VITHOBAYYA Vs. MALLAYYA S/O NARASAPPA

JUDGEMENT

(1.) Defendant in O.S.No.50/2000, has filed this second appeal assailing judgment and decree passed in R.A.No.33/2005 by the Court of Civil Judge (Senior Division) at Yadigr (first appellate Court) dated 26.10.2006 by which, judgment and decree in O.S.No.50/2000 dated 25.10.2005 by the Court of Civil Judge (Junior Division) at Yadgir, has been confirmed.

(2.) For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

(3.) Respondents - plaintiffs filed the suit seeking the relief, of declaration of title, redemption of mortgage and consequential relief of perpetual injunction against the defendant. The aforesaid reliefs were claimed in respect of land bearing Sy.No.721, measuring 8 acres 25 guntas situated at Balichakker village, Yadgir taluk (hereinafter referred to as the suit land). The said land belonged to one Narasappa S/o Hanmantha @ Hanmappa Yagapur, father of the plaintiffs. He had borrowed a sum of Rs.1,000/- from the defendant for family necessities and he had executed a registered mortgage deed in favour of the defendant on 05.04.1975 as a security for repayment of the loan. Defendant had agreed that in lieu of interest on the said land, he would be given possession of the said land so as to enjoy the same and the loan be repaid within a period of five years. According to the plaintiffs, their father Narasappa had repaid the loan amount. Therefore, the name of the father of the plaintiffs was mutated in column No.12 (2) of the record of rights. Father of plaintiffs, Narasappa died in the year 1984. According to the plaintiffs, Narasappa had repaid the loan of Rs.1,000/- to the defendant within a period of five years from the date of mortgage and he had redeemed the mortgaged property. That plaintiffs as his legal heirs have been in possession and enjoyment of the suit land. On the death of Narasappa, the names of the plaintiffs were mutated in respect of the suit land. Defendant did not raise any objection to his name being deleted even during the lifetime of Narasappa. That plaintiffs are in actual possession and enjoyment of the suit land since the death of their father. Defendant, without having any right, title and interest over the suit land, falsely claimed to be the mortgagee over the land stating that Narasappa had not redeemed the mortgage and re-applied for mutation of his name in the year 1999. Objections were raised by the plaintiffs. According to the plaintiffs the Tahsildar, Yadgir, passed an erroneous order on 28.10.1999 mutating the name of defendant in column No.12(2) of the record of rights. On the basis of the said illegal order, defendant got his name entered in column No.12 (2) for the year 1999- 2000, in the record of rights. Plaintiffs averred that the Tahsildar, Yadgir, had no power to decide civil rights. That if the mortgage had not been redeemed by the father of the plaintiffs, then the defendant could have filed a suit for foreclosure of the mortgage but no such suit has been filed by the defendant. That the defendant is trying to interfere with plaintiffs' peaceful possession and enjoyment of the suit land on the basis of the illegal order passed by the Tahsildar, Yadgir. Defendant is threatening to dispossess plaintiffs. Therefore, plaintiffs filed suit seeking the aforesaid reliefs.