the mortgage deed dated 2-12-1922, Item 2 was again mortgaged. The total loan advanced under all these five mortgage deeds was Rs. 500/- only. That on 30-5-1953 plaintiff 1 got a notice issued to the defendants requesting them to receive the amounts due to them under the mortgages including the land revenue that had been paid by them in respect of the suit lands and to allow redemption. No reply was received by him. Hence the plaintiffs filed the above suit for redemption of the mortgages. Because they found at the time the suits was instituted that defendant 3 had been in possession of Item 3, the plaintiffs impleaded him also as defendant. Defendants 4 to 6 were impleaded as they were found to be interested in the equity of redemption.

(2.) Defendants 1 and 2 contended in their written statement that the plaintiffs' father had no right to mortgage She properties because even before the suit mortgages, he had sold them away to one Boregowda of Soorenahalli under a registered sale deed dated 30-8-1906 and that the said Boregowda had filed a suit for declaration of title to and possession of the suit properties in O. S. No. 134 of 1918-19 on the file of the Second Munsiff. The said suit was decreed in the trial Court and it was confirmed in appeal. R. A. No. 132 of 1922-23 and in second appeal S. A. No. 82 of 1926-27 on the file of the High Court of Mysore and that the several mortgages executed by Nanjaiah during the pendency of those proceedings were hit by the doctrine of lis pendens. It was further pleaded that the legal representatives of the said Bore Gowda sued out execution of the decree and took possession of the properties on 31-10-1928 in Ex. Case No. 395/1928-29. So. even if the deceased Nanjaiah had any right, title or interest in the suit properties, the same was extinguished by reason of the decree and the execution proceedings. They further pleaded that the legal representatives of the said Boregowda had after taking possession of the suit schedule properties through Court, sold their right under sale deed dated 29-9-1929 in favour of one Doddaiah and his nephews Kallaiah and Rangaiah. Kallaiah and Rangaiah sold their right, title and interest in the properties on 6-4-1942 in favour of the said Doddaiah and that Doddaiah had in his turn sold his right, title and interest in the suit properties in favour of defendants 1 and 2 under a registered sale deed dated 15-3-1957. It was therefore, pleaded by them that they had become the absolute owners of the suit properties and that the plaintiffs had no right, title and interest in them. The defendants pleaded in the alternative that after 31-10-1928 on which date the properties were delivered pursuant to the decree in O. S. No. 134 of 1918-19 the possession of defendants 1 and 2 became adverse to the plaintiffs and that they had perfected their title to the suit properties by adverse possession. Defendant 3 claimed that Item 3 of the plaint schedule which was in his possession, did not belong to the plaintiffs at all and that he was in possession of the same in his own right. He pleaded that the said land belonged to one Narasamma and her two sons Narasegowda and Ravanna and that he had purchased the same under a sale deed dated 4-5-1942 from them. Later on because he found that defendants 1 and 2 were in wrongful possession of the said portion, he instituted O. S. No. 36 of 1945-46 on the file of the Second Munsiff at Bangalore for possession. That suit was decreed and that he was in possession as its absolute owner. He, therefore, prayed that the suit as against him may be dismissed. Defendant 5 filed a written statement stating that the suit may be decreed as prayed for. Defendants 4 and 6 adopted the written statement filed by defendant 5. In the reply, the plaintiffs pleaded that it was not true to say that the mortgagee Konda Hanumanthaiah, father of defendants 1 and 2, was dispossessed in Ex. Case No. 395 of 1928-29 by Boregowda. On the other hand the said Konda Hanumanthaiah instituted O. S. No. 45 of 1942-43 on the file of the Second Munsiff against Doddaiah who claimed to have purchased the suit lands under sale deed dated 24-9-1929 and 6-4-1942. In that suit the mortgagee stated that he was in possession of the suit properties as a mortgagee under the father of the plaintiffs and that he had not been dispossessed in Execution Case No. 395 of 1928-29 at all. He characterised the delivery proceedings as amounting to mere paper delivery and that the possession of the properties however continued to remain with him. In the said suit. Konda Hanumanthaiah had prayed for an injunction restraining Doddaiah from interfering with his possession of the suit properties. It was, therefore, pleaded that the case of defendants 1 and 2 that in Ex. Case No. 395 of 1928-29 Konda Hanumanthaiah was dispossessed, was not true. It was urged that the possession of Konda Hanumanthaiah and after him defendants 1 and 2 of the properties, continued to be that of a mortgagee and that defendants 1 and 2 were bound to allow redemption of all the mortgages in question.

(3.) The trial Court after recording the evidence and hearing the parties, dismissed the suit and the appeal filed against the judgment and decree of the trial Court, was unsuccessful. The plaintiffs have, therefore, filed this second appeal.