IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR FIRST APPEAL No.1870/2005 BETWEEN:
1. SMT. MANCHAMMA AGED ABOUT 67 YEARS 2. VEERABHADRA, AGED ABOUT 52 YEARS 3. VEERA, AGED ABOUT 47 YEARS 4. VEERABHADRA, AGED ABOUT 43 YEARS, 5. SMT. MANCHAMMA AGED ABOUT 42 YEARS, 6. SWAMY AGED ABOUT 32 YEARS APPELLANT No.1 IS THE WIFE AND APPELLANTS NO.2 TO 6 ARE THE CHILDREN OF LATE CHIKKAVEERA. ALL ARE RESIDENTS OF SOMESHWARAPURA, VARUNA HOBLI, MYSORE TALUK 571 001 …APPELLANTS (BY SRI P NATARAJU , ADVOCATE) AND:
1. CHAMUNDAPPA, AGED ABOUT 72 YEARS 2. LINGANNA, AGED ABOUT 67 YEARS 3. VEERANNA, AGED ABOUT 65 YEARS ALL ARE SON’S OF LATE APPAJAPPA RESIDENTS OF BASALLI HUNDI VARUNA HOBLI, MYSORE TALUK 571 001 …RESPONDENTS (RESPONDENTS NO.1, 2 AND 3 SERVED, UNREPRESENTED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 03.08.2005 PASSED IN O.S.NO.476/98 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.), MYSORE, DISMISSINNG THE SUIT FOR DECLARATION.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appeal is directed against the judgment and decree passed in O.S.No.476/1998 dated 3.8.2005 by the Prl. Civil Judge (Sr.Dn.), Mysuru, wherein the suit of the plaintiffs/appellants came to be dismissed.
2. The respondents are served. Neither they have contested the matter nor represented their case.
3. In order to avoid confusion and overlapping, the parties are referred in accordance with their ranking in the trial Court.
4. The case of the plaintiffs in O.S.No.476/1998 before the trial Court as could be seen from the plaint averments is that, the suit is filed for declaration to declare that the recording of the khata in the name of the defendants pertaining to the suit schedule property is illegal and not binding upon them and also declare that they are the owners and in possession of the suit schedule property and for mesne profits.
5. It is the case of the plaintiffs that the suit schedule property measuring 3 acres 10 guntas was originally belonged to one Smt. Madi, who is the grand mother of the plaintiffs No.2 to 6 and one Chikkaveera, husband of plaintiff No.1 and father of plaintiffs No.2 to 6. Both Chikkaveera and Madi are no more. Plaintiffs are their legal heirs. Chikkaveera had mortgaged the entire property in favour of one Appajappa, father of the defendants under a registered mortgage deed dated 10.10.1955. In order to adjust the mortgage debt, it was agreed between the parties that a portion of the total property i.e., 2 acres of land was sold in favour of Appajappa by Chikkaveera, his father along with 2nd plaintiff on 31.5.1957. All the defendants were put in exclusive possession of two acres of land in sy.No.122/2 and the remaining land continued in possession of the plaintiffs No.2 to 6.
6. Thereafter, the defendants have got the khata and other revenue records of the suit schedule property in their favour by suppressing the rights of the plaintiffs/appellants. In this connection, the plaintiffs have produced Ex.P.1- mutation register and Ex.P.2 to 5-RTC extracts.
7. Defendants contested the case and filed their written statement contending that their father purchased the remaining 1 acre 10 guntas from the father of plaintiffs Nos2 to 6 under registered Sale Deed dated 17.7.1961.
8. The learned trial judge dismissed the suit on the ground that the related documents are not produced before the Court to show that the khata of the suit schedule land measuring 3 acres 13 guntas was standing in the name of their grand mother Smt. Madi and that as the plaintiffs have not placed the mortgage deed dated 10.10.1955 or the registered sale deed dated 31.5.1957. The said judgment is challenged by the plaintiffs in this appeal.
9. Learned counsel for the appellants would submit that the defendants have admitted that the suit schedule land survey number has been phoded as 122/1 and 122/2. The defendants have filed their written statement, wherein they have denied the claim of the plaintiffs, but not chosen to adduce either oral or documentary evidence. They remained absent before the trial court and this Court as well. Hence prays for allowing this appeal.
10. The point that arises for consideration of this Court is:
“Whether the appellants have proved the execution of the registered sale deed dated 31.5.1957 by the father of the plaintiffs in favour of the father of the defendants as admitted by the plaintiffs?
11. It is contended that in the sale deed dated 31.5.1957, the plaintiffs and defendants came to consensus that mortgage money is a sort of consideration for the sale of land to an extent of 2 acres out of the total property in sy.No.122. Thus, the value of 2 acres of property was considered as mortgage money and redemption of the mortgage. The plaintiffs have not produced any documents or corroborative materials insofar as this understanding is concerned. Further no materials are produced to show that the consideration was in respect of execution of the sale deed in favour of the defendants to an extent of 2 acres and no documents were also produced in respect of the confirmation of the sale in favour of the plaintiff in respect of the remaining land of 1 acres 23 guntas, which is mentioned in the suit schedule.
12. In the context and circumstances of the case, the relief which a person can ask before the Court is to identify the rights shall be those which have been already vested in his name, but denied by the adverse papers.
13. Further, the defendant cannot improve the strength of the case which otherwise is substantially defective. The defendant either by remaining exparte or pleading in favour of the plaintiff cannot add weightage to the case. The Court cannot be a platform for creation of rights which otherwise did not exist. It could be understood that mortgage deed dated 10.10.1955 and regarding the period of limitation for redeeming the mortgage, there is no whisper. However, the understanding of sale of 2 acres is pleaded without documents. Thus, the circumstances are not as per the law and in favour of the plaintiffs and whatever the claim by the plaintiffs is through oral understanding.
Hence, I do not find any infirmity or illegality in the judgment and decree passed by the learned trial judge. The appeal deserves to be rejected. Accordingly, it is dismissed.
Sd/- JUDGE Psg*