Karnataka High Court
Smt Nagamma vs Smt Bhadramma on 12 December, 2022
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
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RFA No. 1698 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE T G SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO.1698 OF 2017
BETWEEN:
1. SMT NAGAMMA
ABOUT 74 YEARS
W/O B M SADASHIVAIAH
R/AT NO.36
AMRUTHANAGAR A SECTOR,
NEAR MUNESWARA TEMPLE ,
NEAR BYATARAYANAPURA,
BANGALORE - 560 092
NOW RESIDING AT BANAVADI POST,
SOLUR HOBLI, MAGADI TALUK,
RAMANAGAR DISTRICT - 571 511
REPRESENTED BY HER DAUGHTER & P.A HOLDER SMT
SOUMYA ARADHYA, 57 YEARS
WIFE OF LATE MALLIKARJUNA ARADHYA,
R/AT NO.76, 17TH A CROSS
BHUVANESHWARINAGAR,
NEAR COFFEE BOARD LAYOUT,
BANGALORE - 560 024.
... APPELLANT
Digitally signed (BY SRI. M.S. VARADHARAJAN, ADVOCATE)
by VIJAYA P
Location: High AND:
Court of 1. SMT BHADRAMMA
Karnataka 64 YEARS
2. SRI PRAVEEN KUMAR
39 YEARS
3. SRI ARUN KUMAR
37 YEARS
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RFA No. 1698 of 2017
4. SMT SUSHEELA
34 YEARS
RESPONDENT NO.1 IS WIFE,
RESPONDENT NO.2 & 3 ARE SONS AND
RESPONDENT NO.4 IS DAUGHTER OF
LATE M B BASAVARAJU
(SON OF LATE BHADRAIAH)
RESPONDENT NOS.1 TO 4
RESIDING BEHIND DEVATHA PLASTIC,
MADANAYAKANAHALLI,
MADAVARA POST, DASANAPURA HOBLI,
BANGALORE NORTH TALUK - 562 143.
5. SMT M B BHADRAMMA
50 YEARS
WIFE OF ESWARAIAH
D/O LATE BHADRAIAH
RESIDING NEAR GOVT. PRIMARY SCHOOL
MADANAYAKANAHALLI,
MADAVARA POST,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK - 562 143
REPRESENTED BY HER GPA HOLDER AND
COPY OF THE SAME IS PRODUCED WHICH IS MARKED IN
TRIAL COURT
... RESPONDENTS
(BY SMT. BHANU PRABHA, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 22.4.2017 PASSED IN OS
NO.21/2008 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE,
BANGALORE (R) DISTRICT, BANGALORE, DISMISSING THE SUIT FOR
DECLARATION AND PARTITION.
THIS APPEAL COMING ON FOR FURTHER ORDERS, THIS DAY,
P.S. DINESH KUMAR J., DELIVERED THE FOLLOWING:
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RFA No. 1698 of 2017
JUDGMENT
This appeal under Section 96 of the CPC is presented challenging the judgment and decree dated April 22, 2017 in O.S.No.21/2008 on the file of the II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru.
2. Appellant/ plaintiff has filed the instant suit for a judgment and decree inter alia directing that the partition deed dated February 1, 2002 is not binding on the plaintiff and that plaintiff is entitled for 1/3rd share in the suit properties. By the impugned judgment and decree, the suit has been dismissed.
3. Learned advocates on both sides submit that the parties have settled the dispute in terms of the compromise petition filed under Order XXIII Rule 3 of CPC, which reads a follows:
"1. Parties to the above appeal have amicably settled the matter and are thus filing this compromise petition, the terms of which are as under:
2. Respondents have paid to the Appellant a sum of Rs.15,00,000.00 (Rupees Fifteen Lakhs only) through bankers cheque/pay order bearing -4- RFA No. 1698 of 2017 No.760459, dated 28.11.2022, drawn on State Bank of India, Madavara Branch.
3. Lands in survey Nos.28/1, 29/1, 41/3 and 48/1, all situate in Madavara Village, Dasanapura Hobli, Bangalore North Taluk, which are plaint schedule items 6 to 9 in O.S. No.21/2008 are acquired for the NICE project by the B.D.A. and parties to the above appeal are entitled to one site measuring 60' X 40' allottable by the B.D.A. under the incentive scheme.
