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Karnataka High Court
ALLABAKSH - Appellant
Versus
MOHAMMED HUSSAIN - Respondent
Decided On : 09-11-95
R.S.A. : 780 of 1984
mortgage - redemption - 12 years adverse possession - [Article 65 of the Limitation Act] - The court held that the possession of the defendant became adverse to the plaintiff, and the defendant perfected his title to the property in suit by adverse possession. The possession of the defendant under the illegal transfer was adverse from the very inception, and the defendant's possession under the illegal transfer was adverse from the date of the transfer. The possession of a person having no title in the property under an invalid deed of transfer becomes prima facie adverse to that of the owner, and when he continues in possession for a period of more than 12 years, title by adverse possession accrues in favor of that person as owner.
Fact of the Case:
The plaintiff filed a suit for redemption of a mortgaged property, alleging that his father had mortgaged the property with the defendant. The defendant denied the mortgage and claimed to have acquired the property through a sale transaction with the plaintiff's father.
Finding of the Court:
The trial court and lower appellate court held that the defendant had perfected his title to the property by adverse possession, as the possession of the defendant was adverse from the very inception and continued for more than 12 years.
Issues: The issues included proving the existence of the mortgage, the agreement for the defendant to pay municipal taxes, issuance of a notice for redemption, and the defendant's claim of adverse possession and sale of the property to a third party.
Ratio Decidendi: The possession of the defendant under the illegal transfer was adverse from the very inception, and the defendant's possession under the illegal transfer was adverse from the date of the transfer. The possession of a person having no title in the property under an invalid deed of transfer becomes prima facie adverse to that of the owner, and when he continues in possession for a period of more than 12 years, title by adverse possession accrues in favor of that person as owner.
Final Decision: The second appeal was dismissed, and the judgments and decrees of the courts below were confirmed.
( 1 ) THIS is plaintiffs second appeal from the judgment and decree dated 7-8-1983, delivered by the civil judge, gulbarga, in regular appeal (civil) No. 216 of 1981, which had also been preferred by the plaintiff-appellant, challenging the judgment and decree dated 15-9-1981, delivered by the munsiff, chittapur, in original suit i. e. , o. s. No. 74 of 1978, dismissing the plaintiffs first civil (regular) appeal affirming the judgment and decree of the trial court dismissing the plaintiffs claim in the suit for redemption of mortgage.
( 2 ) THE facts of the case in brief are that the plaintiff appellant filed the suit for redemption of the suit property alleging that his father had mortgaged the property in suit with the 1st defendant-respondent 1, with possession for a mortgage consideration i. e. , loan amount of Rs. 500/-, sometimes in the year 1960, after executing a deed, on a stamp paper with a condition that whenever mortgage amount is paid, the 1st defendant-respondent 1, is to deliver the vacant possession of the suit property, as per terms of mortgage deed. It was provided that defendant 1, would pay the municipal taxes and enjoy the property and there will be no interest on the mortgage sum. Plaintiff alleged that his father died some 7 years prior to the date of the suit. The plaintiff further alleged that plaintiff made several requests and demands to the defendant-respondent 1, to deliver the vacant possession of the property, but, the 1st defendant did not accede to the request and thereafter, plaintiff got a notice issued for being served on defendant 1, to the same effect calling upon the 1st defendant-respondent 1, to hand over vacant possession of the suit property and to receive the mortgage amount, that is, Rs. 500/ -. The plaintiff alleged that he did neither receive any reply nor that notice was complied with. Plaintiff has further alleged that defendant 1, has executed a sale deed in favour of 2nd defendant-respondent 2, that sale deed is illegal and not binding on the plaintiff-appellant. The plaintiff with these facts and allegations filed the suit, giving rise to this appeal, for redemption and for direction to the defendants-respondents to deliver the possession of the mortgage property and to receive the sum of Rs. 500/ -.
( 3 ) THAT the defendants-respondents put in appearance filed the written statement and contested the plaintiffs claim. The defendants denied the plaintiffs case to the effect that the property in dispute was mortgaged by the father of the plaintiff-appellant for a sum of Rs. 500/- as loan. He denied that there was any such agreement as alleged in the plaint to return the property. The defendant 1, denied the receipt of the notice alleged to have been sent by the plaintiff. The defendant 1, asserted that there being no transaction of mortgage entered into between the plaintiffs father and the contesting 1st defendant, no question of decree for redelivery of possession of the property in suit or of receiving the sum of Rs. 500/- arises. The defendant further, alleged that the father of the plaintiff shaik mohiudeen, agreed to sell the property in question for a sale consideration of Rs. 1,700/- in favour of the defendant-respondent 1. The defendants asserted in the written statement that on 29-9-1955, under the agreement to sell, a sum of Rs. 700/- was paid in advance to the plaintiffs father as earnest money and for the same, he executed a receipt dated 29-9-1955. There, it was also agreed that the balance sum of Rs. 1,000/- shall be paid towards the transaction of sale of the property in dispute within one year and thereafter, plaintiffs father would executed the needed sale deed. The defendants further averred that on september 2nd, 1956, a sum of Rs. 1,000/- was paid by 1st defendant-respondent 1, to the plaintiffs father, who has executed a document of sale on the said date, that is, 2-9-1956, in favour of the 1st defendant-respondent 1, but, due to illness
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