Karnataka High Court
Shri Narayan S/O Ramachandra Deshpande vs Shri Srinivas Dattatraya Since Dead By ... on 8 August, 2012
Author: Ajit J Gunjal
Bench: Ajit J.Gunjal
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 8TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR.JUSTICE AJIT J.GUNJAL
WRIT PETITION No.61811/2009(GM-CPC)
A/W WRIT PETITION NO.63695/2010
In W.P.61811/2009
BETWEEN:
1. SHRI. NARAYAN
S/O RAMACHANDRA DESHPANDE
AGE 85 YEARS, OCC: PENSIONER
RESIDENT OF GAONKAR CHAL,
BELGAUM ROAD, DHARWAD 580 001.
2. SRI. RANGANATH,
S/O RAMACHANDRA DESHPANDE
AGE 76 YEARS, OCC: EX. SERVICE MAN
R/O NAVANAGAR, HUBLI 580 025.
...PETITIONERS
(BY SRI. T.RADHA KRISHNA AND SRI. C.R. MENSINKAI, ADV.)
AND:
SHRI. SRINIVAS DATTATRAYA
SINCE DESHPANDE DECEASED BY HIS LRS.
a) PADMAVATI, W/O SRINIVAS DESHPANDE
b) GIRIJA, D/O SRINIVAS DESHPANDE
c) RADHIKA, D/O SRINIVAS DESHPANDE
d) LAXMIKANT, S/O SRINIVAS DESHPANDE
e) SHRIDEVI, D/O SRINIVAS DESHPANDE.
:2:
ALL ARE MAJORS(CORRECT AGE NOT KNOWN)
R/O SHUKRAVAR PETH, DESHPANDE GALLI,
DHARWAD 580 001.
...RESPONDENTS
(BY SMT R.M.KULKARNI AND SMT. HEMALEKHA K.S., ADVS FOR
R(A))
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
COMPROMISE DECREE DATED 25/11/2006 IN O.S.NO.88/1998
PASSED BY THE DISTRICT LEGAL SERVICE AUTHORITY DHARWAD
VIDE ANNEXURE-C AND REJECT THE COMPROMISE PETITION
DATED 25/1/2006 VIDE ANNEXURE-B AND ETC.
IN W.P.63695/2010
BETWEEN:
LAXMIKANT,
S/O SHRINIVASRAO DESHPANDE
AGE 42 YEARS BY HIS GPA HOLDER
SMT. PADMAVATI
W/O SHRINIVASRAO DESHPANDE
AGE 66 YEARS, OCC: HOUSEHOLD WORK,
R/O SHUKRAVAR PETH, DESHPANDE GALLI
DHARWAD. .. PETITIONER
(BY SRI. R.M. KULKARNI, ADV.)
AND:
1. THE DEPUTY COMMISSIONER,
DHARWAD, DIST. DHARWAD.
2. THE ASST. COMMISSIONER,
DHARWAD, DIST. DHARWAD.
3. THE TAHSILDAR,
DHARWAD, DIST. DHARWAD.
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4. PRAKASH,
S/O SIDDAPPA @ BABURAO GHATAGE
AGE MAJOR, R/O UDUPI ONI,
HOSAYALLAPUR, DHARWAD.
5. SUBHAS, S/O YELLAPPA SHINDHE
AGE MAJOR, R/O DAROGA ONI,
DHARWAD. .. RESPONDENTS
(BY SRI. ANAND K. NAVALGIMATH, HCGP FOR R1 TO R3.
SRI. C.R. MENSINKAI, ADV. FOR R4. R5 IS SERVED.)
THIS WRIT PETITON IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER 15/09/2009 PASSED BY THE 1ST RESPONDENT AT
ANNEXURE-A, CONFIRMING THE ORDER PASSED BY THE
RESPOINDENT NOS.2 AND 3 PRODUCED AT ANNEXURE-B AND C
RESPECTIVELY AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The parties are litigating over the terms of the compromise decree passed in O.S.No.88/1998 and O.S.No.153/1995. The proceedings, it appears, commenced between the two families of the petitioners and the respondents way back in the year 1998 and :4: culminated in the decree. To appreciate the controversy in question, a few facts are required to be noted.