4. Respondents do hereby agree that Appellant by virtue of this compromise may move the concerned authorities and have such incentive site allotted exclusively in her favour and Respondents do hereby further agree and undertake not to claim any manner of right, title or interest in such site which may be allotted in favour of the appellant by the Acquiring Authorities.
5. Property bearing Sy.No 6/7, measuring 1=00 acre out of 4 acre 25 guntas in extent is allotted to the share of the appellant and the same is fully described in the schedule hereunder.
Appellant is placed in exclusive possession of the same. Respondents do hereby agree and undertake not to claim any right, title, interest or possession -5- RFA No. 1698 of 2017 over the said property. However there is a dispute pending with respect to this property with the authorities of Bheemeshwara Devaru, Makali, Bangalore North Taluk and it is the appellants responsibility to get the said dispute duly resolved and respondents are in no way liable to the appellant, if the appellant is unable to resolve the dispute with the temple authorities and appellant shall have no claim over the respondents in the event appellant is unable to get the said dispute duly resolved.
6. During the pendency of the suit Appellant/plaintiff has entered into a partial compromise with Defendants 7 to 11, as per the terms of which, amongst others, appellant/plaintiff is given two more such incentive sites to be allotted by the Acquiring Authorities and a partial decree is already passed in O.S.No.21/2008 in that regard.
7. The incentive site to be allotted to the Appellant by the Acquiring Authorities as mentioned in para 2 above is in addition to the two other sites which are already allotted to the appellant/plaintiff as per the terms of the partial compromise filed in O.S.No.21/2008.
-6- RFA No. 1698 of 20178. Appellant does hereby acknowledge the receipt of Rs.15,00,000.00 (Rupees Fifteen lakhs only) from the respondents as stated above and Appellant further declares that she has received the said money and the property mentioned in the schedule hereunder in full and final settlement of her claim made in O.S.No.21/2008 as well as in the above appeal. Appellant/Plaintiff does hereby agree and undertake not to claim any share or any manner of right as against the Respondents with respect to the remaining suit properties. That is SI Sy.No. Extent i. 4/3 0.38 guntas ii. 6/6 1 acre 28 guntas iii. 6/7 3 acre 25 guntas I.e., after accounting for 1=00 acre which is compromise schedule property allotted to the appellant under this compromise.
iv 6/2 0.24 guntas
v. 5/2 0.04 guntas
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RFA No. 1698 of 2017
All the above lands are situating at
Madanayakanahalli, dasanapura hobli, Bangalore
North Taluk.
9. Appellant/Plaintiff does hereby further declare that it is her responsibility to move the Acquiring Authorities to have the incentive sites allotted in her favour and in the event no such allotment is made by the Acquiring Authorities for whatever reasons, Appellant shall not have any right to proceed against the Respondents in that regard.
10. In the event, the Acquiring Authorities decide to pay monetary compensation instead of allotting the incentive sites in favour of the Appellant, the Appellant is entitled to receive the entire monetary compensation and respondents shall have no right to claim any share in the same.
11. Parties to this compromise do hereby state and declare that they have entered into this compromise out of their free will and volition and there is no element of fraud, mistake, misrepresentation, undue influence or coercion in filing this compromise.
12. Both parties respectfully pray that this Hon'ble Court be pleased to record this compromise -8- RFA No. 1698 of 2017 and dispose of the above appeal in terms of the same, in the interest of justice.
SCHEDULE Land in Sy.No 6/7, measuring 1=00 acre situate in Madanayakanahalli Village, Dasanapura Hobli, Bangalore North Taluk Bounded on East by: Hanumanthegowdaplaya Road West By: Private property North By: Private property South by: Remaining portion of Sy. No.6/7
4. Appellant is present and she is identified her Advocate Shri. M.S. Varadarajan. Respondents No.2 and 3 are present. They are identified by Smt. Bhanu Prabha, learned advocate for respondents. Respondent No.2 is the GPA holder for respondents No. 1, 4 and 5.
5. Respondents have handed over a Demand Draft bearing No.760459 for Rs.15,00,000/- to the appellant and the appellant acknowledges the receipt of the same.
6. In our opinion, the terms of compromise are lawful and the same are accepted. Hence, the following:
-9- RFA No. 1698 of 2017ORDER
(a) Appeal is disposed of in terms of the Compromise petition modifying the judgment and decree passed by the Trial Court.
(b) Registry shall draw the decree accordingly.
No costs.
Sd/-
JUDGE Sd/-
JUDGE VP