Smt. Laxmamma rep. by GPA Holder K.C. Chikkaramaiah Gowda vs Smt. Masthamma Gowda, deceased by L.Rs. (Lakshmamma Gowda and Chandramma) and Others

V. Jagannathan, J.—The second appeal is by the first Defendant before the trial court calling in question the judgments of the courts below by which the suit filed by the Respondents-Plaintiffs for mortgage redemption came to be decreed and the appeal preferred by the Appellant herein was dismissed confirming the trial court''s judgment.

The suit for redemption of the mortgage was filed by R-1 Plaintiff against the Appellant herein and others on the footing that though the mortgage was created on 24.7.1981 under a registered document and the property having been mortgaged in favour of the Appellant herein for Rs. 10,000/- by executing a usufructuary mortgage in favour of the Appellant herein, the Plaintiff, being the mother of Defendants-2 to 5, following the death of her husband Yalakki Gowda, therefore, sought for redemption of the mortgaged property and demanded the Appellant herein to release the suit property by taking the mortgage money. The Appellant did not do so. The Plaintiff, therefore, went before the trial court seeking redemption of the mortgaged property.

The Appellant herein, being the first Defendant, set up the defence that Defendants-2 to 5 executed an agreement for sale on the very same day i.e., 24.7.1981, her favour and, therefore, the Plaintiff has no locus stand to seek redemption of the mortgage.

The aforesaid stand taken by the parties in substance led the trial court to frame the following issues:

i) Whether the Plaintiff has got locus stand to file the present suit?

ii) Does she further prove the alleged mortgage deed?

iii) Whether the Plaintiff is entitled to the relief as sought?

iv) What order or what decree?

After evidence appreciation, the aforesaid points-1 to 3 were answered in favour of the Plaintiff and the suit was decreed by directing the first Defendant, who is the Appellant herein, to execute reconveyance deed in favour of the Plaintiff within three months failing which the Plaintiff can get the execution done through due process of law.

The first Defendant preferred an appeal before the lower appellate court and the learned judge of the lower appellate court framed the following points for consideration:

i) Whether the right of redemption accrued to the Plaintiff, even though she is not a party to the mortgage?

ii) Whether the Defendant Nos. 2 to 5 have executed an Agreement of Sale agreeing to sell the suit property and executed a nominal Mortgage deed?

iii) Whether judgment and decree of the trial court is sustainable?

iv) What order?

After hearing both sides and appreciating the evidence as well as the findings recorded by the trial court, the learned judge of the lower appellate court answered point-(i) in the affirmative and point-(ii) in the negative and point-(iii) with slight modification in regard to the operative portion of the judgment, and dismissed the appeal. But, the Appellant herein was directed to execute reconveyance deed hand over possession of the suit property to the Plaintiff after receiving Rs. 10,000/-, which is the mortgage amount, within three months and the Plaintiff was given liberty to get the deed of reconveyance executed with due process of law.

This Court, while admitting this second appeal, had raised the following substantial questions of law for consideration:

i) Whether the findings of the courts below as regards the interpretation of the documents Ex.D-2 and D-3 can be sustained in law?

ii) Whether the courts below erred in recording a finding as regards the document Ex.D-3, the agreement of sale, without there being any specific issue raised in this regard for consideration?

The learned Counsel for the Appellant contended that the courts below could not have recorded adverse findings in respect of the agreement for sale Ex.D-3 and the Appellant has filed a suit for specific performance based on the agreement for sale Ex.D-3 and the said suit, though was dismissed, subsequently, the Appellant had preferred an appeal, which is pending before the lower appellate court in R.A. No. 47/2007. Such being the position, the findings recorded by the lower appellate court, particularly the observations made at paragraph-22 of the judgment have virtually affected the case of the Appellant in the appeal that is pending in respect of the specific performance of the suit and, therefore, the Appellant is seriously prejudiced from the observations made by the lower appellate court in respect of the agreement for sale Ex.D-3. As such, the appeal be allowed and the matter be remitted to the lower appellate court to reconsider the case of the parties and in respect of Ex.D-3, the agreement for sale, the Appellant also be given opportunity to place further evidence.

It is also argued by the learned Counsel for the Appellant that the Plaintiff has no locus standi to file the suit and as per the agreement for sale Ex.D-3, Defendants-2 to 5, being the children of the Plaintiff, have agreed to sell the suit property to the Appellant. As such, the findings of the courts below on Ex.D-3, without there being a specific issue raised in respect of the agreement for sale, cannot be sustained in law. The courts below also erred in not properly interpreting the documents Exs.D-2 and D-3.