2. During the course of this order, the parties would be referred to as per their ranking before this Court.
3. O.S.No.144/1993 was filed by the petitioners for partition and separate possession in respect of house property namely CTS No.1086 of Dharwad. The respondents who were the defendants entered appearance and filed written statement. The matter was referred to Lok Adalat and compromise was arrived before the Lok Adalat on 25/11/2006. One of the conditions was the petitioners were required to pay for half share of the respondents. Both the learned counsel submit that the subject matter of these writ petitions is not referable to the compromise decree in O.S.No.144/1993.
:5:
4. Respondents herein filed a suit in O.S.No.88/1998 for declaration of title and in respect of the agricultural land measuring 10 acres 12 guntas. The petitioners lodged counter claim in the said suit seeking half share in the property. Simultaneously, the petitioners filed a suit in O.S.No.153/1995 for enforcement of an agreement to sell in respect of 2 acres 12 guntas. The said suit was decreed on 17/11/2004 and execution proceedings were initiated to execute the said decree in Execution Petition No.39/2005. O.S.No.88/1998 filed by the respondent also ended in a compromise before Lok Adalat pursuant to which the petitioners confined their claim only to 2 acres 12 guntas which was the subject matter of O.S.No.153/1995. Aggrieved by the judgment and decree in O.S.No.153/1995, the respondents filed an appeal before this Court in Regular First Appeal No.1438/2005. Since the dispute inter se between the :6: parties with respect of agricultural land ended in settlement, Regular First Appeal was withdrawn with the condition that the respondents have to execute sale deed within 15 days form the date of withdrawal of RFA. Since the said terms of the compromise was not given effect to, the petitioners filed execution petition as referred to above i.e., Execution Petition No.39/2005. It is not in dispute that during pendency of the said proceedings, petitioners have assigned the judgment and decree for specific performance in favour of the stranger who has stepped into the shoes of the decree holders. It appears, the respondents herein made an application in the execution proceedings indicating that if at all the petitioners are assigning the decree in favour of a stranger, they are willing to purchase the property. The said application was rejected confirming the assigning of the decree in favour of a stranger. :7:
5. Respondents were before this Court by way of Writ Appeal questioning the said order and this Court confirmed the order of the executing Court. Thus, a Commissioner was appointed to execute the sale deed in favour of the assignee which has been done. To that extent there is no difficulty. The petitioners now are questioning the judgment and decree passed by the Lok Adalat in O.S.No.88/1998 on the premise that they are entitled for the remaining area of 5 acres.
6. I have heard learned counsel for the petitioners as well as the respondents.
7. Learned counsel for the petitioners vehemently submits that the compromise decree clearly discloses that the remaining area of 5 acres which the petitioners were legitimately entitled was not given up but was subject to certain conditions of the compromise :8: decree inasmuch as the respondents were required to execute the sale deed within a period of 15 days from the date of withdrawal of the suit. That having not been done, in the circumstances, the compromise decree before the Lok Adalat in O.S.No.88/1998 is non-est and is liable to be set aside.
8. Mr. Kulkarni, learned counsel appearing for the respondents submits that terms of the compromise decree in O.S.No.88/1998 are clear inasmuch as at no point of time, petitioners claimed title to any portion of the agricultural land to an extent of 10 acres 12 guntas inasmuch as those are the terms of the compromise. He submits that in so far as 2 acres 12 guntas, a sale deed has already been executed by the Commissioner. In respect of the petition filed by the respondents in Writ Petition No.63695/2010, he submits that the order passed by the revenue authorities are liable to be :9: interfered inasmuch as the name of the assignee of the decree for specific performance cannot be entered. The same is seriously disputed by the petitioners in the companion writ petition.
