Naga Nafka @ Naganna vs Dinesh Kumar

Ajit J Gunjal

The defendant is in appeal questioning the judgment and decree passed by the learned Trial Judge granting the decree of the plaintiff-respondent for redemption of mortgage. The said judgment and decree is confirmed by the lower Appellate Court. As against the said concurrent finding the defendant is before this Court. On notice issued by this Court. Mr. D.R. Sundaresh. learned counsel has entered appearance for the plaintiff and after hearing both the counsel, I am of the view that no substantial question of law arises for consideration in this appeal and it is liable to be dismissed for the following reasons:

The facts in brief are that; the plaintiff is the absolute owner of the suit schedule property and mortgaged the property in favour of the defendant by way of self redeemable mortgage for Rs. 9,000/-. The mortgage deed is registered on 4.10.99. The period of mortgage is from 4.10.1999 to 4.10.2000. From the date of the mortgage period the defendant is in possession of the suit property. After the completion of the mortgage deed, the defendant was duty bound to deliver the vacant possession of the suit property to the plaintiff without receiving the mortgage amount. The said mortgage is also called ''ilibhogya''. The possession of the defendant over the suit property from 5.10.2000 is illegal. He is also liable to pay the damages to the plaintiff at Rs. . 1,000/- p.m. from 5.10.2000 to 5.2.2007. which would work out to Rs. 78,000/-. The defendant it appears had filed a suit in O.S. No. 5/2001 for relief of injunction against the present owner and also the present plaintiff. The suit was decreed directing the defendant No. 3 to take possession of the suit schedule property according to due process of law. Hence, the present suit is filed.

The defendant entered appearance filed written statement inter alia contending that the suit is not maintainable. He admits filing of the suit by him for permanent injunction insofar as the execution of the mortgage, he also denies the title of the plaintiff. A perusal of the written statement would disclose that it is a ease of general denial of the plaint averments.

During the course of trial, the plaintiff examined himself as PW1 and one more witness PW2 and got marked Exs. P1 to P6 Defendant examined himself as DW1 and one witness as DW2 and got marked Ex. D1.

The learned Trial Judge having regard to the evidence has decreed the suit holding that the plaintiff is the absolute owner of the suit property and the defendant had executed the self redeemable mortgage for a consideration of Rs. 9,000/- As observed, the same is confirmed by the Appellate Court.

Mr. T.A. Karumbaiah. learned counsel appearing for the defendant submits that there is an error committed by the learned Trial Judge while decreeing the suit inasmuch as the defendant has been directed to pay the damages from the date of execution of the sale deed and not from the date of execution of the mortgage. Hence, he submits that the judgment and decree warrants interference.

Mr. D.R. Sundaram., learned counsel appearing for the plaintiff-respondent supports the judgment and decree passed by both the Courts below. He submits that the damages payable would be Rs. . 1.000/- p.m. inasmuch as that was the claim.

I have perused the judgments and decrees passed by the Courts below.

Apparently, both the Courts below have come to a conclusion that the plaintiff is the absolute owner of the suit property and further that the defendant had executed the self-redeemable mortgage deed. That being a question of fact, the question of interfering with those finding does not arise. But however, insofar as the directing the defendant to pay the damages from the dace of sale deed appears to be incorrect inasmuch as the defendant is liable to pay damages to the plaintiff to an extent of Rs. . 100/- from 4.10.2000.

Mr. T.A. Karumbaiah, learned counsel appearing for the defendant submits that some time may be granted to the defendant to quit and deliver the vacant possession inasmuch as he has been in possession for over a period of close to 12 years.

Mr. D.R. Sundarani, learned counsel appearing for the plaintiff-respondent submits that he learned Trial Judge had granted only 90 days horn the date of decree. But however, defendant has continued to be in possession notwithstanding the decree granted by the learned Trial Judge.

Indeed, it would be a case of live and let live. It is a commercial property. The plaintiff is not going to reside there after the defendant vacates. They would certainly let it out to another tenant. Hence, in the circumstances, time is granted till 31.12.2011 to the defendant to quit and deliver the vacant possession.

Insofar as damages is concerned I am of the view that instead of determining the damages without there being any evidence in this regard there shall be an enquiry regarding mesne profits under Order 20 Rule 12 of Code of Civil Procedure.

With this observation, appeal stands dismissed. The necessary undertaking shall be filed by the defendant-appellant within four weeks. The grant of time is subject to this undertaking.