ALLABAKSH Vs. MOHAMMED HUSSAIN

JUDGEMENT

(1.) this is plaintiffs second appeal from the judgment and decree dated 7-8-1983, delivered by the civil judge, gulbarga, in regular appeal (civil) No. 216 of 1981, which had also been preferred by the plaintiff-appellant, challenging the judgment and decree dated 15-9-1981, delivered by the munsiff, chittapur, in original suit i.e., o.s. No. 74 of 1978, dismissing the plaintiffs first civil (regular) appeal affirming the judgment and decree of the trial court dismissing the plaintiffs claim in the suit for redemption of mortgage.

(2.) the facts of the case in brief are that the plaintiff appellant filed the suit for redemption of the suit property alleging that his father had mortgaged the property in suit with the 1st defendant-respondent 1, with possession for a mortgage consideration i.e., loan amount of Rs. 500/-, sometimes in the year 1960, after executing a deed, on a stamp paper with a condition that whenever mortgage amount is paid, the 1st defendant-respondent 1, is to deliver the vacant possession of the suit property, as per terms of mortgage deed. It was provided that defendant 1, would pay the municipal taxes and enjoy the property and there will be no interest on the mortgage sum. Plaintiff alleged that his father died some 7 years prior to the date of the suit. The plaintiff further alleged that plaintiff made several requests and demands to the defendant-respondent 1, to deliver the vacant possession of the property, but, the 1st defendant did not accede to the request and thereafter, plaintiff got a notice issued for being served on defendant 1, to the same effect calling upon the 1st defendant-respondent 1, to hand over vacant possession of the suit property and to receive the mortgage amount, that is, Rs. 500/-. The plaintiff alleged that he did neither receive any reply nor that notice was complied with. Plaintiff has further alleged that defendant 1, has executed a sale deed in favour of 2nd defendant-respondent 2, that sale deed is illegal and not binding on the plaintiff-appellant. The plaintiff with these facts and allegations filed the suit, giving rise to this appeal, for redemption and for direction to the defendants-respondents to deliver the possession of the mortgage property and to receive the sum of Rs. 500/-.

(3.) that the defendants-respondents put in appearance filed the written statement and contested the plaintiffs claim. The defendants denied the plaintiffs case to the effect that the property in dispute was mortgaged by the father of the plaintiff-appellant for a sum of Rs. 500/- as loan. He denied that there was any such agreement as alleged in the plaint to return the property. The defendant 1, denied the receipt of the notice alleged to have been sent by the plaintiff. The defendant 1, asserted that there being no transaction of mortgage entered into between the plaintiffs father and the contesting 1st defendant, no question of decree for redelivery of possession of the property in suit or of receiving the sum of Rs. 500/- arises. The defendant further, alleged that the father of the plaintiff shaik mohiudeen, agreed to sell the property in question for a sale consideration of Rs. 1,700/- in favour of the defendant-respondent 1. The defendants asserted in the written statement that on 29-9-1955, under the agreement to sell, a sum of Rs. 700/- was paid in advance to the plaintiffs father as earnest money and for the same, he executed a receipt dated 29-9-1955. There, it was also agreed that the balance sum of Rs. 1,000/- shall be paid towards the transaction of sale of the property in dispute within one year and thereafter, plaintiffs father would executed the needed sale deed. The defendants further averred that on september 2nd, 1956, a sum of Rs. 1,000/- was paid by 1st defendant-respondent 1, to the plaintiffs father, who has executed a document of sale on the said date, that is, 2-9-1956, in favour of the 1st defendant-respondent 1, but, due to illness of the plaintiffs father on that day, it could not be registered and had promised to get the sale deed registered after he recovered from illness. The defendants also has averred that plaintiff s father got the name of the defendant 1 mutated in the municipal records and 1st defendant-respondent 1, started paying the taxes of the properties as owner thereof. The defendants took the plea that as the possession had been handed over under the transaction of sale on 29-9-1955, when part of consideration had been received by the plaintiffs father and thereafter, the balance was also paid on 2-9-1956 and the plaintiffs father got the name of the 1st defendant mutated in the municipal records and the 1st defendant paid the tax of the property as owner thereof. The defendant became its owner and treated himself to be the owner of the property from the date of entering into contract of sale and payment of advance and thereafter, he continued to be in possession of the suit property openly and adversely to the knowledge of the father of the plaintiff for a period of more than 12 years and as such, the plaintiff had perfected his title of property by adverse possession as well, in case, the sale deed or the deed or the unregistered documents are found to be invalid. The defendant further alleged that the defendant 1 treating himself to be the absolute owner of the property in dispute executed the sale deed of the aforesaid property in suit, in favour of 2nd defendant on 18-7-1977 and thereon, 2nd defendant became the owner and was in possession of the property and stepped into the shoes of defendant 1. Defendant 2, adopted the contentions and pleas raised by defendant 1 and in addition thereto, 2nd defendant took the plea that he was bona fide purchaser for value and it was pleaded that plaintiff had no cause of action for the suit in question and alleged that the suit was liable to be dismissed.