9. I have given my anxious considerations to the contentions of learned counsel appearing for the parties.
10. The entire compromise petition is made available at Annexure "B" which is filed under Order XXIII Rule 3 of the Code. It refers to the conditions between the two branches of the families commencing from Special Suit 98/1931. Apparently in paras 4 and 5, the petitioners would admit the title of the respondents to the entire extent of 10 acres and 12 guntas. It is useful to extract the terms of the compromise decree: : 10 :
"3) zÁªÁ d«ÄãÀzÀ ¥ÉÊQ PɼÀUÉ «ªÀj¹zÀ ZÀPÀ§A¢ ªÀÄzsÀåzÀ°ègÀĪÀ PÉëÃvÀæ: 02 JPÀgÉ-12 UÀÄAmÉ d«ÄãÀÄ F zÁªÁzÀ°èAiÀÄ JgÀqÀ£Éà ¥ÀæwªÁ¢AiÀÄÄ C¸À® zÁªÁ £ÀA:
153:1995 £ÉÃzÀÝgÀ°è Rjâ ªÀiÁrPÉÆqÀĪÀ §UÉÎ rQæ ¥ÀqÉzÀÄPÉÆArzÀÄÝ EgÀÄvÀÛzÉ. ¸ÀzÀjà d«ÄãÀzÀ ZÀPÀ§A¢:
¥ÀƪÀðPÉÌ : azÁ£ÀAzÀ ¸ÁzsÀ¤ EªÀjUÉ ªÁ¢ £ÀA:1 RjâUÉ PÉÆlÖ 03 JPÀgÉ d«ÄãÀzÀ ºÀzÀÄÝ.
¥À²ÑªÀÄPÉÌ : EzÉà d«ÄãÀzÀ ¨ÁèPï £ÀA: 1gÀ ¥ÉÊQ ªÁ¢AiÀÄgÀ ªÀiÁ°Ìà PÀ¨ÁÓ ªÀ»ªÁnAiÀÄ°ègÀĪÀ G½zÀ 5 JPÀgÉ-00 d«ÄãÀÄ ºÁUÀÄ ¥sÁgÀä ºË¸À.
GvÀÛgÀPÉÌ : ¸ÀgÀPÁj gÀ¸ÉÛ,
zÀQëtPÉÌ :¨ÁèPï £ÀA: 2, ²æà PÁågÀPÉÆ¥Àà EªÀgÀ
dǀ̣ˀ.
F ªÉÄÃ¯É ºÉýzÀ 02 JPÀgÉ-12 UÀÄAmÉ d«ÄãÀ£ÀÄß JgÀqÀ£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢AiÀÄjAzÀ Rjâ ªÀåªÀºÁgÀzÀ ¥ÉÊQ MAzÀÄ ®PÀë gÀÆ¥Á¬Ä ºÀtªÀ£ÀÄß PÉÆlÄÖ Rjâ £ÉÆÃAzÀ : 11 : ªÀiÁr¹PÉƼÀîvÀPÀÌzÀÄÝ. ¸ÀzÀjà Rjâ RZÀð£ÀÄß JgÀqÀ£Éà ¥ÀæwªÁ¢AiÉÄà ªÀ»¹PÉƼÀîvÀPÀÌzÀÄÝ.
4) ªÉÄÃ¯É ºÉýzÀ JgÀqÀ£Éà ¥ÀæwªÁ¢AiÀÄÄ ªÁ¢AiÀÄgÀ ªÉÄÃ¯É ªÀiÁrzÀ C.zÁªÁ £ÀA: 153:1995 EzÉà PÉÆÃnð£À DzÉñÀzÀ (rQæ) «gÀÄzÀÞ F zÁªÁzÀ°èAiÀÄ ªÁ¢AiÀÄgÀÄ ªÀiÁ£Àå PÀ£ÁðlPÀ GZÀÑ £ÁåAiÀiÁ®AiÀÄ ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀ°è Dgï.J¥sï.E.£ÀA:1438:2004 ¸À°è¹zÀÝ£ÀÄß ©£ï vÀPÀgÁgÀÄ ¥ÀgÀvÀ vÉUÉzÀÄPÉƼÀîvÀPÀÌzÀÄÝ. ªÀiÁ£Àå PÀ£ÁðlPÀ GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ°è ZÁ°ÛAiÀÄ°ègÀĪÀ DgÀ.J¥sï.J. ¥ÀæPÀgÀtªÀ£ÀÄß »AvÉUÉzÀÄPÉÆAqÀ ¢£À¢AzÀ ºÀ¢£ÉÊzÀÄ ¢£ÀUÀ¼À M¼ÀUÁV Rjâ¥ÀvÀæªÀ£ÀÄß ªÀiÁqÀ¨ÉÃPÀÄ.