So far as the revision petition is concerned, the submission made is that, though the trial court had decreed the suit of the Plaintiff, no direction for drawing up of the preliminary decree was given and secondly, the lower appellate court, while dismissing the appeal filed by the Appellant herein, had given three months'' time for handing over Rs. 10,000/- mortgage amount and, without seeking the time extension and without moving the lower appellate court, the Plaintiff went before the executing court and deposited the amount after expiry of the three months and the trial court could not have accepted the amount in such circumstances, more so when the order was passed by the lower appellate court. Therefore, the revision petition is filed challenging the order passed on 24.12.2005 in Execution Case No. 21/2005.

On the other hand, the learned Counsel for the Respondents supported the judgments of the courts below by submitting that, both the courts have recorded concurrent findings on facts and, after referring to the evidence on record and the reasoning given by the courts below, it is submitted by him that no perversity of finding can be found in the judgments of the courts below and both the courts have gone through the entire evidence and the Appellant herein also took the risk of leading evidence in respect of Ex.D-3 agreement for sale by examining the scribe and other witnesses and, apart from leading evidence in respect of Ex.D-3, the Appellant also took the stand of he being the owner of the suit property by way of adverse possession.

Further it is contended by him that the execution of the mortgage deed was not disputed by the Appellant before the courts below. Thus, when the Appellant took the risk of leading evidence in respect of Ex.D-3 in regard to which the lower appellate court also had raised a point for consideration, the Appellant cannot now be permitted to say that the findings recorded by the courts below on Ex.D-3 affects the Appellant merely because the Appellant has filed a suit for specific performance. In this connection, it is also submitted that the suit was filed by the Appellant only during the pendency of the second appeal before this Court in the year 2009, long after the judgment of the trial court and even long after the judgment of the lower appellate court. Under these circumstances, this Court in this appeal, cannot find fault with the findings recorded even in respect of Ex.D-3.

As far as the locus standi of the Plaintiff to file the suit is concerned, the learned Counsel argued that it is a settled law that, even a co-owner can also seek redemption of the mortgage. Therefore, having regard to the scope of Section 100 of the Code of Civil Procedure, no interference is called for in this second appeal.

As far as the revision petition is concerned, the submission made is that the Plaintiff was directed to pay the Appellant the mortgage money and the limitation for drawing up of the final decree will not begin until the deposit is made and, therefore, the application filed by the mortgagor within three years from the date of deposit cannot be held to be time barred. Relying on the Apex court decision in the case of Achaldas Durgaji Oswal (Dead) through Lrs. Vs. Ramvilas Gangabisan Heda (Dead) through Lrs. and Others, , the submission made is that, no fault can be found with the order passed by the executing court. Therefore, the revision petition be dismissed.

Having thus heard both sides, the substantial questions of law raised for consideration are answered hereunder.

So far as the first question of law that is raised for consideration is concerned, Ex.D-2 is the registered mortgage deed and it is clear from the judgments of the courts below that no dispute is there between the parties with regard to the execution of the mortgage deed Ex.D-2. The learned judge of the lower appellate court has observed in the course of his judgment while dealing with point-(i) that even as per the case of the Appellant herein, Ex.D-2 is the original mortgage deed executed by Defendants-2 to 5 in favour of the first Defendant for Rs. 10,000/-. The further observation of the lower appellate court on points-(i) and (ii) is that, it is not disputed that Defendants-2 to 5 have executed the registered mortgage deed in favour of the first Defendant and, after having observed thus, the lower appellate court also considered the findings of the trial court on all issues and found that the trial court had committed no error in recording a finding in favour of the Plaintiff in respect of Ex.D-2.

As far as the possession of the suit property by the first Defendant is concerned, it is also a finding of fact of the courts below that possession was handed over tot he first Defendant pursuant to the mortgage Ex.D-2. But, the defence of the Appellant was that, he came upon possession of the suit property under agreement for sale Ex.D-3 and it is also her stand in the alternative that her possession was in the nature of adverse possession. Both the courts have refused to accept the defence of adverse possession.

