Back
2023 Supreme(Online)(Kar) 35285
- 1 -
RSA No. 6056 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.6056 OF 2011
BETWEEN:
SRI RAMESH BALASAHEB MANGASULI @ PATIL,
AGED ABOUT 48 YEARS,
OCC: AGRICULTURE,
R/AT. ATHANI-591304,
DIST: BELGAUM.
…APPELLANT
(BY SRI. ASHOK R. KALYANASHETTY)
AND:
1.
1.A
LATE PANDURANG VAMANARAO PATIL
SINCE DECEASED BY HIS LRS 1(A) TO 1 (D)
SMT. TARABAI W/O. PANDURANG PATIL,
AGE: MAJOR, OCC: HOUSEHOLD WORK
1.B
SHRI. VAMAN S/O. PANDURANG PATIL
AGE: MAJOR, OCC: AGRICULTURE.
1.C
1(C-1)
1(C-2)
LATE. KIRAN S/O. PANDURANG PATIL
SINCE DECEASED BY HIS LRS:
SMT. VANISHRI W/O LATE KIRAN PATIL,
AGED ABOUT 36 YEARS, OCC: HOUSE HOLD WORK
KUMAR VIRAJ S/O LATE KIRAN PATIL
AGED ABOUT 15 YEARS, STUDENT,
SAMREEN AYUB
DESHNUR
High Court of
Karnataka, Dharwad
- 2 -
RSA No. 6056 of 2011
A MINOR, REPRESENTED BY HIS MINOR GUARDIAN
AND MOTHER,
SMT. VANISHRI W/O KIRAN PATIL
AGED ABOUT 36 YEARS, OCC: HOUSEHOLD WORK
1(D) SMT.NANDA @ ARCHANA W/O. ARUN RAO KULKARNI
AGE: MAJOR, OCC: HOUSEHOLD WORK.
A(A) TO 1(D) ALL R/O. PATTAR GALLI, ATHANI-
591304,
DIST: BELGAUM
2
SHRI. VEERASANGAPPA ADIVEPPA KARVEKAR
AGED ABOUT 75 YEARS, OCC: BUSINESS,
R/O. ATHANI-591304, DIST: BELGAUM.
…RESPONDENTS
(BY SRI S.P. PATIL, ADVOCATE FOR R-1 (A & D);
SRI PRASAD R. SIDHANTI, ADVOCATE FOR R-1(B) (NOC);
SRI B.V. SOMAPUR, ADVOCATE FOR R-1(B);
R-1(C) (I) & R-2 – ARE SERVED;
R-1C(II) IS MINOR R/BY N/M/G R-1C(I))
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DATED 30-09-2011 PASSED IN
R.A.NO.06/1997 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT AT ATHANI, DISMISSING THE APPEAL,
FILED AGAINST THE JUDGMENT DATED 18-11-1996 AND THE
DECREE PASSED IN O.S.NO.125/1990 ON THE FILE OF THE
ADDL. MUNSIFF AND JMFC., ATHANI, DISMISSING THE SUIT
FILED FOR REDEMPTION OF MORTGAGE AND FOR MESNE
PROFITS ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
- 3 -
RSA No. 6056 of 2011
The present second appeal by the plaintiff
assailing the judgment and decree dated 30.09.2011 in
R.A.No.6/1997 on the file of the Court of Fast Track,
Athani, confirming the judgment and decree dated
18.11.1996 in O.S.No.125/1990 on the file of the
Additional Munsiff and JMFC, Athani.
2.
The plaintiff filed a suit for redemption of
mortgage, for possession and for mesne profits contending
that the plaintiff is the successor of the mortgagor of the
suit property and defendant No.1 is the successor of the
mortgagee. The particulars of the mortgage is that on
31.08.1933, the mortgagor by name Balasaheb Allappa
Magnasuli-the father of the plaintiff had mortgaged the
godown situated at Budhawarpeth in Athani bearing CTS
No.421 measuring 1060 square yards in favour of one
Vamanarao Pandurang Patil for Rs.800/-. It is stated that
the mortgaged property was under the ownership of father
of the plaintiff- Balasaheb and his three younger brothers
- 4 -
Paragouda, Rausaheb and Shidalingappa. The heirs of the
plaintiff’s father had some dispute over the property i.e.,
allotted to the plaintiff’s father and that a suit in
O.S.No.211/1980 filed by Suresh for partition and
separate possession against his brothers and mother on
the file of Munsiff Court, Athani came to be compromised
by a compromise decree on 09.02.1982 and the property
under the mortgage was allotted to the share of the
plaintiff’s father. It is stated that the father of the plaintiff
was in need of money and as such mortgaged the suit
property to the father of defendant No.1 and claims that
plaintiff is the successor of the mortgagor and sought to
redeem the said mortgage having right to recover the
same together with the mesne profits.
3.
Pursuant to the summons issued by the Trial
Court, the defendants appeared and defendant No.1 filed
written statement. It is stated that CTS No.421 of Athani
was mortgaged by the plaintiff’s father and his younger
brothers Paragouda, Rausaheb and Shidlingappa in favour
- 5 -
of Vamanarao Pandurang Patil-father of defendant No.1 on
31.08.1933 by a registered Mortgage Deed for Rs.800/-
and it was a usufructuary mortgage and the possession
was handed over to the mortgagee-Vamanarao Patil. As
per the Mortgage deed, the mortgagor shall redeem the
mortgaged property within nine years from the date of the
deed, after paying the mortgage-amount of Rs.800/- and
if the amount is not paid within the time, the mortgagee
shall enjoy the said property. It is stated that the original
mortgagor-Balappa and his three brothers did not exercise
the rights within the time and hence, the right, title and
interest
over
the
mortgaged
property
has
been
extinguished.
4.
It is further stated that the suit of the plaintiff is
barred by limitation since the commencement of new
Limitation Act, 1963 (hereinafter referred to as ‘the
Limitation Act’ for short), the redemption of mortgage is
30 years and the suit ought to have been filed within a
period of 7 years after the commencement of the new
- 6 -
Limitation Act, 1963. It is stated by the defendant that the
father of the plaintiff had clear knowledge about the
redemption of the suit property and did not seek
redemption of mortgage on time and as such, Allappa-the
plaintiff has lost his right to redeem the property. It is
stated that defendant No.1 had given an application to
City Survey, Athani to enter his name as owner on
22.07.1983 and in the said proceedings, the present
plaintiff was one of the respondent along with other
mortgagors and the application of defendant No.1 was
allowed in part. It is stated that in the said proceeding,
defendant No.1 has rightly contended that he became
absolute owner of the suit property since the plaintiff and
other mortgagor have failed to redeem the suit property in
time, despite the fact that CTS appeal was disposed of in
the year 1987, the plaintiff has filed the present suit for
redemption of mortgage only in the year 1990 and sought
for dismissal of the suit
