SIDDAMMA Vs. C.N. NANJUNDASWAMY AND ORS.

JUDGEMENT

(1.) This is a defendant's second appeal challenging the Judgment and decree passed by Fast Track Court, Hunsur in R.A. 215/2009 (R.A. Old No. 130/2005) dated 30.09.2010 whereunder appeal filed by the defendant came to be dismissed and Judgment and decree passed by trial court decreeing the suit for redemption of mortgage and directing the defendant to receive mortgage money and deliver vacant possession of suit schedule property to the plaintiff along with original documents with a note of discharge came to be affirmed.

(2.) I have heard the arguments of Sriyuths P.M. Siddamallappa and B.S. Nagaraj, learned Advocates appearing for appellant/defendant and respondents/plaintiffs respectively. Perused the Judgment and decree passed by trial court as affirmed by first appellate court.

(3.) Plaintiff filed a suit for redemption of mortgage deed dated 06.02.1966 executed by his father contending inter alia that his father had mortgaged suit schedule property in favour of defendant for Rs. 2,000/ - and executed said deed and terms of mortgage being usufructuary mortgage, defendant was put in possession on the date of execution of mortgage deed i.e., 06.02.66 and it was agreed that mortgagor shall get the mortgage redeemed after paying mortgage money after six years and it was also agreed that if the plaintiffs' father fails to redeem the mortgage immediately after six years (mortgage period), mortgagee shall continue in possession till mortgage is discharged by paying the mortgage money. On execution of mortgage deed plaintiffs' father expired and as such plaintiffs are said to have requested defendant to redeem the mortgage after receiving mortgage money and also requested for return of all original documents relating to mortgaged property which are undisputedly in the custody of defendant and also sought for restoration of possession. Plaintiffs' request being refused by defendants or demand not being complied plaintiffs got issued a legal notice and filed the suit in question. On service of suit summons defendant appeared and filed her written statement and she admitted the execution of mortgage deed as also possession of mortgaged property being with her. However she set up a plea of having perfected title to suit property by adverse possession. Defendant further contended that after the period prescribed under the mortgage deed (six years) having expired on 06.02.1972 none of the plaintiffs came forward to redeem the mortgage and as such right of ownership is created in favour of defendant. It was also contended that right of mortgagee to seek redemption of mortgage was time barred and beyond the period of limitation. Hence, on these grounds defendant sought for dismissal of the suit. On the basis of pleadings of the parties, trial court framed following issues for its determination: