SMT. SHANTHAMMA Vs. NANJAPPA (SINCE DEAD)

JUDGEMENT

(1.) The present appellant as plaintiff 2, joined by the present respondent 2 as plaintiff 1, had instituted a suit in O.S. No. 148 of 1988, against the present respondent 1, in the Court of Principal Civil Judge (Junior Division) and Judicial Magistrate of First Class, Mulbagal (henceforth for brevity referred to as "the Trial Court") for redemption of mortgage of the suit schedule properties, for possession and mesne profits. The said suit was decreed by the judgment and decree of the Trial Court dated 19-12-2001. Being aggrieved by the said judgment and decree, the present respondent 1/defendant 1 preferred an appeal in R.A. No. 24 of 2002, against the present appellant and the present respondent 2 in the Fast Track Court-III, at Kolar (henceforth for brevity referred to as "the First Appellate Court"). The said First Appellate Court by its judgment and decree dated 29-10-2005, allowed the appeal and set aside the judgment and decree passed by the Trial Court. It is against the said judgment and decree of the First Appellate Court, the present appellant has filed the present appeal.

(2.) At the first instance, the original suit was filed by the present respondent 2-Nadubeedi Muniswamy alone against the present respondent and present appellant arraying as defendants 1 and 2 in the Trial Court.

(3.) It was the summary of the case of the said plaintiff in the Trial Court was that, one Smt. Nanjamma, the mother of 2nd defendant-Shantamma, being owner and in possession and enjoyment of the suit schedule properties, during her lifetime, had mortgaged the said properties in favour of the plaintiff-Nadubeedi Muniswamy for a sum of t 2,000/-, under registered usufructuary mortgage deed dated 12-8-1964 and had delivered the possession of the suit schedule properties to him. Since sub-mortgage was permitted under the said mortgage deed, the mortgagee-Nadubeedi Muniswamy, sub-mortgaged the same properties in favour of 1st defendant-Sri Nanjappa, for a sum of Rs. 2,000/- and executed a registered sub-mortgage deed on 1-9-1970 and delivered the possession to him. Further it is alleged in the plaint that the plaintiff approached the defendant 1 several times with the mortgaged amount of Rs. 2,000/- and requested him to receive the said amount and redeem the mortgage of the said properties and deliver the possession of the properties to the plaintiff. Despite the same, defendant 1 did acceed to the request. The plaintiff caused to issue a legal notice on defendant 1 on 6-4-1988, calling upon him to present before the Sub-Registrar's Office, Mulbagal Taluk, Mulbagal, on 23-4-1988 to receive the mortgaged amount of Rs. 2,000/- and to execute necessary documents by redeeming the mortgage of the properties. The 1st defendant sent an untenable reply to the same, but did comply the demand made in the notice. Even though the plaintiff was always ready and willing to perform his part of the obligation for redemption of the mortgage, that defendant did favourably respond to it. This made the plaintiff to institute a suit against him. Since the original mortgagor-Smt. Nanjamma died, her daughter Smt. Shantamma was arrayed as pro forma defendant 2.