5) zÁªÁ D¹ÛAiÀÄ ¥ÉÊQ ¥À²ÑªÀÄ ¨sÁUÀzÀ 05 JPÀgÉ d«ÄãÀzÀ ªÉÄÃ¯É ºÁUÀÆ CzÀgÀ°ègÀ§ºÀÄzÁzÀ ¤¢ü ¤PÉëÃ¥À, vÀgÀÄ, PÁµÀÖ, PÉƼÀªÉ¨sÁ«, VqÀ, ªÀÄgÀ, ¨É¼ÉUÀ¼À ªÉÄÃ¯É ¥ÀæwªÁ¢ MAzÀÄ ºÁUÀÆ JgÀqÀ£ÉÃzÀªÀgÀzÀÄ ºÁUÀÄ CªÀgÀ ªÀA±ÀdgÀzÀÄ AiÀiÁªÀÅzÉà jÃw ºÀPÀÄÌ, »vÀ ¸ÀA§AzsÀ EgÀĪÀÅ¢®è. ºÁUÀÆ ¸ÀzÀjà d«ÄãÀÄ ªÁ¢AiÀÄgÀ ¸ÀéAvÀ ªÀiÁ°Ìà ºÀQÌ£À d«ÄãÀÄ CAvÁ ¸Àé¸ÀAvÉÆõÀ¢AzÀ M¦àPÉƼÀÄîvÁÛgÉ. ¸ÀzÀjà d«ÄãÀ£ÀÄß ªÁ¢AiÀÄgÀÄ ºÁUÀÆ CªÀgÀ ªÀA±ÀdgÀÄ E£ÀÄß ªÀÄÄAzÉ vÀªÀÄä ªÀÄfð ¥ÀæPÁgÀ : 12 : ªÀ»ªÁl G¥À¨sÉÆÃUÀ ªÀiÁqÀvÀPÀÌzÀÄÝ. ªÁ¢AiÀÄgÀ ªÀiÁ°Ìà PÀ¨ÁÓ ªÀ»ªÁlPÉÌ ¥ÀæwªÁ¢AiÀÄgÀzÀÄ ºÁUÀÆ CªÀgÀ ªÀA±ÀdgÀzÀÄ ¸ÀzÀjà zÁªÁ D¹ÛAiÀÄ ªÉÄÃ¯É AiÀiÁªÀÅzÉà jÃw ºÀPÀÄÌ, »vÀ¸ÀA§AzsÀ EgÀĪÀÅ¢®è JAzÀÄ ¥ÀÆtð w¼ÀĪÀ½PɬÄAzÀ ºÁUÀÆ ¸Àé¸ÀAvÉÆõÀ¢AzÀ M¦àPÉƼÀÄîvÁÛgÉ."
11. The terms of the compromise decree are once again summarised in para No.6 wherein the petitioners would concede to the fact that they do not have any share in the suit schedule property. A copy of the plaint is made available and the claim of the respondents in the suit is they are owners of the suit property at Hosayellapur in Dharwad district. A perusal of the compromise decree discloses that the decree for specific performance in O.S.No.153/1995 is part of the compromise decree.
12. Grievance of the petitioners appears to be that all the parties to the lis are in the evening of their : 13 : life and execution proceedings are being dragged. It is to be noticed that the decree passed in O.S.No.88/1998 as well as in 153/1995 have already been executed and the executing Court pursuant to the order dated 31st January 2009 in Execution 277/2008 has directed delivery of possession.
13. I am of the view that once the decree is already executed, the question of setting aside the compromise decree arrived at before the Lok Adalat does not arise at all. Indeed the petitioners have not made out any ground for interference inasmuch as they have not alleged coersion, fraud or mis-representation inasmuch as they have accepted the decree and filed execution proceedings for executing the decree. Hence, I am of the view that the question of interference does not arise insofar as the writ petition filed by the respondents is concerned. I am of the view that the : 14 : orders passed by the revenue authorities directing entering name of the assignee to the decree for specific performance cannot be faulted inasmuch as the respondents cannot have any say in the matter. Consequently, the orders passed by the revenue authority does not warrant interference. Having said so, the following order is passed:
Both the petitions stand rejected.
Sd/-
JUDGE kmv