RSA

No.7153/2010

is

filed

by

the

defendant

in

O.S.No.553/1992 on the file of the Principal Civil Judge

(Jr.Dn.), Vijayapura challenging the decree dated 04.07.1998

passed therein and the confirming judgment and decree dated

17.12.2009 passed by II Addl. Civil Judge (Sr.Dn.), Bijapur in

R.A.No.87/1998.

RSA

No.7154/2010

is

filed

by

the

legal

representatives of plaintiff in O.S.No.286/1993 on the file of the

Principal Civil Judge (Jr.Dn.), Vijayapura dismissing the suit for

specific performance as well as the confirming judgment and

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decree dated 17.12.2009 passed by the II Addl. Civil Judge

(Sr.Dn.), Bijapur in R.A.No.89/1998.

The parties shall henceforth be referred to as

brother

of

mortgagor

and

mortgagee.

The

plaintiff

in

O.S.No.553/1992 was the brother of mortgagor while the

plaintiff in O.S.No.286/1993 was the mortgagee.

The suit in O.S.No.553/1992 was filed by brother of

mortgagor for redemption of the mortgage dated 02.05.1972

executed by his elder brother in favour of the mortgagee

mortgaging suit schedule properties for a sum of Rs.1,000/-.

The period of mortgage was fixed at 10 years and the

possession of the property was delivered to the mortgagee and

it was agreed that after the money was paid, the possession of

the suit property would be re-delivered back in favour of the

mortgagor and his brother. The brother of mortgagor claimed

that after the mortgage, his elder brother died and he being the

head of the family called upon the mortgagee to receive the

mortgage money and redeem the mortgage. In that regard, he

caused a notice dated 11.11.1992 to the mortgagee. Though

the notice was served to the mortgagee, he did not reply to the

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same, which forced the brother of mortgagor to seek

redemption of the mortgage in O.S.No.553/1992.

The mortgagee entered appearance and contested

the suit. He contended that after the mortgage was executed,

the brother of mortgagor and his brother Narayan questioned

the mortgager as to how he could execute the mortgage

without their permission and therefore, the mortgage deed was

valid only to the extent of share of the elder brother namely,

Bhimsen. Thereafter, there purportedly was a settlement in the

village, in terms of which, 11 acres 9 guntas on the northern

side of Sy.No.45/2 was given to the possession of the

mortgagee while the remaining was cultivated by a tenant who

had filed Form No.7. The mortgagee claimed that the tenant

named Sri. Ramappa Girimallappa Hudedmani was granted

occupancy right. He contended that the land bearing

Sy.No.46/1 was also allowed to be cultivated by Sri. Namadeo

who also filed an application in Form N.7 before the Tribunal.

The mortgagee claimed that he was in possession of 11 acres 9

guntas in Sy.No.45/2, 17 acres 4 guntas in Sy.No.47/1 being

the 1/3^rd share of the deceased Bhimsen who had executed the

mortgage. He further claimed that Bhimsen did not redeem the

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mortgaged property and later, he executed a sale agreement

dated 27.01.1973 agreeing to convey his 1/3^rd share for a total

sale consideration of Rs.5,000/- and executed an agreement of

sale which was duly registered. He received a sum of

Rs.1,000/- as part of the agreed sale consideration. He claimed

that the mortgagor did not claim redemption of the suit land

and therefore, the mortgagee did not opt for specific

performance of the agreement of sale dated 27.1.1973 and he

did not reply to the notice dated 11.11.1992 issued by the

mortgagor. He claimed that after receipt of legal notice, he

met the mortgagor and disclosed about the agreement of sale

executed by late Bhimsen. He contended that the mortgagor

was not at all in possession of the mortgaged property and

hence, the suit of the mortgagor was not maintainable and

prayed for dismissal of the suit.

6.

The suit in O.S.No.286/1993 was filed by the

mortgagee for specific performance of the agreement of sale

dated 27.01.1973 allegedly executed by Bhimsen in his favour.

This suit was contested by t