SALANKI HANMANTHRAO Vs. H GURUSHANTHAMMA

JUDGEMENT

(1.) This appeal is by Salanki Hanumanthappa defendant 3 in O.S. No.5 of 1970, on the file of the Munsiff, Davanagere. Two plaintiffs Gurushanthamma and Parvathamma, who are respondents 1 and 2 in this appeal, filed the said suit praying for possession of the suit schedule property which is premises bearing old Khaneshumari No.1183 and new door No.245, in Davanagere City, on redemption. The parties would be, in the course of this judgment referred to as plaintiffs and defendants.

(2.) The undisputed facts are as follows: The said property belonged to one Sharnamma, the mother of the plaintiffs. Sharnamma had another daughter, whose husband is defendant 5 Chandrasekharappa. Sharnamma sold the property in the year 1953 to defendant 5 and to Rudrappa defendant 6. This Rudrappa is the son of defendant 5. Defendants 5 and 6 mortgaged the suit property in favour of defendants 1 and 2 and their father on 27-9-1958 for a sum of Rs.1,500. A further mortgage was created in their favour on 21-5-1959 for another sum of Rs.300. This mortgage was a usufructuary mortgage. The period agreed to between the parties was four years i.e., upto 27-9-1972. The plaintiffs filed O.S.No.77 of 1967 challenging the sale of the property by Sharnamma to defendants 5 and 6. Defendants 1 and 2 were also parties to the said suit. That suit ultimately ended in a compromise decree, the terms of which are found in Ex.P.4. Ex.P4 is the certified copy of the compromise decree. By virtue of this decree, the property was allotted to the plaintiffs and it was agreed that they should redeem the property by making payment of the required sum to defendants 1 and 2. The plaintiffs issued a notice calling upon defendans 1 and 2 to take the amount and allow redemption of the property, and defendants 1 and 2 sent their reply as per Ex.P5 dt. 18-11-1968. Thereafter, the plaintiffs deposited the required sum in Court in Misc. Application No. 124 of 1968, on-4-12-1968, and then instituted this suit. Defendant 4 was made party to this suit on the ground that he was residing in another portion of the very same premises as a tenant under defendants 1 and 2.

(3.) It is the contention of the plaintiffs, that defendans 1 & 2 could not have created any tenancy rignts in favour of defendants 3 and 4 so as to enure do their benefit beyond the period of mortgage i.e., beyond 27-9-62, therefore, defendants 3 and 4 were trespassers so far as plaintiffs' rights are concerned, that in view of the terms of the mortgage, defendants 1 & 2 were bound to hand-over vacant possession of the suit premises to them, and hence, defendants 1 to 4 were liable to hand-over possession of the property to them. Defendants 1 and 2 filed their written statement and contended that they had inducted defendant 3 as their tenant and would make defendant 3 attorn to the plaintiffs. They denied that defendant 4 was their tenant. They further stated that under the circumstances they could handover symbolical possession only- and not actual possession. Defendant 3 filed his written statement on 31-3-1970. In that he contended, that he was a tenant under defendants 1 and 2 and he was originally paying a rent of Rs.15 per month, that m the year 1964 he executed a rent note agreeing to pay rental of Rs.20 per month, and that he being a tenant, he cannot be asked to hand-over vacant possession of the suit premises to the plaintiffs.