Siddamma vs C.N. Nanjundaswamy and Others

Aravind Kumar, J.—This is a defendant''s second appeal challenging the Judgment and decree passed by Fast Track Court, Hunsur in R.A. 215/2009 (R.A. Old No. 130/2005) dated 30.09.2010 whereunder appeal filed by the defendant came to be dismissed and Judgment and decree passed by trial court decreeing the suit for redemption of mortgage and directing the defendant to receive mortgage money and deliver vacant possession of suit schedule property to the plaintiff along with original documents with a note of discharge came to be affirmed.

I have heard the arguments of Sriyuths P.M. Siddamallappa and B.S. Nagaraj, learned Advocates appearing for appellant/defendant and respondents/plaintiffs respectively. Perused the Judgment and decree passed by trial court as affirmed by first appellate court.

Plaintiff filed a suit for redemption of mortgage deed dated 06.02.1966 executed by his father contending inter alia that his father had mortgaged suit schedule property in favour of defendant for Rs. 2,000/- and executed said deed and terms of mortgage being usufructuary mortgage, defendant was put in possession on the date of execution of mortgage deed i.e., 06.02.66 and it was agreed that mortgagor shall get the mortgage redeemed after paying mortgage money after six years and it was also agreed that if the plaintiffs'' father fails to redeem the mortgage immediately after six years (mortgage period), mortgagee shall continue in possession till mortgage is discharged by paying the mortgage money. On execution of mortgage deed plaintiffs'' father expired and as such plaintiffs are said to have requested defendant to redeem the mortgage after receiving mortgage money and also requested for return of all original documents relating to mortgaged property which are undisputedly in the custody of defendant and also sought for restoration of possession. Plaintiffs'' request being refused by defendants or demand not being complied plaintiffs got issued a legal notice and filed the suit in question. On service of suit summons defendant appeared and filed her written statement and she admitted the execution of mortgage deed as also possession of mortgaged property being with her. However she set up a plea of having perfected title to suit property by adverse possession. Defendant further contended that after the period prescribed under the mortgage deed (six years) having expired on 06.02.1972 none of the plaintiffs came forward to redeem the mortgage and as such right of ownership is created in favour of defendant. It was also contended that right of mortgagee to seek redemption of mortgage was time barred and beyond the period of limitation. Hence, on these grounds defendant sought for dismissal of the suit. On the basis of pleadings of the parties, trial court framed following issues for its determination:

"1. Whether the plaintiff proves that, he is entitled for the redemption of the Mortgage Deed dated 06.02.1966 as the legal heirs of deceased Nagalingaswamy and the original Mortgagor?

Whether the defendants proves that, they have perfected their title over the suit schedule property by way of adverse possession?

Whether the suit is barred by Limitation?

Whether the plaintiff is entitled for Mesne Profit?

What order or decree?"

2nd plaintiff was examined as PW-1 and 1st plaintiff was examined as PW-3, one witness was examined on behalf of plaintiff as PW-2. Mortgage deed came to be produced and marked as Exhibit P-1 and four other documents were produced by plaintiffs and they were got marked as Exhibits P-2 to P-5. On behalf of defendant her power of attorney holder Sri. Muddegowda was examined as DW-1 and said power of attorney was marked as Exhibit D-1. After considering the pleadings and evidence available on record trial court answered issue No. 1 in the affirmative and issue Nos. 2 and 3 in the negative and decreed the suit as prayed for by its Judgment and decree dated 12.10.1999.

Being aggrieved by the same defendant filed an appeal in R.A. 215/2009 (R.A. Old No. 130/2005) reiterating the pleas advanced before the trial court as grounds of appeal. First appellate court formulated following points for its consideration:

"1. Whether the appellant has made out that the judgment and decree passed by the Trial Court is perverse, capricious and opposed to law, facts and circumstances of the case?

Whether the appellant has made that the Judgment and decree of the trial court has to be interfered with?

What order?"

and answered the points so formulated against appellant and dismissed the appeal and affirmed the Judgment and decree passed by trial court by its Judgment and decree dated 30.09.2010. Same has been assailed in the present appeal.

It is the contention of Sri Siddamallappa, learned counsel appearing for appellant that courts below have not examined the issue regarding suit in question being barred by limitation and finding recorded by both the courts is contrary to material evidence on record and liable to be set aside. Hence, he has prayed for formulating the substantial question of law and answering the same in favour of appellant/defendant.

Per contra, Sri B.S. Nagaraj, learned counsel appearing for respondents would support the Judgment and decrees passed by courts below and contends that findings recorded by both the courts are all question of fact and there is no substantial question of law involved for being formulated, adjudicated and answered. Hence, he prays for dismissal of the appeal.

