KARN420015422014

1 O.S.No.343/2014 (J.)

Presented on
: 15-09-2014
Registered on
: 15-09-2014
Decided on
: 13-01-2025
Duration
: 10 years, 3 months,
28 days
IN THE COURT OF THE PRINCIPAL CIVIL JUDGE AND
J.M.F.C, AT MAGADI.

Present:- Sri. Shrinivasa.K. R., B.A.L.,LL.M.,

Prl. Civil Judge & JMFC.,
Magadi.

Dated this the 13th day of January - 2025

O. S. No.343/2014

PLAINTIFFS : 1. Sri.B.R Premakuari

W/o Late.Narasimha Swamy
Aged about 52 years,

2. Smt.B.N.Vidya
D/o Late.Narasimha Swamy,
W/o Mr.J.S Ravi,
Aged about 28 years,

3. Sri.B.N.Ravi Shankar,
S/o Late.Narasimha Swamy,
Aged about 25 years,

4. MS.B.N.Chaitra
D/o Late.Narasimha Swamy,
Aged about 23 years,

All are R/at No.161,

2nd Cross, R.K.Garden,
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2 O.S.No.343/2014 (J.)

Devasandra New BEL Road,

R.M.V 2nd Stage,
Bangalore-560054.

( By Sri.C.D.P, Advocate)
// Versus //

DEFENDANTS: 1. The Sub Registrar

office of the Sub-Registrar Magadi,
Ramanagara District.

2. Sri.N.Siddachar
S/o Late.Narasimhachar,
Aged about 77 years,
R/at No.208
Dondrahalli, Sarjapur Road,
Carmellaram Post,
Bangalore-560035.

3. Smt.Gowramma
W/o Late.Srikantachar,
Aged about 65 years,
R/at Kaggere Village,
Gubbi Taluk, Tumkur District

4. Sri.Savandharaju Since by Lrs

4(a). Smt.Kanchana Priya

D/o Late.Savandharaju,
W/o Ganesh,
Aged about 40 years,

4(b).Smt.Deepa
D/o Late.Sandharaju,
W/o Prathap,
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3 O.S.No.343/2014 (J.)

Aged about 37 years,

Lrs 4(a, b) are R/at No.66,

Sowjanya Nilaya, 5th Cross,
2nd Main, Seenappa Layout,
C.V Raman Nagar Post,
Suddagunte Palya,
Near LRDE, Bangalore-560093.

(D1 is placed exparte)

(D2 & 4 dead)
(D2 represented by Sri.A.S.L., Advocate)
(D4 (a & b) absent)

Date of Institution of Suit : 15.09.2014

Nature of Suit : Declaration &

Permanent Injunction

Date of commencement of
recording of evidence : 12.12.2019

Date of which judgment was

Pronounced : 13.01.2025

Total Duration : Years Months Days

-10- -03- -28-

(SHRINIVASA.K.R)
Prl. Civil Judge & J.M.F.C.,
Magadi.
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4 O.S.No.343/2014 (J.)

JUDGMENT

The plaintiffs have filed this suit against the defendants

for the relief of declaration and permanent injunction,

declaring that the plaintiffs are the absolute owners and

possessor of suit schedule property.

Schedule ‘A’ property

All the piece and parcel of the agricultural land situated

in Sy.No.75, Gundigere Village, Kudur Hobli, Magadi Taluk,

measuring 1 acre 22 guntas and bounded as:-

East by : Lands belongs to Rudraiah,

West by : Thorehalli,

South by : Inamti lands of Shankaradevaru,

North by : Lands belongs to Shanaracharaya.

Schedule ‘B’ property

All the piece and parcel of the agricultural land situated

in Sy.No.38, Gundigere Village, Kudur Hobli, Magadi Taluk,

measuring 1 acre 22 guntas and bounded as:-

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5 O.S.No.343/2014 (J.)

East by : Lands belongs to Shamachar,

West by : Lands belongs to Shankaracharaya,

South by : The borders of Gundigere Village,

North by : Kodihalla.

