SURYAKANT NARASINGSA JADI Vs. YALLAPPA

JUDGEMENT

(1.) THIS second appeal is filed by the second mortgagee of the suit properties being aggrieved by the order of dismissal passed by the Principal Civil Judge (Sr. Dn.), Hubli in R. A. No. 98/2000.

(2.) THE suit properties are, a country tiled North-East shop premise measuring about 55 'xl2' with a backyard of 10 'xl2' out of 220 sq. yards of C. T. S. No. 1132/a, Ward No. 3 of Anchatgeri Oni, hubli and another is a country tiled southern side premise measuring about 65'xl4' out of 220 sq. yards in the same survey number as noted above. According to the plaintiffs, they are the owners of the above suit properties and on 28. 8. 1961 the father of the plaintiffs by name Ambasa yallappa Pujari had mortgaged item No. 1 in a favour of husband of defendant No. 1 and defendant No. 2 for Rs. 7,000/- for a period of 7 years. Thereafter, the plaintiffs along with their father have received another sum of Rs. 23,000/- and have executed a registered mortgage deed on 23. 5. 1973 in favour of the husband of defendant No. 1 and 2 for a further period of 8 years and again created charge on item No. 1 and also mortgaged item No. 2 of the suit property. Subsequently, both the mortgagees i. e. , defendants 1 and 2 for unlawful gain have transferred their mortgage right in favour of defendants 3 and 4 on 17. 4. 1980 by a registered mortgage deed and defendant No. 5 who is the brother of defendants 3 and 4 started residing therein after having got his name entered in the CTS records. After considerable time, when the plaintiffs have approached defendants 1 and 2 and requested to get the mortgage redeemed by offering an amount of Rs. 30,000/-, on one or the other pretext they were postponing although, the plaintiffs were ready to get the mortgage redeemed by paying an amount of Rs. 30,000/ -. Hence, legal notice was issued on 06. 08. 1991 and later the suit was filed. The said suit was contested by the defendants 3, 4 and 5. It is contended by them that by virtue of the registered deed dated 17. 4. 1980 the mortgage is transferred in their favour by defendants 1 and 2 and in the family partition the mortgage right had fallen to the share of defendant No. 5 and he is residing therein with his family members and he has spent about 11, 800/- between 1980-1991 to meet the repair expenses of the suit properties and also further earlier to the filing of the suit he has again spent rs. 45,000/- towards repairing of the dilapidated walls of the suit properties thereby, the plaintiffs are liable to pay a sum of Rs. 86,800/- to get the suit relief. Based on the pleadings, the trial Court has raised as many as five issues. After the Trial and after hearing the parties, the trial Court has decreed the suit of the plaintiff directing them to deposit the mortgage amount of rs. 30,000/- and also the expenses of Rs. 5,000/- and since the amount of Rs. 30,000/- was already deposited in the Court it was directed to deposit only the remaining amount of Rs. 5,000/ -. Being aggrieved by the said order of the Trial Court i. e. , the I Additional Civil Judge (Jr. Dn.), Hubli, an appeal was preferred by defendant No. 5 before the Principal Civil Judge (Sr. Dn.), Hubli in R. A. No. 98/00. The said Court has dismissed the appeal filed by defendant No. 5. Hence, this second appeal.

(3.) THE substantial questions of law that would arise for consideration in this appeal are: