DECREE

DATED

13.04.2015 PASSED IN O.S. NO.159/2008 ON THE FILE OF

THE CIVIL JUDGE AND JMFC AT HUNSUR.

THIS REGULAR SECOND APPEAL COMING ON FOR

ADMISSION THIS DAY, THE COURT DELIVERED THE

FOLLOWING:

JUDGMENT

The captioned Second Appeal is filed by the

unsuccessful defendant who has questioned the concurrent

findings of the Courts below in decreeing the suit for

redemption of mortgage.

2.

For the sake of convenience, the parties are referred

to as per their rank before the Trial Court.

3.

Plaintiffs instituted a suit seeking redemption of

mortgage deed dated 30.05.1994. Plaintiffs claimed that

the subject matter of the suit is an agricultural land in

Sy.No.78 measuring 1 acre 09.08 guntas. Plaintiffs have

pleaded that for legal necessity, their predecessor was

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compelled to mortgage the suit land in Sy.No.78/2 in

favour of the defendant for a mortgage premium of

Rs.12,000/- through registered mortgaged deed dated

01.07.1994 for a period of 3 years. The present plaintiffs

who claim to be the legal heirs, have now filed the present

suit. Plaintiffs have also specifically pleaded in the present

suit that they had in fact filed a suit in O.S.No.61/2008

seeking same relief. However, plaintiffs contended that

since defendant assured that he would reconvey the

property by receiving a premium amount of Rs.12,000/-, a

memo was filed to withdraw the suit. However plaintiffs

pleaded that false assurance was given by the defendant

and based on his false assurance, plaintiffs bonafide

believing that defendant would reconvey the property,

withdrew the suit.

4.

Defendant

on

receipt

of

summons,

tendered

appearance and filed written statement and specifically

contended that the present suit is hit by the doctrine of

resjudicata and therefore, prayed for dismissal of the suit.

4

Plaintiffs and defendant let in oral and documentary

evidence.

5.

The Trial Court having referred to the evidence on

record answered issue No.1 in the affirmative while issue

No.2 was answered in the negative. While examining issue

No.2, the Trial Court did not accept the defence set up by

the defendant. The Trial Court was of the view that

plaintiffs have laid a foundation and an explanation was

offered indicating as to why plaintiffs were compelled to

withdraw the earlier suit. It is in this background, the Trial

Court was of the view that doctrine of resjudicata is not

applicable to the present case on hand. Having answered

issue No.2 in the negative, the Trial Court has proceeded

to decree the suit by directing the defendant to redeem

the instrument dated 30.05.1994.

6.

Feeling aggrieved by the judgment and decree of the

Trial Court, defendant preferred an appeal before the

Appellate Court in R.A.No.90/2015. The Appellate Court

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having independently assessed oral and documentary

evidence, was also not inclined to entertain the defence set

up by the defendant. Having concurred with the findings of

the Trial Court, the Appellate Court has proceeded to

dismiss the appeal. These concurrent findings are under

challenge.

7.

Heard learned counsel appearing for the defendant

and learned counsel appearing for the plaintiffs. Perused

the concurrent findings recorded by the Courts below.

8.

The material on record clearly indicates that the

earlier suit in O.S.No.61/2008 was not decided on merits.

Defendant

is

banking

on

a

memo

submitted

in

O.S.No.61/2008. Both the Courts have concurrently held

that plaintiffs have withdrawn the suit as defendant

assured that he will redeem the property. Plaintiffs in the

present suit have contended that having given an

assurance, defendant however conveniently retracted from

his promise and declined to execute the document by

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receiving

the

premium

amount

covered

under

the

registered mortgage deed.

[

9.

It is in this background, plaintiff was compelled to

file the present suit. The principles of resjudicata as stated

in Section 11 of CPC is applicable provided there is finality

to the litigation in the previous suit. If the actual