Karnataka High Court
Smt Sharadabi vs Shivaprakash on 6 October, 2023
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NC: 2023:KHC-K:8015
RSA No. 200006 of 2017
C/W RSA No. 565 of 2007
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200006 OF 2017(SP)
C/W
REGULAR SECOND APPEAL NO.565 OF 2007
IN RSA NO.200006/2017:
BETWEEN:
1. SMT. SHARDABAI
W/O MALLIKARJUN BADIGAR
AGE:62 YEARS, OCC:AGRICULTURE
R/O:KESARATAGI
TQ & DIST:KALABURAGI
2. JAGADEVAPPA
S/O MALLIKARJUN BADIGERI
Digitally signed
by AGE:42 YRS.
LUCYGRACE
Location: HIGH
OCC:AGRICULTURE
COURT OF
KARNATAKA
R/O:KESARATAGI
TQ & DIST:KALABURAGI
...APPELLANTS
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. SHIVAPRAKASH CH
S/O MRUTUNJAYA
AGE:50 YRS
OCC:GOVT. SERVANT
R/O:H.NO.10-2-100,
-2-
NC: 2023:KHC-K:8015
RSA No. 200006 of 2017
C/W RSA No. 565 of 2007
ANAND NAGAR
KALABURAGI-585103.
2. KASHAPPA
S/O BHIMANNA BADIGERI
AGE:MAJOR
R/O:KESARATAGI
TQ & DIST:KALABURAGI-585 105
PRESENT WHEREBOUTS NOT KNOWN
...RESPONDENTS
(BY SRI. D P AMBEKAR FOR R1; NOTICE TO R2 IS HELD
SFFICIENT, VIDE COURT ORDER DATED 31.05.2022)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
CALL FOR AND EXAMINE THE RECORDS IN O.S. NO.25/2004
OF THE II ADDL. SENIOR CIVIL JUDGE AT GULBARGA AND R.A.
NO.121/2013 OF THE PRL. DIST. JUDGE, KALABURAGI, AND
ALLOW THE APPEAL BY SETTING ASIDE THE IMPUGNED
JUDGMENT AND DECREED DATE 22.11.2016 R.A. NO.
121/2013 OF THE PRL. DIST. JUDGE, KALABURAGI AND
RESTORE THE JUDGMENT AND DECREE DATED 23.10.2013 IN
O.S. NO.25/2004 OF THE II ADDL. SENIOR CIVIL JUDGE AT
GULBARGA DISMISSING THE SUIT OF THE PLAINTIFFS.
IN RSA NO.565/2007:
BETWEEN:
SMT. SHARDABAI
W/O MALKAJAPPA SUTAR
AGE:62 YEARS, OCC:AGRICULTURE & HOUSEHOLD
R/O:KESARATI
TQ & DIST:KALABURAGI
...APPELLANT
(BY SRI. SHIVANAND PATIL, ADVOCATE)
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NC: 2023:KHC-K:8015
RSA No. 200006 of 2017
C/W RSA No. 565 of 2007
AND:
SHIVAPRAKASH CH
S/O MRUTUNJAYA
AGE:42 YRS
OCC:GOVT. SERVANT
R/O:GOURISHANKAR NILAYA
S.B. TEMPLE ROAD,
KALABURAGI-585102.
...RESPONDENT
(BY SRI. D P AMBEKAR, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO
CALL FOR RECORDS; ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE I ADDL. CIVIL JUDGE
(SR.DN.), GULBARGA IN RA NO.125/2006 ON 19.01.2007 AND
CONSEQUENTLY GRANT DECREE IN FAVOUR OF THE
APPELLANT AS PRAYED FOR IN O.S. NO.184/2001 PASSED BY
THE I ADDL. CIVIL JUDGE (JR.DN.), GULBARGA DATED
19.06.2006 AND AWARD COSTS THROUGHOUT AND GRANT
ANY OTHER RELIEF APPROPRIATE IN THE CIRCUMSTANCES OF
THE CASE, IN THE INTEREST OF JUSTICE.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Learned counsel for the appellants and learned counsel appearing for the respondents submit that the appellants and respondents in both the appeals have -4- NC: 2023:KHC-K:8015 RSA No. 200006 of 2017 C/W RSA No. 565 of 2007 amicably resolved the dispute and files a compromise petition under Order XXIII Rule 3 of CPC.
