Karnataka High Court
Sri. Viren S/O B.S. Jagath Ram vs Sri B.S. Jagath Ram S/O B K Srinivasan on 23 September, 2019
Equivalent citations: AIRONLINE 2019 KAR 2975
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
REGULAR FIRST APPEAL NO.812 OF 2011 (PAR)
BETWEEN:
SRI. VIREN,
S/O B.S. JAGATH RAM,
AGED ABOUT 29 YEARS,
R/AT FLAT NO 304,
DHEERAJ MANOR,
NO 24, KENSINGTON ROAD,
ULSOOR, BANGALORE - 560 008. ... APPELLANT
(BY SRI S V BHAT, ADVOCATE)
AND:
1. SRI B.S. JAGATH RAM,
S/O B K SRINIVASAN,
MAJOR,
AT GOWDERS FARM,
OFF MYSORE ROAD,
KUMBALGODU,
BANGALORE SOUTH.
2. SRI B S AJIT KUMAR,
@ AJAIT SRINIVASAN,
S/O S K SRINIVASAN,
MAJOR,
R/AT NO.157,
RICHMOND ROAD,
BANGALORE - 560 025. ... RESPONDENTS
(BY SRI M N MADHUSUDHAN, ADVOCATE FOR R1;
SRI M ARUN PONNAPPA, ADVOCATE FOR C/R2)
-: 2 :-
****
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED:11.02.2011 PASSED IN O.S.37/1999 ON THE FILE OF
THE I-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, DISMISSING THE SUIT FOR THE PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the appellant is the son, whereas, the respondent No.1 is the father.
2. Learned counsel for the appellant and respondent No.1 submit that a memo is being filed seeking withdrawal of the appeal by deleting respondent No.2, in lieu of the settlement arrived at between the appellant and respondent No.1.
3. The submission of the learned counsel for the parties is placed on record.
4. The appellant has filed this appeal being aggrieved by the judgment and decree dated 11.02.2011 passed in O.S. No.37/1999 by the I Additional City Civil & Sessions Judge, Bengaluru. The said suit was filed by the -: 3 :- appellant seeking a decree of partition and separate possession of his 1/6th share in the suit schedule properties and other incidental and ancillary reliefs. By its judgment and decree, the trial Court dismissed the suit. Being aggrieved, the plaintiff has preferred this appeal.
5. Learned counsel for the appellant and respondent No.1 submit jointly that during the pendency of this appeal, the appellant and respondent No.1 have agreed to settle the dispute and have arrived at an amicable settlement. That the parties have filed a compromise under Order XXIII Rule 3 of the Code of Civil Procedure, 1908. They submit that the appeal may be disposed of in terms of the settlement arrived at between the parties.
6. The parties are present before this Court. They have been identified by their respective counsel. When queried by this Court, the appellant and respondent No.1 stated that they have agreed to settle the dispute in an amicable manner, on their own free volition without there being any undue influence or coercion from any side. -: 4 :- They also state that the appeal could be disposed of in terms of the compromise arrived at between the parties.
7. The Memorandum of Compromise which is filed in the Court is taken on record. It is noted that the same is signed by the appellant and respondent No.1 and by their respective counsel.
8. The Memorandum of Compromise reads as under:
"The appellant and 1st respondent submit as follows:
I. The appellant and the 1st respondent are the son and father respectively and the 2nd respondent is the senior uncle of the appellant.
II. The appellant has filed the above appeal challenging the judgment and decree in O.S.No.37/1999 on the file of the I Additional City Civil and Sessions Judge, Bengaluru City (CCH-2) dated 11.02.2011 rejecting his claim for partition of 1/6th share in the plaint schedule properties. The parties, having regard to their relationship and though the appellant has been living separately from the 1st respondent over 35 years, regard being had to the long pendency of the appeal and the health condition of the 1st -: 5 :- respondent and also on the advice of the well wishers, the appellant and the respondent No.1 have agreed to amicably settle their dispute on the following terms:-
1. The 1st respondent concede that the schedule properties, specifically mentioned in item No.5 of the Deed of Family Settlement dated 09.03.1989 produced as Exhibit P-26 and D-1 and as described in the schedule hereunder and hereinafter referred to as the 'Schedule Property', is the joint family properties of the appellant and himself and that the appellant/plaintiff has ½ share in the said properties. Though in the trial Court the 1st respondent is set ex-
parte and is contesting in the appeal, in order to put an end to the litigation, the 1st respondent expressed his intention to retain the entire properties mentioned as Item No.5 in the partition deed and fully described in the schedule hereunder as well, the appellant has agreed to take the value of his share in the schedule property in terms of money and the 1st respondent has also agreed for the same.
2. The 1st respondent also concede that he has sold some portions and also agreed to sell some more portions of the schedule -: 6 :- properties in favour of the persons proposed to be impleaded as applicants in I.A.No.2/2018, I.A.No.1/2019 and I.A.No.2/2019 including M/s.Vishnodevi Lush Green Pvt. Ltd., and the documents enclosed to the said applications during the pendency of the above appeal and retaining the remaining lands.