2. The brief facts of the Plaintiff case are as follows:

The plaintiff No.1 is the wife of late Narasimhaswamy and

the plaintiff No.2, 3 and 4 are the children of plaintiff No.1

and late Narsimhaswamy. During the life time of

Narasimhaswamy, the defendant No.2, 3 and 4 who are the

cousin brothers had mutually entered into a lease/mortgage

deed dated 19.08.1985 and since the date of said deed, the

plaintiffs are in peaceful possession and enjoyment of the suit

schedule property. After the death of Narasimhaswamy, the

plaintiffs continued to be in peaceful possession and

enjoyment of suit schedule properties. The late

Narasimhaswamy had paid a sum of Rs.3,000/- which was

sale consideration amount to the defendants on 19.08.1985

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6 O.S.No.343/2014 (J.)

towards the execution of the said lease/mortgage deed. The

said late Narasimhaswamy with the help of his brother

Prabhakarachar and his wife Smt.Anasuya has been growing

crops from 1985 and the plaintiffs continue to cultivate the

land till date.

Further contended that, late Narasimhaswamy insisted

for registration of ‘A’ and ‘B’ schedule properties in his favour.

The defendant No.2, 3 and 4 promised that, they will register.

After the death of late Narasimhaswamy for about 1 or 2

months the defendants kept and now they have started to

harass his wife Smt.Anasuya and they are making hectic

efforts to dispossess the plaintiffs from ‘A’ and ‘B’ schedule

premise by using force, money power and political influence.

Plaintiffs lodged complaint against the defendants before the

jurisdictional police station. Hence, prays to decree the suit in

their favour.
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7 O.S.No.343/2014 (J.)

3. After service of suit summons on the defendants,

the defendant No.2 to 4 have appeared through their counsel

and filed written statement. The defendants in their written

statement denied the entire averments of the plaint and

further contended that, it is false that, the plaintiffs are in

actual peaceful possession and enjoyment of the suit schedule

properties since from 1985 without any interference either by

the defendants or by third parties. It is false that, the

mortgage/lease deed has been executed for the period of three

years and the plaintiffs have paid the entire sale consideration

amount to the defendants by on the alleged lease/mortgage

deed dated 19.08.1985.

Further contended that, the defendant No.2 has already

filed a suit in O.S.No.258/2014 against plaintiff No.1,

Prabhakar Char, Anusuya and Radhika and obtained an order

of injunction in respect of Sy.No.75 measuring to an extent of

1 are 22 guntas of Marasandra Village. The defendant No.2

along with other defendants are in peaceful possession and

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8 O.S.No.343/2014 (J.)

enjoyment of the suit schedule properties. On the basis of

alleged lease/mortgage deed dated 19.08.1985 the plaintiffs

cannot take advantage to enforce the alleged agreement as it is

unenforceable in the eye of law. The suit is barred by law of

limitation. Hence, prays to dismiss the suit.

4. Based on the above pleadings and documents

produced by the parties this Court framed the following :

ISSUES
1.Whether the plaintiffs prove that they are
the legal owners of suit ‘A’ and ‘B’ properties?

2.Whether the plaintiffs further prove their

possession over the suit properties?

3.Whether the plaintiffs further prove the

interference of defendants?

4.Whether the suit is barred by limitation?

5.Whether the plaintiffs are entitle for the

reliefs claimed ?

6.What order or Decree?

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9 O.S.No.343/2014 (J.)

5. The plaintiffs in order to prove their case, the

plaintiff No.1 examined as PW-1 and got marked 18

documents as Ex.P-1 to 18. On the other hand even though

sufficient opportunity the defendants not adduced evidence on

their behalf hence, the defendants evidence taken as nil.

6. Plaintiffs counsel filed written argument.

7. After having heard so and perusal of the records,

my findings on the above issues are as follows:

ISSUE No.1 : In the Negative.

ISSUE No.2 : In the Negative.
ISSUE No.3 : In the Negative.
ISSUE No.4 : In the Affirmative.
ISSUE No.5 : In the Negative.
ISSUE No.6 : As per final order
for the following :-

REASONS

8. Issue No.1 to 4:- These issues are inter linked with

each other, hence to avoid the repetition of facts and evidence

taken together for consideration.

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10 O.S.No.343/2014 (J.)

That the plaintiffs specifically pleaded that, the

defendants have executed motgage deed in favour of

Narsimhaswamy on 19.08.1985 and delivered the possession

of suit schedule properties. The said Narsimhaswamy insisted

the defendants to execute sale deed in his favour but the

defendants postpone the same. The said Narsimhaswamy has

paid entire sale consideration amount. The plaintiffs are in

possession over the suit schedule properties.