Having heard the learned advocates appearing for the parties and on perusal of the Judgment and decree passed by courts below it would emerge that there is no dispute with regard to the fact about plaintiff''s father Sri Nagalingaswamy being the absolute owner of suit schedule property and he having mortgaged the same in favour of defendant for a sum of Rs. 2,000/- and having executed a mortgage deed in favour of defendant on 06.02.66 Exhibit P-1. It is also not in dispute that as per the terms of mortgage deed, mortgagor had delivered possession to the mortgagee and had agreed to get the mortgage redeemed after paying the mortgage money after six years from date of mortgage and further covenant in the said mortgage deed dated 06.02.66 Exhibit P-1 clearly indicated that if for any reason plaintiffs'' father fails to redeem the mortgage deed immediately after six years the mortgagee shall continue in possession of suit schedule property till mortgagor discharges the mortgage by paying the mortgage amount.

Mortgagee having been put in possession of suit schedule property is said to have got the revenue records mutated to her name and has been in possession and enjoyment of the same. On account of defendant having raised a plea of suit being barred by limitation, an issue was framed by trial Court in this regard and after considering the period stipulated under mortgage deed dated 06.02.1966, Ex. P-1, it has rightly come to a conclusion that period prescribed under Limitation Act, 1963, for redemption of mortgage and recovery of possession of mortgaged property is 30 years, when the right to redeem or to recover possession accrues. Undisputedly, the term set out in the mortgage deed clearly indicate that recital in mortgage deed Ex. P-1 at page 2 is clear and explicit namely, it indicates that after expiry of mortgage period the mortgagee who received the mortgage amount from mortgagor and is entitled to get mortgage redeemed. It is also recited therein that in the event of mortgagor not seeking for redemption immediately after the expiry of mortgage period, mortgagee would continue in possession of suit schedule property until it is redeemed in lieu of payment towards the mortgage amount. Mortgage period as agreed to under Ex. P-1 was 6 years from the date of execution of mortgage deed, which undisputedly was on 06.02.1966 and period of 6 years comes to an end on 06.02.1972. Thus, reckoning the period of 30 years from 06.02.1972 to seek for redemption of mortgage as prescribed under Article 61(a) of the Limitation Act, 1963, same would come to an end on 06.02.2002. Suit in question has been filed in the year 1996 and as such, it cannot be held that suit was barred by limitation. This fact has been rightly noticed by Courts below for rejecting the contention of defendant.

The plea of adverse possession has been rightly negatived by Courts below. It has been held by trial Court to the following effect:

"23. It is the cordianal principal of law, that the person who sets up his right by way of adverse possession shall have to primarily prove that, he is in possession of the suit schedule property and which is hostile to the right of the plaintiff''s ownership and further he has to establish that, from what point of time, he has been in adverse possession of the suit schedule property with the knowledge of the real owner of the property. More importantly he has to establish that, with the knowledge of owner he is in possession of the suit schedule property. Here in this case it is the basic contention of the defendant that, the mortgage period has to come to an end on 06/02/1972 since then the plaintiff''s have never come forward to get redeemed the mortgage deed till filing of suit on 01/02/1996 that means the suit has been filed after 24 years and he has become owner of the suit schedule property by way of adverse possession after 1984. But, the strong contention is not supported by any authorities furnished by the defendants, on the contrary the counsel for the plaintiff has relaid on certain authorities to substantiate his claim that, the law of adverse possession is not applicable to the suits for mortgage such as Vora Ibrahimji Dosaji (deceased) through LRs. Vs. Vora Ibrahim Noorbhai Makati and Bros. and Others, Limitation Act - Adverse possession - Mortgagee or his successor cannot claim title of adverse possession to the Mortgagor - and Mortgagee is deemed to be in possession of the property on behalf of the mortgagor and not independently till the redemption of mortgage by the mortgagor."

Above said finding recorded by trial Court is in consonance with the settled position of law. Inasmuch as, plea of adverse possession cannot be raised by a mortgagee or his successor-in-interest, inasmuch as, the right of the mortgagor to get the mortgage redeemed at any time within the period of limitation being available under law, such right cannot be truncated or wiped out by raising a plea of adverse possession. The mortgagee holds the possession of the property on behalf of the mortgagor and his title is never independent title. Once a mortgagee is always a mortgagee. In that view of the matter I do not find any infirmity committed by the Courts below in decreeing the suit and there is no Substantial Question of Law involved in this appeal.

That apart, learned counsel appearing for respondents/plaintiffs has also made available the copy of the order sheet of Execution No. 40/14 whereunder it has been recorded that the decree holder i.e., respondent herein (plaintiff in original suit) has already taken possession of the suit schedule property from appellant-defendant.

For reasons aforestated, I do not find any merit in this appeal and accordingly it stands dismissed. Judgment and decree passed by Fast Track Court, Hunsur in R.A. 215/2009 dated 30.09.2010 and Judgment and decree passed by Civil Judge (Jr. Dn) & JMFC, H.D. Kote in O.S. 23/96 dated 12.10.1999 stands affirmed. No costs.

In view of appeal having been dismissed, I.A. No. 2/15 for stay does not survive for consideration and same stands rejected.