The lower appellate court; also considered the agreement for sale Ex.D-3 upon which much reliance was placed by the Appellant herein and recorded a finding on point- (ii) to the effect that the Appellant herein has failed to prove the execution of Ex.D-3. The said finding is arrived at by the learned judge of the lower appellate court after carefully examining the entire evidence, oral and documentary. As such, the lower appellate court, being the final court on facts and having recorded a finding on the file of the acts with regard to Ex.D-3, as rightly submitted by the learned Counsel for the Respondents, this Court, in second appeal, cannot interfere with the finding of fact unless it is shown that the said finding is based on a perverse reading of the evidence on record. In the instant case, no such inference can be drawn as the lower appellate court has carefully considered the evidence of all the witnesses as well as the documents produced.

For the above reasons, the first question of law under consideration will have to be answered in the affirmative.

As far as the finding on Ex.D-3 agreement of sale is concerned, no doubt, the trial court did not frame any specific issue in regard to Ex.D-3. However, the pleadings on record and the evidence let in by both sides leaves no doubt as to the parties being fully aware of the contentious issues between them. In the light of the law laid down by this Court in the case of Gavigowda v. Kalegowda AIR 1996 Karn 131, when the parties knew the real dispute between them, no prejudice can be said to be caused to the parties by non-framing of an issue.

The Apex Court, in another decision in the case of Nedunuri Kameswaramma Vs. Sampati Subba Rao, , has observed that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case. The same is the principle laid down by a Division Bench of this Court in the case Siddegowda v. Siddegowda 1987(1) KL.J. 62, as well as the by the Apex Court in the case of Sayeda Akhtar Vs. Abdul Ahad, .

In the face of the above position in law and both the parties leading evidence in respect of Ex.D-3 and the Appellant, having taken the risk of receiving a finding on Ex.D-3, cannot now contend before this Court that the findings would greatly affect his suit. Moreover, there is force in the contention urged by the learned Counsel for the Respondents that the Appellant did not think of filing of the suit when the present suit v/as pending before the trial court nor any effort was made by the Appellant to file a suit based or the agreement for sale when the matter was pending before the lower appellate court. It is only after the second appeal was filed by the Appellant herein in the year 2005 and long after that, the Appellant has gone on to file a suit for specific performance. In other words, the Appellant, having received a finding against him, both in the trial court as well as in the lower appellate court and, therefore, woke up too late and though of filing a suit for specific performance. Under these circumstances, when the findings recorded by the courts below are based on evidence and there being no infirmity of the said findings being perverse in nature or contrary to the evidence on record, the question of the courts below committing an error in recording a finding on Ex.D-3 also does not arise. Accordingly, the second question of law stands answered.

Coming to the revision petition that is filed, the contention is that the lower appellate court had given three months time for the Plaintiff to pay the amount to the Appellant and after expiry of the said time limit, the Plaintiff approached the trial court and deposited the amount and, therefore, the order of the trial court in the execution proceedings is bad in law.

A careful reading of the operative portion of the judgment of the lower appellate court would make it clear that the Appellant herein was directed to execute the reconveyance deed and hand over possession to the Plaintiff within three months from the date of order and, after receiving the mortgage amount of Rs. 10,000/-. If the time limit is to be read as the time specified for payment of the amount of Rs. 10,000/-, then, there would have been no necessity for the lower appellate court to say in the operative portion, after the period of three months being mentioned, that the Plaintiff can proceed to execute the registered reconveyance deed with due process of law. In other words, the spirit of the order is that the Appellant was directed to execute the reconveyance deed within three months after receiving the amount of Rs. 10,000/- failing which the Plaintiff was given the liberty to get the reconveyance deed executed in accordance with law. If this is the import of the operative portion of the order of the lower appellate court, I do not find any error being committed by the executing court in passing the impugned order dated 24.12.2005.

Apart from the above, it is also necessary to refer to the Apex Court decision in the case reported in Achaldas Durgaji Oswal (Dead) through Lrs. Vs. Ramvilas Gangabisan Heda (Dead) through Lrs. and Others, , wherein it has been held that no limitation for drawing up of final decree begins to run until deposit is made and if the application seeking preparation of final decree is filed by the usufructuary mortgagor within a period of three months from the date of deposit, the limitation cannot come in the way.

In the light of the ''aforesaid position in law and also having regard to the operative portion of the order of the lower appellate court, I do not see any error being committed by the executing court also in passing the impugned order dated 24.12.2005.

For the above reasons, the appeal as well as the revision petition stand dismissed.