9. The plaintiffs in order to prove their case, the

plaintiff No.1 by name Premakumari examined as PW-1 by

filing chief-examination of affidavit reiterating the contents of

plaint and got marked documents on behalf of plaintiffs as

Ex.P-1 to 19. Ex.P-1 is the death certificate, Ex.P.2 to 6 are

the bills, Ex.P.7 and 8 are the RTC extracts, Ex.P.9 is the

mortgage deed dated 19.08.1985, Ex.P.10 and 11 are the bills,

Ex.P.12 to 19 are the photos and CD.

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10. At this juncture it is necessary to reiterate

Section 58 of Transfer Of Property Act.

58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-

money” and “mortgage-deed” defined.—

A mortgage is the transfer of an interest

in specific immovable property for the
purpose of securing the payment of
money advanced or to be advanced by
way of loan, an existing or future debt, or
the performance of an engagement which
may give rise to a pecuniary liability. The
transferor is called a mortgagor, the
transferee a mortgagee; the principal
money and interest of which payment is
secured for the time being are called the
mortgage-money, and the instrument (if
any) by which the transfer is effected is
called a mortgage-deed.

(a) Simple mortgage.—Where,

without delivering possession of the
mortgaged property, the mortgagor binds
himself personally to pay the mortgage-
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12 O.S.No.343/2014 (J.)

money, and agrees, expressly or

impliedly, that, in the event of his failing
to pay according to his contract, the
mortgagee shall have a right to cause the
mortgaged property to be sold and the
proceeds of sale to be applied, so far as
may be necessary, in payment of the
mortgage-money, the transaction is called
a simple mortgage and the mortgagee a
simple mortgagee.

(b) Mortgage by conditional sale.—

Where, the mortgagor ostensibly sells the
mortgaged property—on condition that on
default of payment of the mortgage-
money on a certain date the sale shall
become absolute, or on condition that on
such payment being made the sale shall
become void, or on condition that on
such payment being made the buyer
shall transfer the property to the
seller,the transaction is called mortgage
by conditional sale and the mortgagee a
mortgagee by conditional sale:Provided
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13 O.S.No.343/2014 (J.)

that no such transaction shall be deemed

to be a mortgage, unless the condition is
embodied in the document which effects
or purports to effect the sale.

(c) Usufructuary mortgage.—Where

the mortgagor delivers possessionor
expressly or by implication binds himself
to deliver possession of the mortgaged
property to the mortgagee, and
authorises him to retain such possession
until payment of the mortgage-money,
and to receive the rents and profits
accruing from the property or any part of
such rents and profits and to appropriate
the same in lieu of interest, or in
payment of the mortgage-money, or
partly in lieu of interest or partly in
payment of the mortgage-money, the
transaction is called an usufructuary
mortgage and the mortgagee an
usufructuary mortgagee.

(d) English mortgage.—Where the

mortgagor binds himself to repay the
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14 O.S.No.343/2014 (J.)

mortgage-money on a certain date, and

transfers the mortgaged property
absolutely to the mortgagee, but subject
to a proviso that he will re-transfer it to
the mortgagor upon payment of the
mortgage-money as agreed, the
transaction is called an English
mortgage.

(e) Mortgage by deposit of title-

deeds.—Where a person in any of the
following towns, namely, the towns of
Calcutta, Madras, and Bombay, and in
any other town which the State
Government concerned may, by
notification in the Official Gazette, specify
in this behalf, delivers to a creditor or his
agent documents of title to immovable
property, with intent to create a security
thereon, the transaction is called a
mortgage by deposit of title-deeds.

(f) Anomalous mortgage.—A

mortgage which is not a simple mortgage,
a mortgage by conditional sale, an
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15 O.S.No.343/2014 (J.)

usufructuary mortgage, an English

mortgage or a mortgage by deposit of
title-deeds within the meaning of this
section is called an anomalous mortgage.