3. The 1st respondent had agreed to pay the sum of Rs.12,50,00,000/- (Rupees Twelve Crores Fifty Lakhs only) to the appellant being the value of his share in the schedule properties as full and final settlement.
4. The appellant has also agreed to receive the sum of Rs.12,50,00,000/- (Rupees Twelve Crores Fifty Lakhs only) being the value of his share in the schedule properties and as full and final settlement.
5. The 1st respondent has agreed to pay the said amount of Rs.12,50,00,000/- (Rupees Twelve Crores Fifty Lakhs only), on his account, in the following manner:
(a) A sum of Rs.5,00,00,000/- (Rupees Five Crores only) by way of demand drafts and drawn on HDFC Bank, Vijayanagar Branch, Bengaluru, vide--: 7 :-
(i) No.036464 dated 17.09.2019 for Rs.1,00,00,000/- (Rupees One crore only);
(ii) No.036465 dated 17.09.2019 for Rs.50,00,000/- (Rupees Fifty Lakhs only);
(iii) No.036467 dated 17.09.2019 for Rs.30,00,000/- (Rupees Thirty Lakhs only);
(iv) No.036468 dated 17.09.2019 for Rs.30,00,000/- (Rupees Thirty Lakhs only);
(v) No.036471 dated 17.09.2019 for Rs.50,00,000/- (Rupees Fifty Lakhs only);
(vi) No.036475 dated 18.09.2019 for Rs.40,00,000/- (Rupees Forty Lakhs only);
(vii) No.036486 dated 18.09.2019 for Rs.50,00,000/- (Rupees Fifty Lakhs only);
(viii) No.036474 dated 18.09.2019 for Rs.50,00,000/- (Rupees Fifty Lakhs only);
(ix) No.036477 dated 18.09.2019 for Rs.50,00,000/- (Rupees Fifty Lakhs only);
(x) No.036487 dated 18.09.2019 for Rs.31,76,000/- (Rupees Thirty One Lakhs Seventy Six Thousand only);
(xi) No.036489 dated 19.09.2019 for Rs.18,24,000/- (Rupees Eighteen Lakhs Twenty Four Thousand only);-: 8 :-
On the date of this compromise, the receipt of which the appellant hereby acknowledges;
(b) Out of the balance amount, a sum of Rs.3,50,00,000/- (Rupees Three Crores Fifty Lakhs only) by way of demand draft on the account of 1st respondent, on or before 18.12.2019;
(c) The remaining final balance of Rs.4,00,00,000/- (Rupees Four Crores only) by way of demand draft on the account of 1st respondent, on or before 17.03.2020.
6. It is agreed between the parties that there shall be a charge on the schedule properties till the last pie is paid by the 1st respondent and after receipt of the last payment, the appellant or his legal representatives cease their right over the properties retained by the 1st respondent and the first respondent shall become the full and absolute owner and enjoy the same without any hindrance.
7. It is further agreed that the 1st respondent or anybody claiming through or under them shall not change the nature of the schedule properties and/or create any third party rights or encumbrance in respect of the schedule properties and this compromise is -: 9 :- binding on them till the 1st respondent pay the last pie of the amount of Rs.12,50,00,000/- as agreed above and appellant shall have no right to re-open the case.
8. The first respondent shall not execute any conveyance or create any encumbrance over the schedule properties till the appellant's value of the share, as agreed above is fully and finally settled and the appellant shall co-operate with the 1st respondent, as and when required in signing the discharge share/certificate and registration thereof, if required, or such other documents in any pending petition, upon receipt of the final payment of the amount under the aforesaid terms.
9. In the event of the 1st respondent failing to pay the amount as agreed above and within the time stipulated supra, the appellant at his discretion can either accept the balance amount belatedly and / or can initiate the final decree proceedings seeking division of the properties by metes and bounds to the extent of the unpaid money.
10. The appellant has no other claim whatsoever against the 1st respondent as -: 10 :- well as the suit schedule properties of the 1st respondent or his share as per the family settlement dated 09.03.1989 - i.e., Exhibit P-26 and D-1 upon receipt of the amount as agreed above.
WHEREFORE, the appellant and the 1st respondent pray that this Hon'ble Court may be pleased to record the above terms and pass a decree in terms thereof, in the interest of justice.
SCHEDULE Lands called Ramcharan gardens, Vashistasharm consisting of the following:
(a) Dry and wet lands bearing Sy No.28, 29 and 30 measuring 4 acres 22 guntas, 4 acres 20 guntas and 5 acres 10 guntas respectively, situated Chikkallur Rampur village, Taverekere Hobli, Magadi Taluk, Bangalore District, and together bounded on East by: Komalgadu gadi, West by: halla and lands of Putta Boyi, Veera boyi and Munishami, North by Survey No.14 and 15 of Chikkallur Venkatapura, and South by: Gomal;
and Ganga Boyi's land, now converted.
