Karnataka High Court
Smt.Eliza S.M.Cardoza Since Deceased ... vs Mr. L.D.Ballal on 3 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1322
Bench: Raghvendra S.Chauhan, B M Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF OCTOBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT APPEAL NO. 5870/2013 (LR)
BETWEEN:
1. SMT. ELIZA S. M. CARDOZA
SINCE DEAD BY LR'S APPELLANTS 2 TO 4
2. MR. VALERIAN CARDOZA
AGED ABOUT 43 YEARS,
S/O. LATE S. M. CARDOZA,
MOODBIDRI-574 222.
3. MR. RONALD CARDOZA
AGED ABOUT 40 YEARS,
S/O. LATE S. M. CARDOZA,
MOODBIDRI-574 222.
4. MR. HELARD CARDOZA
AGED ABOUT 30 YEARS,
S/O. LATE S. M. CARDOZA,
MOODBIDRI-574 222.
... APPELLANTS
(BY SRI B. Y. ACHAR, ADV.)
AND
1. MR. L. D. BALLAL
AGED ABOUT 80 YEARS,
2
ADVOCATE,
'PAVITHRA', DANDAKERI, YEYYADI,
MANGALURU-575 004.
2. THE STATE OF KARNATAKA
BY ITS SECRETARY TO REVENUE DEPARTMENT
VIDHANA SOUDHA,
BENGALURU-560 001.
3. THE LAND TRIBUNAL
MOODBIDRI,
MANGALURU TALUK,
BY ITS CHAIRMAN,
MOODBIDRI-574 227,
MANGALURU TALUK.
4. MRS. SIRLINA
AGED ABOUT 41 YEARS,
W/O. LATE JOHN CARDOZA,
MAJALU HOUSE,
KARKALA-574 104,
NOW RESIDING AT
MOODBIDRI-574 227.
5. SRI ANIL
AGED ABOUT 26 YEARS,
S/O. LATE JOHN CARDOZA,
MAJALU HOUSE,
RADI PRANTHYA VILLAGE,
KARKALA TALUK-574 104.
6. MRS. ANSELA
AGED ABOUT 23 YEARS,
D/O. LATE JOHN CARDOZA,
MAJALU HOUSE,
RADI PRANTHYA VILLAGE,
KARKALA TALUK-574 104.
7. MR. SUBHASHCHANDRA BALLAL
S/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI,
AGED 68 YEARS,
R/AT 'PADMASHREE NILAYA',
OPP: SUVARNA COMPLEX,
3
MANGALORE ROAD,
KARKALA-574 104.
8. SMT. SUMATHI
D/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI,
W/O. RAVIRAJ, AGED 66 YEARS,
R/AT 'SAVITHA NILAYA',
POST: MANJALTHAR, HUKRATTE, MALA,
KARKALA 574 123.
9. SUNITHA
D/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI, AGED 64 YEARS,
RESIDING AT 'SHANTHI NILAYA',
POST: DOOPADAKATTE, NITTE VILLAGE,
KARKALA-574 110.
10. MR. AJITH KUMAR
S/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI, AGED 62 YEARS,
RESIDING AT 'PADMA NILAYA',
POST DOOPADAKATTE,
NITTE VILLAGE,
KARKALA-574 110.
11. MR. SURENDRA KUMAR
S/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI, AGED 62 YEARS,
RESIDING AT 'PADMA NILAYA',
POST DOOPADAKATTE,
NITTE VILLAGE, KARKALA-574 110.
12. MR. ARUN SEN
S/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI,
AGED 56 YEARS
RESIDING AT 'PADMA NILAYA',
POST DOOPADAKATTE,
NITTE VILLAGE, KARKALA-574 110.
13. MR. DINESH KUMAR
S/O. LATE A. BHOJARAJ AJRI AND
SMT. DHANAVATHI, AGED 47 YEARS,
4
'SHREE PADMA', TANTRI LANE,
POST: ASHOKANAGAR, KOTTARA,
MANGALURU-575 006.
14. MR. VRASHABHA KUMAR
S/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI
AGED 60 YEARS,
R/AT 'SHANTHI NILAYA',
POST: DOOPADAKATTE, NITTE VILLAGE,
KARKALA-574 110.