As per Section 58 of Transfer Of Property Act, it

clearly shows that, the mortgage is transfer of interest in

specific immovable property for the propose of advancing

amount. I have carefully gone through Ex.P.9 which is the

mortgage deed dated 19.08.1995. On perusal of recital of

mortgage deed the description of property not clearly stated

and it is stated only an extent as 1 1/4 acre and 1 acre situated

at Guddigere and Marasandra but, the survey number of

property not stated and moreover the plaintiffs seeking the

relief of declaration of ownership as per said mortgage deed

and seeking direction to execute registered sale deed by the

defendant No.1. It is well settled principle that, on the basis of

mortgage deed the mortgagee will not get any right and title in

respect of mortgage property and all the rights and title of

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16 O.S.No.343/2014 (J.)

property will be remain with the mortgagor hence, the

mortgagee cannot seek the relief of declaration of ownership

and moreover the said mortgage is not conditional sale it is

only usfructory mortgage it means on the basis of said

mortgage deed, permitted the said Narsimhaswamy to be in

possession of property for a period of three years. Hence the

plaintiffs not entitled to seek the relief of execution of sale

deed in their favour as the said deed is not agreement of sale

or conditional sale.

11. At this juncture it is necessary to rely the

decision of Hon’ble Supreme Court reported in (2014) 9

SCC 185. Wherein the Hon’ble Supreme Court at para 22

held that,

“Para 22: A usufructuary mortgagee is not

entitled to file a suit for declaration that, he

had became an owner merely on the expire of

30 years from the date of the mortgage.”

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As already stated above in the present case also the

plaintiffs seeking declaration of ownership in respect of

usufructuary mortgage. Hence, the suit filed by the plaintiffs

is not maintainable. After completion of three years which is

fixed in the mortgage deed, the plaintiffs have to file suit for

fore closure of mortgage deed. But, the plaintiffs not taken

any steps to file suit within the period of limitation because,

the mortgage deed executed in the year 1985 and in the

mortgage deed period of mortgage mentioned only three years

and said period completed in the year 1988 hence, the suit

filed by the plaintiffs is barred by law of limitation. As per

Section 63 of Limitation Act, the limitation period for fore

closure of mortgage deed is three years from the date when the

money secured by the mortgagee becomes due.

12. At this juncture it is necessary to relay the

decision of Hon’ble Supreme Court of India reported in

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(2019) 6 SCC 82. Wherein the Hon’ble Supreme Court at

para 44 held that:

Para 44: In the suit for declaration of title

and possession, the respondent-plaintiffs could

succeeded only on the strength of their own title

and not on the weeknes of the case of the

appellate-defendants. The burden is on the

respondent-plaintiffs to establish their title to

the suit properties to show that, they are

entitled for a decree for declaration.

I have carefully gone through the decisions filed by the

plaintiffs. The plaintiffs filed decision in respect of adverse

possession. Hence, the decision relied by the plaintiffs is not

applicable to the present case as the plaintiffs not seeking the

relief of title on the basis of adverse possession. Accordingly,

I answer issue No.1 to 3 in the Negative and Issue No.4 in the

Affirmative.
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13. Issue No.5:- As already discussed above in issue

No.1 to 4, the plaintiffs have failed to established that, they

are the absolute owners and possessors of suit schedule

property by relevant documents and interference by the

defendants. Therefore the plaintiffs are certainly not entitled

for the relief sought in the plaint. Accordingly I answered issue

No.5 in the Negative.

14. Issue No.6:- In view of above discussions and

answers given to above issues, I proceed to pass the

following :

ORDER

The suit of the Plaintiffs is hereby dismissed

with cost.

Draw decree accordingly.

(Dictated to the Stenographer directly on computer, typed by her, revised and

corrected by me and then pronounced by me in the Open Court on this the 13th
day of January, 2025.)

(SHRINIVASA.K.R)
Prl. Civil Judge & J.M.F.C.,
Magadi.
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20 O.S.No.343/2014 (J.)

ANNEXURE
WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW-1 : Smt.B.R.Premakumari
W/o Late Narasimhaswamy.
PW-2 : Sri.Prabhakarachar
S/o Shankarachar.
PW-3 : Sri.Manjunath
S/o Mahadevaiah.

DOCUMENTS MARKED FOR PLAINTIFF:

Ex.P-1 : Death certificate.

Ex.P.2 to 6 : Bills.

Ex.P.7 & 8 : RTC extracts.

Ex.P.9 : Mortgage deed dated 19.08.1985.

Ex.P.10 & 11 : Bills.

Ex.P.12 to 19 : Photos and CD.

WITNESSES EXAMINED FOR THE DEFENDANTS:

-Nil-

DOCUMENTS MARKED FOR DEFENDANTS:

-Nil-

Prl. Civil Judge & J.M.F.C.,

Magadi.