R KRISHNA MURTHY Vs. ANNAPURNAMMA

JUDGEMENT

(1.) The above Regular Second Appeal is directed against the Judgment and Decree made on 28-1-1978, in R.A. No. 10/1976, on the file of the Principal Civil Judge, setting aside the Judgment and Decree made on 13-11-1975, in O.S. 65/1972, on the file of the Munsiff, Ramanagaram.

(2.) The facts of the case in brief are : that the plaintiff filed a suit for directing the 1st defendant to pay mesne profits from the date of the suit upto the date of delivery of possession in addition to giving him possession. The suit schedule house and shops belonged to one Puttaswamigowda son of Puttaswami gowda. The plaintiff is the daughter-in-law of the said late Puttaswami gowda and wife of M.P. Somanna, who is deceased. The plaintiff and her deceased daughter Chandramma executed a release deed dated 20.6.1959, wherein, the suit schedule property along with other properties were taken by the plaintiff and her minor daughter in lieu of their share in the family properties. The suit schedule property was mortgaged with possession by late Putttaswami gowda in favour of one late Ranganna, the father of the first defendant under a registered mortgage deed dated 15.12.1930, for a sum of Rs. 2,000/-. The time stipulated under the said mortgage deed was 8 years. The said Ranganna, since deceased and his only son the 1st defendant in this case received a sum of Rs. 1,000/- on 1-2-1954, from late M.P. Puttaswami gowda and in pursuance thereof, the 1st defendant executed a receipt in favour of Puttas-wamigowda on the same day. Therefore, the amount payable under the mortgage deed dated 15-12-1930, is only Rs. 1,000/- and the plaintiff deposited the said balance of Rs. 1,000/- in the Court at the time of filing the suit. The plaintiff had issued a notice to the 1st defendant asking for redemption of that mortgage. The defendant had sent a reply pretending not knowing anything and by simply stating that he has not understood the notice. Defendants 2 to 4 are impleaded in this suit as they are residing in various portions of the schedule property. As against this, 1st defendant filed his written statement interalia denying all the allegations made against him. He has specifically contended that when there is a receipt on 1-2-1954, regarding the payment of money and other recitals are there. According to the said receipt, the mortgage was redeemed in respect of property bearing No. 1025. Therefore, there was no any mortgage right over that property. He ought to have filed a suit for possession of that property, but the same is barred by limitation as the 1st defendant has enjoyed the property hostile to the real owner & uninterruptedly for more than 12 years. Therefore, the suit is barred by time and he prayed for dismissal of the suit as it is misconceived and not maintainable.

(3.) The learned Munsiff on the pleadings of the parties framed the following issues : 1. Whether the plaintiff proves that the plaint schedule property belonged to Puttaswamy Gowda ? 2. Whether the plaintiff proves that she is the daughter-in-law of the abovesaid Puttaswamy Gowda ? 3. Whether the plaintiff proves that she became the owner of the plaint schedule property in lieu of her share and her daughter Chandramma's share as alleged ? 4. Whether the plaintiff proves that the plaint schedule property was mortgaged by the deceased Puttaswamy Gowda in favour of the 1st defendant's father under a registered mortgage deed with possession ? 5. Whether the plaintiff proves that on 1.2.1954 the first defendant received Rs, 1,000/- from the deceased Puttaswamy Gowda and executed a receipt ? 6. Whether the suit is barred by limitation? 7. Whether the defendants prove that the plaintiff has no right in the suit property ? 8. Whether the defendants prove that the receipt dated 1.2.1954 is a connected one ? 9. Whether the defendants prove that the suit is not properly valued ? 10. Whether the defendant No. 1 proves that he perfected the title to the suit property by adverse possession ? 11. To what reliefs ?