NARAYAN PUNNAPPA KHILARE Vs. SRIPAD GANGADHAR SABANNAVAR

JUDGEMENT

(1.) AND decree dated November 9, 1984, delivered by Principal Civil Judge, Belgaum in Regular Civil Appeal No. 13 of 1984, dismissing the first appeal of the defendant-appeal AND confirming the judgment AND decree dated 14th December, 1983 given in Original Suit No. 206 of 1976, by the First Additional Munsiff, Belgaum, whereby the Trial Court decreed the plaintiff-respondent's suit for redemption of mortgage AND possession of the mortgaged property AND for future mesne profits. The plaintiff-respondent filed the above mentioned Regular suit for redemption of mortgage with the allegations to the effect as contained in the plaint that plaintiff-respondent is AND has been the adopted son of one Smt. Tulsabai w/o Gangadhar Sabannavar. The plaintiff's case is that Smt. Tulsabai referred to above died on August 7, 1971, leaving behind her, the plaintiff-the only son AND heir entitled to succeed her. The plaintiff further alleged that during her life time Smt. Tulsabai had taken a sum of Rs. 2,200/- from the defendant on security of the house for her maintenance AND family needs. According to the plaint case, on the death of Smt. Tulsabai, the plaintiff succeeded to the property of Tulsabai. Plaintiff further alleged that having taken loan from defendant on security of the house, the plaintiff-respondent's mother namely Smt. Tulsabai executed a mortgage deed in favour of defendant-appellant namely Narayan Punnappa Khilare. The plaintiff claim that since after the death of Smt. Tulsabai, plaintiff has stepped into the shoes of Smt. Tulsabai AND as such he is entitled to redeem the mortgage AND to get the property of Tulsabai, which had been mortgaged by her in favour of the defendant-mortgagee namely the appellant. In paragraph-2 of the plaint, the plaintiff has given the particulars of the mortgage as under: The date of mortgage is alleged to be 11th July, 1962 AND 4th March, 1966. The name of the mortgagor has been mentioned as Smt. Tulsabai Gangadhar Sabannavar, deceased AND succeeded by her legal heir - Shripad Gangadhar Sabannavar i.e., the plaintiff-respondent. The name of the mortgagee is mentioned as Narayan Punnappa Khilare. The sum secured under the mortgage is mentioned as Rs. 2,200/- (Rs. 1,500 + Rs. 700). With reference to the rate of interest it is mentioned, being possessory mortgage the mortgagee is to enjoy the mortgaged property in lieu of interest as per the deed of mortgage dated 11-/-1962 AND has to get interest at 9 per cent per annum as per the mortgage deed dated 4-3-1966 on the sum of Rs. 700/-. Period of mortgage mentioned is five years. The property mortgaged has been mentioned as house bearing No. CTS-204 A AND B, situated within the limits of Khade Bazar, Shahapur, Tel. Belgaum. The plaintiff has further alleged in the plaint para-3 that the property in suit having been mortgaged with possession by plaintiffs predecessors in title for a total sum of Rs. 2,200/- to the defendant AND as the plaintiff has inherited AND succeeded the property AND interest of the deceased mortgagor AND the defendant being in possession as mortgagee AND enjoying the property as such, the possession of the suit property is to be hANDed over back to the plaintiff free from all suit mortgage encumbrances, after payment of the mortgage money AND that the plaintiff is ready AND willing to pay the amount due under the aforesaid mortgage. The plaintiff has further'alleged that plaintiff made a request to the defendant to accept the said mortgage amount AND release the property from the mortgage encumbrances AND to hAND over the actual possession thereof to the plaintiff. But the defendant on one pretext or other postponed AND avoided the same AND finally in the last week of April, 1976, when the money was tendered with a request to the defendant to deliver the possession of the suit property, the defendant did not do so. According to the plaintiff as such the need for filing the suit for redemption of suit property did arise AND so the plaintiff has filed the suit. The plaintiff has claimed for the decree being passed in his favour reconveying the suit mortgage property free from mortgage encumbrances after redemption AND has further prayed for actual possession being delivered, of the same to him. The plaintiff has also claimed future mesne profits from the date of the suit till the actual delivery of possession of the property to him. The defendant filed the written statement on 25-11-1976. He also filed additional written statement on July 13, 1982. The defendant-appellant denied the plaintiff-respondent claim. Nodoubt defendant admitted that Smt. Tulsabai had mortgaged the property in dispute with possession to defendant for a sum of Rs. 2,200/- for a period of 5 years AND had taken hAND loan from defendant-appellant from time to time for her maintenance AND medical expenses. But the defendant denied the plaint allegation to the effect that the plaintiff is or has been the adopted son of Smt. Tulsabai, AND the defendant further denied that Smt. Tulsabai died on /-8-1971 leaving behind her, the plaintiff-respondent as her only son. The defendant denied the plaintiff's case that plaintiff has succeeded to the property of Smt. Tulsabai AND as such the defendant asserted that the plaintiff is not entitled to redeem the suit property as the plaintiff is not the mortgagor her heir as claimed. The defendant further alleged that one Bharmanna Anantappa Sabannavar AND two others filed a suit against the plaintiff of the present suit No. 206 of 1976. It was alleged that, that the suit