Karnataka High Court
Smt Laxmi Hengsu vs Narayana Moolya S/O Late Nokku Hengsu on 3 October, 2012
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE S. ABDUL NAZEER
REGULAR SECOND APPEAL No.2004/2010 (PAR)
AND MISC. CVL. No.4999/2011
BETWEEN :
1. Smt. Laxmi Hengsu
D/o. late Nokku Hengsu
W/o. Gopala Moolya
Aged about 76 years
R/a. Kalavaru Post
& Village, Via Bajpe
Mangalore 575 011
2. Sri. K. Jagannath
S/o. Smt. Lazmi Hengsu
Aged about 58 years
R/a. Krishnapura
Site No.123, Block - 6
Surathkal 575 020
3. Lalitha
D/o. Smt. Laxmi Hengsu
Aged about 53 years
R/o. 5th Block
Site No.100, Katipalla
Post: Surathkal 575 020
4. Smt. Varija
D/o. Smt. Laxmi Hengsu
W/o. Padmanabha Moolya
2
Aged about 50 years
5. Smt. Sulochani
D/o. Smt. Laxmi Hengsu
W/o. Thimmarayya Moolya
Aged about 48 years
6. Smt. Sundari
D/o. late Smt. Laxmi Hengsu
W/o. Srinivasa
Aged about 45 years
7. Rajeevi
D/o. Smt. Laxmi Hengsu
W/o. Rohidas
Aged about 43 years
Appellant Nos.4 to 7 are
R/a. Kalavaru Post and Village
Via Bajpe
Mangalore 575 011 ... APPELLANTS
(COMMON)
(By Sri: Hemanth Kumar G.M. Adv.
for Sri. A. Madhusudhana Rao, Adv. )
AND :
Narayana Moolya
S/o. late Nokku Hengsu
Since dead by his LRs.
1. Smt. Janaki @ Kamala
W/o. late Narayana Moolya
Aged about 66 years
2. Smt. Yamuna
W/o. Sundara
3
Aged about 43 years
3. Smt. Nalinakshi
W/o. Mahabala Kunder
Aged about 40 years
4. Sri. Pushparaj
S/o. late Narayana Moolya
Aged about 37 years
Respondent Nos.1 to 4
are r/a. Door No.1-17-231
4H, 24B, 3rd Cross Road
Landlinks Township
Derebail, Konchady
Mangalore 575 028
5. Smt. Devaki
W/o. Thimmappa Kulal
Aged about 46 years
Bhavya Chethan House
Site No.238, V Block
Krishnapura,Katipalla
Mangalore 575 030
6. Smt. Jayalakshmi
W/o. Srinivasa
Aged about 34 years
7. Sri. Purandara
S/o. late Narayana Moolya
Aged about 31 years
Respondent Nos.6 and 7
Are r/a. Co. Meenakshi
Door No.61, 3rd Cross Road
1st Main Road, J.C. Nagar
Mahalaxmipura
Bangalore 560 086
4
8. Smt. Janaki Hengsu
D/o. late Nokku Hengsu
W/o. late Chandu Moolya
Major
R/a. Kalavaru Post
& Village,Via Bajpe
Mangalore 575 011
9. Sri. Sanjeeva @ Sadananda
S/o. late Chandu Moolya
Major
R/a. Kalavaru Post
& Village,Via Bajpe
Mangalore 575 011 ... RESPONDENTS
(COMMON)
(By Sri:Shamanth Naik Adv.
for M/s.Indus Law, Advs. for R-1 to R-7
Sri. S.D.N. Prasad, Adv. for R-8 and R-9)
This RSA is filed under section 100 of CPC praying to
set aside the judgment and decree dated 13.7.2010 in R.A.
No.13/2006 on the file of the I Additional District Judge,
D.K., Mangalore, etc.
Misc. Cvl. No.4999/2011 is filed under Order 41 Rule
27 of CPC praying for producing additional documents, etc.
This appeal and Misc. Cvl. No. 4999/2011 coming on
for Reporting Settlement this day, the Court delivered the
following:
5
JUDGMENT
This appeal is directed against the judgment and decree in R.A No.13/2006 dated 13.7.2010 on the file of the First Additional District Judge, D.K., Mangalore, confirming the judgment and decree in O.S. No.51/1999 dated 21.4.2006 on the file of the Principal Civil Judge (Sr. Dn.) and CJM, Mangalore. The appellants are the plaintiffs in the suit and the respondents are the defendants.
2. The plaintiffs filed the above suit for partition and separate possession of the suit schedule property. The trial Court has dismissed the suit. The First Appellate Court has confirmed the said judgment and decree.
3. Learned Counsel for the parties submit that the matter has been amicably settled between the parties. They have filed an application for compromise under Order 23 Rule 3 of CPC, which is as under:
6" Compromise petition under Order 23 Rule 3 of the Code of Civil Procedure, 1908:
The parties in the above appeal submit as follows:
1. The appellants are the plaintiffs in O.S.No.51/19999, the appellants filed the said suit before the Court of the Principal Civil Judge (Sr. Dn.) and CJM against the respondents herein seeking for partition of their alleged share in the suit properties. The said suit came to be dismissed by the judgment dated 21.4.2006.