(b) Dry and Wet land bearing Sy No.14 and 15, measuring 6 acres and 5.38 acres respectively, situated in Chikkallur Venkatapura, Taverekere Hobli, Magadi Taluk, Bangalore district, bounded on East by Komalgadu Gadi, West by: Land granted to Nanjaiah and others, North by: Part of Sy No.1 and South by Survey No.28 and 29 of Chikkallur, Rampur, now converted.
(c) Dry and west land bearing Sy.No.1/2, measuring 2 acres, situated in Chikkallur Venkatapura, Taverekere Hobli, Magadi Taluk, Bangalore district, bound on - East by:
Komalgadu gadi, West by: Survey No.1 Block - 3, -: 11 :- North by part of same number and South by Survey No.14 of Chikkallur Venkatapura, now converted.(d) Dry land bearing Sy.No.1/1 measuring 2
acres, situated in Chikkallur Venkatapura, Taverekere Hobli, Magadi Taluk, Bangalore district, bounded on East by: Komalgadu gadi, West by Sy.No.13, North by Sy.No.1 gomal and South by Block No.2 in Sy.No.1, item No.3 (now converted);(e) Dry land bearing Sy.No.14, measuring 2
acres and situated in Chikkallur Venkatapura, Venkatapura Hobli, Magadi Taluk, Bangalore District, bounded on East by Komagadu gadi, West by part of Sy.No.14 (item No.2), North by Sy.No.1/2, item No.3 above, and South by part of Sy.No.14 (now converted} (f) Excess land in Sy.No.1 measuring 1 acre 26 guntas in Chikkallur Venkatapura and granted to Shyam Rao and D.S.Doraiswami by Tahsildar vide Memo No.SRTSR 3/177 dated 16.04.1963 for an upset price.
Sd/- Sd/-
ADVOCATE FOR APPELLANT APPELLANT
PAN:AFWPG9317B
AADHAR NO.796714175285
Sd/- Sd/-
ADVOCATE FOR 1ST RESPONDENT 1ST RESPONDENT
VERIFICATION
We, Viren and B.S.Jagathram, the appellant and the 1st respondent do hereby declare that this is our true name and signature and what is stated above, is true and correct to the best of our knowledge and information.
Sd/-
APPELLANT
PAN:AFWPG9317B
AADHAR NO.796714175285
-: 12 :-
Bengaluru Sd/-
Date: 23.09.2019 1ST RESPONDENT"
9. The gist of the settlement arrived at between the parties is subject to payment of Rs.12,50,00,000/-
(Rupees Twelve Crores Fifty Lakhs only) by the respondent No.1 to the appellant herein, and the appellant shall relinquish all his right, title and interest in the suit schedule properties. That initially, a sum of Rs.5,00,00,000/- (Rupees Five Crores only) is being paid by way of Demand Drafts as detailed in paragraph No.5(a) of the memorandum of compromise extracted above. That a sum of Rs.3,50,00,000/- (Rupees Three Crores Fifty Lakhs only) shall be paid by way of Demand Draft by the respondent No.1 to the appellant on or before 18.12.2019 and a sum of Rs.4,00,00,000/- (Rupees Four Crores only) shall be paid by way of Demand Draft by the respondent No.1 to the appellant on or before 17.03.2020. The parties state that they shall abide by the terms and conditions of the settlement arrived at by them.
10. However, we also state and clarify that, in the event, the respondent No.1 does not comply with the -: 13 :- payments as detailed above, the appellant shall be entitled to seek revival of this appeal or in the alternative, to execute this compromise decree before the competent executing Court. The reason as to why liberty is reserved to the appellant to seek revival of the appeal is because the suit filed by the appellant/plaintiff has been dismissed.
11. It is also clarified that in paragraph No.9, it is inadvertently been stated that the appellant can initiate final decree proceedings seeking division of the properties by metes and bounds. Therefore, we have stated that the appellant is entitled to seek reopening of this appeal and if any appropriate orders are made thereon, then in such an event, the appellant can initiate final decree proceedings in accordance with law.
12. The appellant and respondent No.1 submit that they would abide by the terms and conditions of the settlement and that respondent No.1 submits that there would be no occasion to the appellant to apply for revival of this appeal or seek execution of the compromise decree in the event of any disobedience of the terms and conditions of the settlement.
-: 14 :-
13. The submission of respondent No.1 is placed on record.
14. On perusal of the terms and conditions of the compromise petition, we find the same to be lawful and we find there is no legal impediment to accept the settlement and dispose of the appeal in terms of the settlement arrived at between the parties.
15. In the result, the judgment and decree of the trial Court is modified in terms of the compromise arrived at between the parties and the suit filed by the appellant is decreed in part in terms of the compromise.
16. The Regular First Appeal is disposed of in the aforesaid terms in view of the compromise arrived at between the parties.
The Registry to draw a final decree in the aforesaid terms.
As noted above, the learned counsel for the appellant has filed a memo stating that the appellant does not press the appeal as against respondent No.2. -: 15 :-
Memo is taken on record.
The appeal as against respondent No.2 is dismissed. In view of disposal of the appeal, all pending applications stand disposed.
Sd/-
JUDGE Sd/-
JUDGE SJ