PACHAKHAN Vs. H D GOPALAKRISHNA RAO

JUDGEMENT

(1.) The appellant is defendant 4. Respondents 1 and 2 are plaintiffs. Respondent 3 is the first defendant, since deceased represented by his legal representatives. Respondents 4, 5 and 8 are respectively defendants 2, 3 and 5. The suit out of which this second appeal arises was filed in the year 1952 for redemption of Item 1 of the plaint schedule property which is Survey No. 45 of Kambalalu village, Tumkur taluk. It is unfortunate that even after all these years the litigation has not come to an end. According to the case of the plaintiff, the suit property was granted to one Tyagaraj and another land Survey No. 36 of the same village was granted to the father of the fourth defendant, both the grants being made by the Government. Under Ex. P-5 dated 24-4-1931 Tyagaraj sold Survey No. 45 to one Viswanath Mudaliar, who in turn sold it to Monterio under Ex. P-4 dated 4-1-1940. Monterio sold it to second defendant under Ex. P-3 dated 30-9-1946 and the second defendant sold it to the plaintiffs under Exs. P-1 and P-2 both dated 1-10-1948. Under Ex. P-8 dated 22-1-1949 the 2nd defendant mortgaged the suit property in favour of the first defendant under a usufructuary mortgage. Defendant 3 claims to be a tenant of defendant 2. Sixth defendant is alleged to have purchased the other properties which formed the subject-matter of the mortgage under Ex. P-8 and has remained ex parte. Defendant 4 is the contesting defendant. He admitted that Survey No. 45 was granted to Tyagaraj and Survey No. 36 was granted to his father in the year 1925. But he pleaded that since Survey No. 45 was near other properties belonging to the father of the fourth defendant and since Survey No. 36 was near other properties belonging to Tyagaraj, they exchanged the said two lands; that Tyagaraj took possession and was in enjoyment of Survey No. 36 and that the father of the 4th defendant took possession and was in enjoyment of Survey No. 45 and after his death, the 4th defendant has been in possession and enjoyment of the same. He pleaded that he has established his title by adverse possession. Admittedly, there is no document evidencing the above said exchange of the two properties. According to defendant 4 Tyagaraj sold Survey No. 36 under Ex. P-5 and it is Survey No. 36 which formed the subject-matter of the sale deeds Exs. P-4, P-3 as well as Exs. P-l and P-2 and what is purchased by the plaintiff is Survey No. 36 and not the suit property. Defendant 5 is stated to be colluding with defendant 4 in resisting the claim of the plaintiffs.

(2.) Six issues were framed on 2-6-1953. Thereafter defendants 4 and 5 were impleaded. After their written statements were filed additional issues were framed on 6-8-54 which relate to the plea of adverse possession raised by the fourth defendant. The plaint was thereafter amended with regard to the relief in respect of possession on 2-1-1958. Thereafter fourth defendant filed his additional written statement. Additional issues were framed on 17-2-1958. The evidence of both sides were recorded and the trial Court decreed the suit on 21-11-1958. The fourth defendant appealed to the Court of the Civil Judge, Tumkur in R. A. No. 17 of 1959. Since no finding had been given regarding possession, the appeal was allowed and the suit was remanded to the trial Court for fresh disposal after giving a finding on the question of possession on the basis of the evidence already recorded. After remand, the trial Court decreed the suit on 31-8-1965. The fourth defendant again appealed to the Court of the District Judge, Tumkur in R. A. No. 102 of 1967 and the lower appellate Court dismissed it on 9-2-1968. Thereafter the present second appeal has been filed by the fourth defendant.

(3.) The first contention urged by Sri B. Ramachandra Rao, learned counsel appearing on behalf of the appellant, is that the suit for redemption is not maintainable in view of the allegations in the plaint to the effect that the mortgage had already been redeemed by the sixth defendant. The lower appellate Court held on a consideration of the recitals in Ex. P-8 that the mortgage has not been redeemed by the sixth defendant. But it is contended by Mr. Ramachandra Rao that on the basis of the plaint allegations themselves the suit does not He. Under Section 60 of the Transfer of Property Act the mortgagor has a right, while asking for redemption, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee (b) to deliver possession of the mortgaged property to the mortgagor where the mortgagee is in possession of the mortgaged property and (c) to get re-transfer of the mortgaged property at the cost of the mortgagor and to have a registered acknowledgment in writing to the effect that the right of the mortgagee has been extinguished. It has been held in AIR1969 SC 751 , (1969 )1 SCC206 , [1969 ]2 SCR1061 (K. Manikchand v. Elias Saleh Mohamed Sait) that even if one of those three rights is claimed, it is a suit for redemption under Section 60 of the Transfer of Property Act. Hence merely because there is a statement in the plaint to the effect that the sixth defendant has redeemed the mortgage, the suit does not cease to be one for redemption under Section 60 of the Transfer of Property Act. Hence this contention has to be rejected. It was next contended that no relief has been asked against defendants 4, 5 and 6. But an amended plaint has been filed in the trial Court after impleading the additional defendants though the suit was originally filed against defendants 1 to 3 only. Hence, this contention also fails.