RESPONDENT NOS.7 TO 13 ARE REPRESENTED BY
THEIR GENERAL POWER OF ATTORNEY HOLDER
RESPONDENT NO.14
MR. VRASHABHAKUMAR,
S/O. LATE A. BHOJARAJA AJRI AND
SMT. DHANAVATHI, AGED 60 YEARS,
RESIDING AT 'SHANTHI NILAYA' ,
POST: DOOPADAKATTE, NITTE VILLAGE,
KARKALA-574 110
15. MRS. MERY PINTO
D/O. LATE S. M. CARDOZA,
W/O. ALBAN ALBAN PINTO, AGED 59 YEARS,
RESIDING AT D.NO.3-131,
KUJUMBAIL HOUSE,
VALPADY VILLAGE-574 227,
MANGALURU TALUK.
16. MRS. GRACY FERNANDES
D/O LATE S. M.CARDOZA,
W/O. MATHIAS FERNANDES,
AGED 51 YEARS,
RESIDING AT D.NO.93(A),
MAJAL HOUSE,
KARIMANELU VILLAGE,
VENOOR-574 242
BELTHANGADY TALUK.
17. MRS. JACINTHA FERNANDES
D/O. LATE S. M.CARDOZA,
W/O. VINCENT MARTIN FERNANDEZ,
AGED 49 YEARS,
5
RESIDING AT D.NO.9-147/A, 'JOY MANSION',
BOGRUGUDDE ROAD, VIVEKANANDA NAGAR,
PRANTHYA VILLAGE, MOODBIDRI-574 242,
MANGALURU TALUK.
... RESPONDENTS
(BY SRI S. B. PAVIN, ADV. FOR R-1;
SRI S. S. MAHENDRA, AGA FOR R-2 AND R-3;
SRI K. SHASHIKANTH PRASAD, ADV. FOR R-7 TO R-17;
V/O DT: 9.12.2014 NOTICE TO R-5 AND R-6
ARE DISPENSED WITH; R-4 SERVED)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 28.08.2013 PASSED IN THE WRIT
PETITION NO.23620/2012 (LR).
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
RAGHVENDRA S. CHAUHAN J, DELIVERED THE FOLLOWING:
JUDGMENT
Mr. Valerian Cardoza, the appellant No.2, Mr. Ronald Cardoza, the appellant No.3, and Mr. Helard Cardoza, the appellant No.4, are present before this Court. They have submitted their Aadhar cards in order to establish their respective identities. They have also been identified by their learned counsel.
2. Mrs. Serlina, the respondent No.4, Mr. Anil, the respondent No.5, Mrs. Ansela, the respondent No.6, 6 Mr. Subhashchandra Ballal, the respondent No.7, Mrs. Sumathi, the respondent No.8, Ms. Sunitha, the respondent No.9, Mr. Ajith Kumar, the respondent No.10, Mr. Surendra Kumar, the respondent No.11, Mr. Arun Sen, the respondent No.12, Mr. Vrashabha Kumar, the respondent No.14, Mrs. Mery Pinto, the respondent No.15, Mrs. Gracy Fernandes, the respondent No.16, Mrs. Jacintha Fernandes, the respondent No.17, are also present before this Court. They have also submitted their Aadhar cards in order to establish their identities. They have also been identified by their learned counsel. Mr. Dinesh Kumar, the respondent No.13, is represented by his power of attorney holder, Mr. Vrashabha Kumar, the respondent No.14.
3. This writ appeal is filed against the order dated 28.08.2013 passed by a learned Single Judge in W.P.No.23620/2012. During the pendency of the writ appeal, the parties have entered into a compromise. Therefore, they 7 have filed a joint memo /compromise petition. According to the parties, they have agreed to the following conditions:
a. The order of the Land Tribunal, Karkala dated 31.12.1981 in TRL No.127/1981-82 may be confirmed in respect of following lands:
Sl. Village Sy. No. Extent
No A.C.
1 Pranthya 97-6C 3.68
2 Pranthya 212-2A (as per new 3.16
RTC Sy.No.212-2 -
2.60 cents and 212-3 -
0.56 cents)
b. The order of the Land Tribunal, Karkala
dated 31.12.1981 in TRL No.127/1981-82 may kindly be set aside in respect of following lands and it is further agreed by the parties that, Form No.7 Application filed by S.M.Cardoza in respect of the following lands may be rejected and the legal heirs of S. M. Cardoza namely Appellant Nos. 1, 2, 3, 4, and respondent Nos. 4 to 6 and No.15 to 17 shall have no claim of whatsoever nature in respect of the lands described herebelow:8
Sl. Village Sy. No. Extent
No A.C.