The plaintiff preferred an appeal in R.A. No.13/2006 before the Court of the 1st Additional District Judge, Dakshina Kannada, Mangalore. The said appeal came to be dismissed by the judgment dated 13.7.2012, against the dismissal, the present appeal is filed.
2. The appellants contended that the said occupancy rights in respect of the said property though had been granted in the name of defendant No.1 (since deceased) Narayana Moolya, the lands in question had been taken on lease jointly by the deceased 1st defendant and the appellant-1/plaintiff-1 and had consequently 7 upon death of the mother of the appellant No.1, they were entitled to a share. The appellant No.1/plaintiff No.1, defendant No.1 (since deceased) and defendant No.2/respondent No.8 are siblings. Defendant No.3/respondent No.9 is the son of defendant No.2/respondent No.8. The deceased 1st defendant had contended that the suit properties are his absolute properties, that he has cultivated the properties as a tenant in his individual right. As stated above, the trial Court and the Appellate Court rejected the claims of the plaintiff.
3. During the pendency of the proceedings, the suit properties came to be acquired by the Karnataka Industrial Areas Development Board (KIADB), compensation in respect of such acquisition is payable by KIADB and Mangalore Refineries Pvt. Ltd. (MRPL). No compensation has been drawn by LRs. of deceased defendant No.1, i.e., respondents 1 to 7 in this appeal.
4. At the intervention of well wishers and elders, to avoid protracted litigation and with a view to have peace amongst the family members and relatives, the parties have arrived an 8 amicable settlement of all disputes. The terms of the settlements are set out below:
a) The appellants as well as respondents 8 and 9 irrevocably acknowledge and accept that the suit properties were the absolute properties of deceased defendant No.1, were his self acquired properties and give up and withdraw all claims made in the suit and elsewhere.
b) In view of the above affirmation and in consideration of the appellants having agreed to amicably settle and withdraw their claims, the respondents 1 to 7 herein have agreed that out of the compensation payable by KIADB for the acquisition of the suit properties which are described for convenience in the schedule below, that in all a sum of Rs.8,00,000/- (Rupees Eight Lakhs only) shall be payable to respondents 8 and 9 put together. They are agreeable that the appellant and respondents 8 and 9 will respectively be entitled to approach the KIADB directly based on the terms of this compromise and seek for payment directly to them of the above amounts by KIADB from out of the compensation payable for the acquisition of the schedule properties and they shall have no objection for the KIADB for making such 9 payments to the appellants and respondents 8 and 9 of the sums indicated above directly to them respectively.
c) In consideration of the above, the appellants and respondents 8 and 9 have irrevocably agreed that after excluding the sum of 8,00,000/- payable to the appellants and the sum of Rs.8,00,000/- payable to respondents 8 and 9, all and any of the balance amounts available as compensation from KIADB and MRPL towards acquisition of the Schedule Properties shall belong absolutely to respondents 1 to 7 herein. They also irrevocably agree that respondent 1 to 7 shall be entitled on the basis of the terms of this compromise to obtain directly payment of the compromise amount from the KIADB and MRPL in respect of the schedule properties, excepting the sum of Rs.8,00,000/- payable to the appellants and Rs.8,00,000/- payable to the respondents 8 and 9.
d) The appellants and respondents 8 and 9 also agree that all claims made by them in Misc.
No.28/2011 pending before the Senior Civil Judge at Mangalore stand withdrawn and in any event the appellants and respondents are 10 indicated to file appropriate memo and seek for withdrawal of the said Miscellaneous petition within 10 days from the date of the compromise decree. They are also agreeable for the respondents 1 to 7 to present a copy of this compromise petition and independently seek for closure of the said proceedings.
e) The appellants and respondents 8 and 9 have also agreed not to in any manner interfere or object with withdrawal of appeals made by the respondent 1 to 7 in the manner indicated above.
f) The appellants also confirm that the amount of Rs.8,00,000/- payable to appellants together and the amount of Rs.8,00,000/- payable to respondents 8 and 9 together shall be in full and final settlement of all claims, disputes that they may have against the respondent No.1 to 7.
g) The parties have also agreed to bear their costs. "
4. Appellant No.2 is present before the Court. He is also the power of attorney holder of appellants Nos.1, 3 to
7. Respondent No.1 is present before the Court. She is 11 representing respondent Nos.2 to 5 as their power of attorney holder. Respondent Nos.6, 7 and respondent No.9 are also present before Court. Respondent No.9 is the power of attorney holder of respondent No.8. They have produced the copies of their power of attornies along with their application for compromise. The parties are identified by their respective learned Advocates.
5. Perusal of the application for compromise makes it clear that the parties and the learned Advocates have signed the same. The parties admit the execution of the compromise and also the contents therein. Having heard the learned Counsel for the parties, I am of the view that the compromise entered into between the parties is lawful, just and reasonable. Therefore, the appeal is disposed of in terms of the above compromise. The judgment and decrees impugned herein stand modified accordingly. No costs.
Draw the decree in the aforesaid terms.
126. In view disposal of the appeal as above, Misc. Cvl.
No.4999/2011, does not survive for consideration and it is accordingly dismissed.
Sd/-
JUDGE.
Cs/-