MAMMUNHI BEARY Vs. NEELAMMA

JUDGEMENT

(1.) This appeal arises out of the suit for redemption filed by the respondents. Respondent 1 is the wife of respondent 2. Respondent No 2 executed a usufructuary mortgage of the plaint 'A' schedule properties, which consist of nine items under Ex. P-1 dated 15-3-1943 for Mg. 300/- in favour of one Hukreaowda, who assigned his rights in favour of the appellant-defendant 1 under Ex. D-1 dated, 6-11-1947. The appellant was in possession till a Receiver was appointed by this Court for the 'A' schedule properties as well as the 'B' schedule properties which form the Kumki lands in respect of the 'A' schedule properties. The 'B' schedule properties are alleged to be the accession to the mortgage properties. The equity of redemption was transferred by the second respondent in favour of one Bommanna Gowda on 30th July. 1943 under Ex. P-3. Bommanna Gowda in turn transferred the equity of redemption under the sale deed, Ex. P-2, dated 22-2-1965 to the first respondent. It is also alleged that there were a number of valuable timber trees on the suit properties, that the first defendant has cut down trees worth not less, than Rs. 5,000/- and that he failed to account for the same. The second defendant is alleged to be the lessee of a portion of the said 'A' schedule properties under the first defendant. The third defendant is alleged to be in occupation of the house in the 'B' schedule properties. The term of the mortgage is 20 years. The plaintiffs also claim future mesne profits at a rate to be determined by the Court. The appellant is the contesting defendant. He denied the right of the plaintiffs to redeem either the 'A' schedule or 'B' schedule properties. He pleaded that he had effected improvements to the suit properties and claimed Rs. 70.000/- as the value of the same. He alleged that he had raised new areca gardens in punja lands and had to spend large sums for levelling the land and laving out u1ru khanis etc. He denied having caused any damage but stated that the trees were cut only to prevent menace by the monkeys.

(2.) A Commissioner was appointed by the trial Court. He submitted his reports, Exs. D-3 and D-4, with regard to the improvements alleged to have been effected by the appellant and the value of the same. The trial Court held, that the appellant was entitled to a sum of Rs. 7,138/towards the value of the improvements effected, in the suit 'A' and 'B' schedule properties. It further held that he was liable to pay a sum of Rs. 5OO/- towards damages caused to the suit lands. It also held that the 'B' schedule properties form an accession to the mortgaged properties and that the respondents were entitled to redeem the same. It accordingly passed a preliminary decree directing respondent 1 to pay to the first defendant or deposit into Court a sum of Rs. 6,938/- including the mortgage debt o I f Rs. 300/- after adjusting a sum of Rs. 500/-, being the damages.

(3.) The first defendant went up in appeal and the plaintiffs filed cross-objections in the lower appellate Court as regards the value of the improvements. The lower appellate Court left open the question of future mesne profits to be decided in the final decree proceedings. But for this modification it confirmed the decree of the trial Court and dismissed the appeal as well as the cross-objections.