1 Pranthya 97-6C 2.60
(New Sy. No. as
per RTC 97/6)
2 Pranthya 97-8 0.16
3 Pranthya 101-1 (old Sy. No.101- 0.91
1B)
c. For identification purpose a sketch is
prepared in presence of the parties and enclosed to this Joint Memo and made part of this Joint Memo. The portion of the land for grant of Occupancy right is confirmed in favour of S. M. Cardoza is marked in yellow colour in the annexed sketch and the grant of Occupancy which is rejected and which is absolutely left in favour of respondent Nos. 7 to 14 is marked in green colour to the sketch annexed this Joint Memo.
d. That, for the properties for which the declaration is rejected and which is absolutely kept free in favour of respondent Nos. 7 to 14 do not have proper road approach. Therefore, as per the terms and compromise, the appellant No.3 9 Mr. Ronal F. Cardoza allowed the respondent Nos. 7 to 14 herein to use 24 feet road approach in Survey No.101/6 of Pranthya Village, which property absolutely belonged to the wife of Appellant No.3 Mrs. Janet Lobo and the Appellant No.3 herein is the GPA holder of his wife. Hence, the respondent Nos. 7 to 14 herein are entitled to use the said 24 feet road which is leading to Mastikatte-Bogrugudde Main Road as morefully shown in the sketch and marked in red colour in the sketch annexed to this Joint Memo. Further, the said 24 feet road is leading to Sy.No.97/6 through Sy.No.101/1. Therefore, even the Appellant Nos. 2 to 4 and Respondent Nos. 4 to 17 are entitled to use the said 24 feet road to ingress and egress to the properties allotted under this Joint memo as shown in the sketch without being any obstructions.
e. That in terms of this Compromise the partition deed entered in between the legal heirs of S. M. Cardoza on 05.05.2006 does not hold good and not binding to the Respondent Nos.7 to 14 herein in respect of the properties for which the grant of occupancy right is rejected as per this 10 Compromise. Therefore, the respondent Nos. 7 to 14 herein can ignore the mutation register and transfer of RTC and they are entitled to transfer the RTC in their names as per the terms of this compromise. Therefore, the appellant Nos. 2 to 4 and respondent Nos. 4 to 17 shall cancel the earlier mutation entries and RTC entries and shall enter their names in the RTC in respect of the properties as per the terms of his Compromise.
f. That the respondent No.1 shall withdraw the original Suit No.104/2012 which is pending before the learned Civil Judge, Moodbidri as per O.S.No.104/2012 in terms of the compromise. The parties shall withdraw any other proceedings which is pending before other Courts or Authorities in respect of the subject matter of properties of this Appeal in terms of this Compromise.
g. That on the basis of the terms of partition deed dated 5.5.2006 as referred above one of the sharer John Cardoza Sold an extent of 56 cents in Sy.No.212/2 (New Sy.No.212/3) to the aforesaid Mr. Shivarama J. Shetty and Ashok Shetty as per 11 Sale Deed dated 06.10.2006. That in view of the present compromise the said property is included in the portion of the declaration is confirmed. Therefore the said sale deed shall be undisturbed.
h. That in view of the compromise the property for which the declaration is confirmed, excluding the aforesaid 56 cents which is sold, shall be repartitioned in between the appellant Nos. 2 to 4 and respondent Nos. 4 to 6 and 15 to 17 in following terms
(i) The property which is sold by John Cardoza to the aforesaid Mr. Shivarama J. Shetty and Ashok Shetty as per Sale Deed dated 06.10.2006 shall be deducted from the shares of respondent Nos.4 to 6 and their remaining share shall be allotted in Sy.No.97/6C only.
(ii) That in view of the compromise and setting aside the partition deed dated 5.5.2006 the respondent Nos. 15 to 17 shall jointly have 91 12 cents of immovable property in Sy.No.212/2 and they shall not claim shares in other property.
(iii) Remaining properties shall be partitioned in between appellant Nos. 2 to 4 according to their understanding.
4. Along with the compromise deed, a sketch has been submitted. The same shall be taken on record.
Therefore, the appeal is allowed in the aforementioned terms, and the order dated 07.06.2012 passed by the Land Tribunal, Mudabidri, in case No. TRL 127/1977-78, shall stand modified accordingly.
SD/-
JUDGE SD/-
JUDGE VP