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2012 Supreme(Kar) 625
High Court of Karnataka
H.S. KEMPANNA, J.
Samrathmal
Versus
Basavarajappa
Regular First Appeal No. 1082 of 2007
Decided on: 01-06-2012
For the Appellant:C.M. Nagabushana, P.V. Chandrashekar, Advocates.
For the Respondent:P.S. Manjunath, M/s. P. Nataraju Assts., Advocates.
Headnote:TRANSFER OF PROPERTY ACT, 1882 - Section 59: [H.S. Kempanna, J] Oral mortgage with delivery of possession - Mortgage for a period of five years - Refusal of the defendant to redeem the mortgage - Suit filed by the plaintiff seeking possession of the suit property and for mesne profits - Dismissal of suit - Title to the property of the plaintiff is not in dispute - Whether suit can be dismissed on the ground that the plaintiff failed to prove the mortgage transaction - Held, If the plaintiff cannot regain possession on the basis of the oral mortgage as it open for him to recover possession on the strength of his title.
Further, Plaintiff’s title to the property is not in dispute. It is admitted and accepted by the defendant. It is forfeited by the case of the defendant in stating that the plaintiff had entered into an agreement of sale to sell the suit schedule land. The defendant had failed to prove the agreement of sale. Therefore, from the material on record it can be safely held that the title to the suit schedule property of the plaintiff is admitted and accepted by the defendant and he is the owner of the same.
It is well settled that an oral mortgage is difficult to be proved in a Court of law. In the absence of the same, the material on record reveals that the title to the property of the plaintiff having not been disputed it has to be seen, whether despite he having failed to prove the mortgage, whether he is entitled to relief to the possession of the suit schedule property on the strength of title to the property is a question fro consideration.
A suit for possession is maintainable if the title is not in dispute. Therefore, in the facts and circumstances of the case plaintiff would be entitled to relief of possession. The Trial Court in this connection has erred in coming to a wrong conclusion that the plaintiff is not entitled to relief of possession after holding that both the plaintiff and the defendant have not proved their case of mortgage and sale agreement when title to the property is not disputed. It is the case of the plaintiff that after borrowing the amount of Rs. 2 lakhs he had put the defendant has not disputed that he having been put in possession of suit schedule property. In view of the same, the material on record reveals that the defendant is in possession of the suit schedule property. Therefore, the plaintiff would be entitled to possession of suit schedule property.
1. This appeal is by the plaintiff challenging the judgment and decree of the trial Court dismissing his suit filed for possession and for mesne profits.
2. For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the suit before the Court below.
3. The plaintiff instituted suit against the defendant seeking for possession of the suit schedule property and for mesne profits from the date of deposit of the mortgage amount with costs.
4. The suit schedule property is the land measuring 6 acres 8 guntas, 5 acres 27 guntas, 15 acres 12 guntas, in all 27 acres 7 guntas situated in Sy. Nos. 17, 18 and 19 respectively of Alonohally Mandal Panchayath, Chamalapura Village, Hampapura Hobli, H.D. Kote Taluk, Mysore District and land measuring 15 acres 28 guntas situated in Sy.Nos.10 and 15 of Chamalapur Village, Hampapura Hobli, H.D. Kote Taluk, Mysore District morefully described in the schedule appended to the plaint. (Herein after referred to as 'Suit Schedule Property' for short) It is the case of the plaintiff that the suit schedule property are agricultural lands. He acquired an extent of 27 acres 7 guntas by virtue of the order passed by the Land Tribunal, H.D. Kote in pursuance of which occupancy rights had been registered in his name. It is his further case that the other extent of 15 acres 28 guntas had been purchased by him from one Vanakalusetty alias Javaresetty under a registered sale deed and as such, he is absolute owner of the entire extent of suit schedule property measuring 42 acres 33 guntas situated at Chamalapura Village in H.D. Kote Taluk.
It is his further case that the defendant is permanent resident of Hampapura Hobli, H.D. Kote Taluk and he is his close friend. He was supporting him in cultivating schedule land. He is also a businessman at Mysore city and his family members are residing at Mysore. After some time, the plaintiff shifted to Chamalapura and was cultivating the entire lands. It is his further case that as he was unable to look-after the schedule land on account of his advanced age, he mortgaged the suit property in favour of the defendant and received a mortgage amount of Rs.2,00,000/- by mortgaging it for a period of five years. He handed over the possession of the entire suit schedule lands to the defendant in April, 1990. The mortgage period expired long back. Thereafter, he made several requests and demands to the defendant to receive the Mortgage amount of Rs.2,00,000/- and to hand over the suit schedule property in his favour. But the defendant did not comply with the same. Finally, he was constrained to issue a legal notice dated 01.08.1999 calling upon the defendant to receive the Mortgage amount of Rs.2,00,000/- and to hand over the suit schedule property to him, to which the defendant sent untenable reply.
It is his further case that the suit schedule property is a fertile land. The defendant fraudulently and by misrepresenting the facts got the signatures of the plaintiff on Blank Stamp Papers which he believed to be a mortgage deed. But the plaintiff has not executed any documents in favour of the defendant. The plaintiff is ready to pay the mortgage amount of Rs.2,00,000/- to the defendant. He is also entitle for mesne profits in respect of the suit schedule lands. It is also his case that the defendant has cut-off the standing trees, the value of which is Rs.25,000/-, which amount he is also entitled to from the defendant and to forfeit the said amount in the mortgage amount due by him to the defendant. Therefore he filed the suit for the relief of possession and mesne profits from the defendant. After service of suit summons the defendant appeared and contested the suit by filing statement of objections. It was contended that the suit is not maintainable as no particulars are given in the plaint as required under the provisions of Order 34 of CPC and under Form No.46 in Appendix-A of the CPC. It was further contended tha