2. The appellants and respondent No.1 are present before the court and they are duly identified by their respective counsel.
3. The terms of the compromise petition reads as under:
"TERMS OF COMPROMISE
1. It is agreed by the plaintiffs and defendants that the suit property shall be divided North-South into two strips, namely, the Western Strip measuring 04 acres 00 guntas specifically marked and which is shown by letters AEGFDA and Eastern Strip measuring 02 acres 20 guntas specifically marked and which is shown by letters EBHCFGE in the rough hand sketch map.
2. It is agreed and settled by the plaintiff and defendants that the defendants shall execute a sale deed in the name of the plaintiff or any of his nominees in respect of the western strip of 04 acres plus 25 feet North-South shown as GHCFG of Sy No.83/1 which is shown by letters AEGHCFDA in the annexed hand sketch.-5-
NC: 2023:KHC-K:8015 RSA No. 200006 of 2017 C/W RSA No. 565 of 2007
3. It is further agreed by the plaintiff that he would pay an additional sum of Rs.1,00,000/- (Rs. One Lakh Only) by cash in addition to the amount paid under the suit agreement and the receipt of the additional amount of Rs. One Lakh is accepted and acknowledged by the defendants-appellants.
4. It is further agreed that the plaintiff-respondent No.1 that the defendants are entitled to hold and enjoy as absolute owners in possession of the possession of the remaining extent of 02 acres 20 guntas, less the 25 feet North-South being the eastern strip which is shown by letters EBHGE in the annexed hand sketch map and the plaintiff or any of his successors, assigns or heirs would have no right, title or interest or any claim in the said remaining extent of 02 acres 20 guntas less 25 feet North-South shown in the sketch which is shown by letters EBHGE in the suit property.
5. It is further agreed by the defendants that in addition to the Western strip 04 acres of Sy no 83/1 agreed to be sold, they shall also convey under the same sale deed an area 25 feet North-South shown in the sketch which is shown by letters GHCFG in the south part of eastern portion of Sy.No.83/1 measuring 02 acres 20 guntas.
6. It is further agreed that in terms of this compromise, the appellants agree to execute the said registered sale -6- NC: 2023:KHC-K:8015 RSA No. 200006 of 2017 C/W RSA No. 565 of 2007 deed for the said plus the Western 04 acres 00 guntas plus the 25 feet North-South in favour of the respondent No.1 herein after obtaining the necessary 11 E sketch and other documents required for the registration of the sale deed within a period of 06 months from the date of this Compromise Petition, failing which the respondent No.1 is art liberty to get this Compromise Decree executed through the process of Court.
7. It is further agreed that each of the parties have already entered possession of their extent in terms of this compromise and neither of the parties shall interfere in another's possession.
8. The parties have annexed a hand-sketch to the compromise petition and the same shall for part and parcel of this compromise petition.
9. In view of this Compromise Petition, the RSA No.565/2007 does not survive for consideration and same be dismissed as withdrawn by the Appellants herein who are also the Appellants therein.
10. The parties submit that the Respondent No.2 herein is unheard of since last more than 15 years and nobody knows his whereabouts and is thus presumed to be dead leaving behind no other legal heirs other that the -7- NC: 2023:KHC-K:8015 RSA No. 200006 of 2017 C/W RSA No. 565 of 2007 appellants. Hence, this RSA be dismissed as against the respondent No.2 herein as not pressed.
4. It is stated in the compromise petition that respondent No.2 is unheard and his whereabouts is not known since more than 15 years. When a query is made by this court, the appellants and respondent No.1 submits that they have agreed the terms of the compromise with free will and without there being any coercion, undue influence etc.
5. Along with the compromise petition, the hand sketch map is produced which would form part and parcel of the order.
6. In terms of the compromise petition, the appeal in RSA No.200006/2017 is disposed of and the judgment and decree stands modified and the appeal in RSA No.565/2007 would not survive for consideration and the said appeal is dismissed as withdrawn. -8-
NC: 2023:KHC-K:8015 RSA No. 200006 of 2017 C/W RSA No. 565 of 2007
7. Registry to draw the decree in terms of the compromise petition.
Sd/-
JUDGE BL List No.: 1 Sl No.: 58