which had been filed by Bharmanna Anantappa Sabannavar was numbered as suit No. 128 of 1976 in the Court of Additional Munsiff, Belgaum. The defendant further alleged that the defendant-appellant AND two others were also parties as defendants in suit No. 128 of 1976. It was further alleged that in that suit O.S. No. 128 of 1976 the plaintiff of that suit claimed to have purchased the suit house No. 204/a-b AND that all the properties of Sabannavar's family is joint family property. The defendant further alleged that in suit No. 128 of 1976, the relief claimed was a decree for declaration to the effect that the present plaintiff-respondent (who was the defendant in O.S. No. 128 of 1976) is not AND has not been entitled to redeem the suit property AND other properties AND as such until that matter involved in suit No. 128 of 1976 is not finally decided, the present plaintiff has got no right to redeem the suit property. The plea was also taken to the effect that Bharmanna Anantappa Sabannavar AND others who had filed suit No. 128 of 1976 were proper AND necessary parties to the suit AND unless they are impleaded the present suit is bad for non-joinder of necessary parties. The defendant denied the plaintiffs right to claim future mesne profits as according to the defendant, the plaintiff had got no right or title to the suit property. In the additional written statement the defendant took the further plea, after having stated that it is true that Smt. Tulsabai had mortgaged the suit property in 1962 to the defendant for Rs. 1,500/- AND had created additional encumbrance on 4-3-1966 after taking further sum to the tune of Rs. 700/- from defendant AND then mortgage was for a total sum of Rs. 2,200/- That after the expiry of the period of mortgage period late Smt. Tulsabai re-let the property in suit to the defendant in 1969 on a rental of Rs. 25/- per month AND that Smt. Tulsabai used to take rent from time to time after the expiry of the period of said mortgage. The defendant's case is that as such after the expiry of the period of mortgage relationship of lANDlady AND the tenant was revived between Tulsabai AND the defendant. The defendant stated that Tulsabai had issued receipts for having received the rent after the expiry of the mortgage period AND therefore, the defendant cannot be dispossessed from the suit property without taking recourse to the provisions of the Rent Control Act. It is further alleged that as the tenancy of the defendant had been revived after the expiry of the period of mortgage, the defendants are not liable to be dispossessed from the property in the suit except in accordance with the provisions of Karnataka Rent Control Act. The defendant has further claimed to have incurred expenditure in the payment of Municipal tax as well as for having effected repairs to the suit property, which according to the defendant, Smt. Tulsabai had agreed to repay AND therefore he claimed to be entitled to that amount with interest. The defendant has shown that the amount due against the plaintiff to defendant as such has been to the tune of Rs. 4,456.27/- AND interest on the sum of Rs. 700/- from the date of suit up to date. To the additional written statement, the plaintiff-respondent filed her application described as counter statement. The plaintiff-respondent denied the defendant's case to the effect that the defendant is a tenant on a rental of Rs. 25/- or Rs. 65/- from 1969 as well as the defendant's case to the effect that deceased Tulsabai or that defendant-appellant had paid any rent to her. The plaintiff took the plea that this case as pleaded by defendant in the additional written statement was false AND baseless. The plaintiff has asserted that during the life time of Smt. Tulsabai defendant-appellant never lived or resided in the suit house as a tenant. He asserted that the defendant has taken a false plea of his being tenant from 1969 or from the date of expiry of the period of mortgage. The plaintiff has denied the defendant's claim to the effect that defendant-appellant made any repairs in the house in question, either during the life time of Smt. Tulsabai with her consent. The plaintiffs in his re-application asserted that defendant at no time spent any amount for the repairs of the property AND that defendant-respondent is not entitled to any amount towards repairs. The plaintiffs case is the defendant is the mortgagee in possession with further charge of Rs. 700/- AND is entitled to receive only Rs. 2,200/- under the mortgage deed AND not the sum of Rs. 4,456.27 paise as claimed in the additional written statement. The plaintiff further stated that suit No. 128 of 1976 filed by Bharmanna Sabannavar AND two others against the present plaintiff-respondent AND the defendant for declaration, in which the present defendant-appellant was defendant No. 2, has been dismissed vide the judgment AND decree dated 25-3-1981 AND the said decree is binding on the present defendant as the present defendant has also contested the said suit. The plaintiff further alleged in the said reapplication that in that suit it has been held that defendant No. 1 of that case namely, the present plaintiff-respondent is AND has been the legal heir of Smt. Tulsabai AND has got interest in the suit property AND that no appeal had been filed from that judgment AND decree by the present defendant-appellant, challenging the said decree, therefore, the decree AND the findings recorded therein are binding on the present defendant-appellant. On the basis of the pleadings of the parties issues as well as additional issues were framed, which read as under: