Karnataka High Court
Sri Praveen Annasaheb Gijavani vs Sri Appasaheb Bharmappa Gijavani on 12 August, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2025:KHC-D:10073-DB
RFA No. 100143 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF AUGUST 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100143 OF 2022 (DEC/PAR-)
BETWEEN:
SRI. PRAVEEN ANNASAHEB GIJAVANI,
AGE: 21 YEARS, OCC: STUDENT,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
...APPELLANT
(BY SRI. H.R. DESHPANDE, ADVOCATE)
AND:
1. SRI. APPASAHEB BHARMAPPA GIJAVANI,
AGE: 68 YEARS, OCC: AT PRESENT NIL,
YASHAVANT
NARAYANKAR R/O. PLOT NO.8, R.S. NO.694/2,
SHIVADEEP COLONY, RANI CHANNAMMA NAGAR,
Digitally signed by
YASHAVANT
NARAYANKAR
BELAGAVI-590008, DIST: BELAGAVI.
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
DHARWAD
2. SRI. ANNASAHEB BHARMAPPA GIJAVANI,
AGE: 54 YEARS, OCC: AT PRESENT NIL,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
3. SMT. SHEELA W/O. ANNASAHEB GIJAVANI,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
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NC: 2025:KHC-D:10073-DB
RFA No. 100143 of 2022
HC-KAR
4. SMT. ROHINI W/O. AMOL NARASHETTI,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O. BORAGAON VILLAGE-591 216,
TQ: CHIKKODI, DIST: BELAGAVI.
5. SRI. PRADEEP ANNASAHEB GIJAVANI,
AGE: 25 YEARS, AGRICULTURE & BUSINESS,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
6. SRI. CHAMPAKKA W/O. SUBHASH HANCHIBATTE,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. AINAPUR VILLAGE-591 303,
TQ: ATHANI, DIST: BELAGAVI.
7. SMT. PADMAVATI W/O. BHUPAL CHOUGULE,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
...RESPONDENTS
(NOTICE TO R1-R5 AND R7 SERVED;
NOTICE TO R6 HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO,
SET ASIDE THE ORDERS ON ISSUE NO.1 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE HUKKERI IN O.S.NO.78/2019 DATED
27.10.2021 AND THE DECREE DRAWN THEREIN IN INTEREST OF
JUSTICE AND EQUITY AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.08.2025 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
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NC: 2025:KHC-D:10073-DB
RFA No. 100143 of 2022
HC-KAR
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 19081, by the plaintiff challenging the judgment and decree dated 27.10.2021 passed in O.S.No.78/2019 on the file of Senior Civil Judge, Hukkeri2, whereunder, the suit filed by the appellant/plaintiff was dismissed as not maintainable by the Trial Court, having answered Preliminary Issue No.1 in the affirmative.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. The factual matrix in a nutshell leading to the present appeal is that the plaintiff filed the suit for a relief of declaration, that the compromise decree dated 25.04.1992 passed in O.S.No.99/1992 by the Munsiff 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'Trial Court' -4- NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR Court, Hukkeri as inequitable, unfair, unjust and for reopening the partition as also seeking for fresh partition in the suit properties by awarding 1/10th share of the plaintiff in the suit properties. It is the case of plaintiff in the suit that the propositus was one Bharmappa Appanna Gijavani. The genealogy of the family of the plaintiff and defendants from their propositus is as under:
Bharamappa Appanna Gijavani (died in 1999) =Smt. Ammavva (wife) (died in 2017) Appasaheb Champakka Annasaheb Padmavati (D1) (D6) (D2) (D7) =Smt. Sheela (D3) Rohini Pradeep Praveen (D4) (D5) (plaintiff)
4. It is the case of plaintiff that the joint family of plaintiff and defendants headed by the propositus owned the suit properties, and that the propositus personally -5- NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR cultivated the joint family properties and managed the joint family out of the said joint family income. That the propositus, being karta of the joint family, was also running a Kirana (Grocery) shop in one of the suit properties as also purchased a goods truck, which he used to give on hire basis to transport goods and was thus earning a good income from all the said sources. That, from and out of the joint family income, further properties were purchased. That the propositus died in the year 1990-91 and the elder son, namely Appasaheb (defendant No.1), was managing the affairs of the joint family as well as the suit properties. That the father of the plaintiff i.e., Annasaheb (defendant No.2), was mentally retarded, incapable of taking independent decisions and was doing work only under the supervision and directions of others and he used to blindly follow the directions of defendant No.1. That defendant No.1 acquired a dominant position in the joint family. That the plaintiff having attained majority, a few months prior to the suit, after making enquiries -6- NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR realized that, defendant No.1, taking advantage of the situation, appropriated various joint family properties for himself. That defendant No.1 filed a suit in O.S.No.99/1992 on the file of I Additional Civil Judge and C.J.M., Hukkeri, for partition and separate possession of the joint family properties on 24.04.1992 and on the next day itself, i.e., on 25.04.1992, he took his parents as well as defendant No.2 (Annasaheb) to Hukkeri, by stating that their presence is required for executing power of attorney in his favour for managing the affairs of the joint family properties. That, since his parents and brother were fully depending upon him and his direction, they accompanied him to Hukkeri and affixed their signatures and thumb impression wherever required by the defendant No.1. That defendant No.1 got their signatures on vakalath and compromise petition on 25.04.1992, whereunder, he took half share of the suit properties, although he was entitled to only 1/4th share. That it was falsely mentioned in the compromise petition that he had given ₹75,000/- cash to -7- NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR his brother i.e., defendant No.2, when he had no independent income for giving the said amount. That the compromise petition was obtained without the knowledge and consent of his parents and his brother Annasaheb and hence, is not binding on the plaintiff. That defendant No.1 also got executed a registered mortgage deed in respect of the joint family lands in favour of the bank and also under the guise of getting registered mortgage deed, got registered Sale Deeds dated 18.06.1997 and 29.04.2002.
That defendant No.1 is a shrewd and cunning person and has got created records illegally by taking advantage of the fact that the propositus was suffering from ill-health and the father of plaintiff was a mentally retarded person. Hence, the plaintiff filed the suit seeking for the following reliefs:
"The plaintiff, therefore, prays that setting aside the contentions of the defendants, a decree be passed:
(a) Partition purported to be effected under the Compromise-Decree dated 25.04.1992 -8- NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR passed by the Hon'ble Court of the Munsiff, Hukkeri in O.S.No.99/1992 be declared as inequitable, unfair, ad unjust and set aside and the partition in the suit properties may kindly be reopened and the share of the plaintiff in the suit properties may kindly ordered to separated by effecting partition by metes and bounds in the same,
(b) Awarding separate possession of the plaintiff's share as ordered to be separated in clause (a) above,
(c) Awarding full costs of this suit to the plaintiff from the defendant/s,
(d) Granting to the plaintiffs any other relief to which he is found entitled to under the facts and circumstances of the case."
5. The defendants entered appearance in the suit and contested the same by filing written statement, whereunder, the case of the plaintiff was denied. The Trial Court, consequent to the pleadings of the parties, has framed ten issues and issue No.1 was treated as a preliminary issue, which reads as follows: -9-
NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR
1. "Does the defendant No.1 proves that the plaintiff was born on 17.09.1999 thus he has no right to question the compromise decree in O.S.No.99/1992 dated 25.04.1992?"
6. The Trial Court took up the preliminary issue for disposal. The defendant No.1 adduced evidence as DW.1 and marked Exs.D1 to Ex.D15 in support of issue No.1. The plaintiff did not adduce any evidence. The Trial Court answered issue No.1 in the affirmative and dismissed the suit. Being aggrieved, the plaintiff has preferred the present appeal.
7. The learned counsel Sri.H.R. Deshpande appearing for the appellant/plaintiff vehemently contends that the order of the Trial Court is erroneous and liable to be interfered inasmuch as the Trial Court has only adjudicated upon issue No.1, without adjudicating upon the other issues. It is further contended that the plaintiff has, apart from the relief that the compromise decree passed in O.S.No.99/1992, is not binding on him, has also sought for setting aside the Sale Deeds dated 18.06.1997
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR and 29.04.2002. Hence, he seeks for allowing of the appeal and granting of the reliefs sought for.
8. The respondents are served and unrepresented.
9. The submissions of the learned counsel for the appellant/plaintiff have been considered and the material on record including the records of the Trial Court has been perused. The question that arise for consideration is:
"Whether the order dated 27.10.2021 passed by the Trial Court is erroneous and liable to be interfered with?"
10. It is pertinent to note that the genealogy as set out by the plaintiff vis-à-vis the relationship between the parties is undisputed. It is further a matter of record that Appasaheb (defendant No.1 in the present suit) instituted O.S.No.99/1992, wherein, the propositus was arrayed as defendant No.1, the wife of propositus was arrayed as defendant No.2 and the father of plaintiff namely Annasaheb (who was arrayed as defendant No.2 in the present suit) as defendant No.3. It is further forthcoming
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR that in the said suit, a compromise decree dated 25.04.1992 was passed.
11. The Trial Court, while considering issue No.1, has recorded the following finding:
"So, in the present case also the plaintiff was not born as on the date of the compromise decree passed in O.S.No.99/1992 on 25.04.1992 and sales in favour of the defendant No.1 under the registered sale deeds, as such the plaintiff has no right to question the partition and alienations made by his father. Hence, in view of the law laid down by the Hon'ble Supreme Court in the above referred decisions, the suit of the plaintiff is not maintainable. Therefore, even assuming for the sake of argument the suit properties are joint family properties, but the father and grandparents of the plaintiff have not challenged the compromise decree passed on 25.04.1992 in O.S.No.99/1992 and sale deeds of suit properties till today. Further, the said compromise decree and sale deeds are registered and public documents having a greater probative value. Therefore, under such circumstances, the story narrated by the plaintiff in the plaint is appears to be created for the purpose of filing this suit. So, looked with all angles an irresistible conclusion that could be arrived is that, very suit of the plaintiff is not
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR maintainable in law. The cause of action as shown by the plaintiff for filing this suit is appears to be very doubtful. Therefore, it appears that, now the price of suit properties is raised and it is fetching higher value, as such plaintiff after laps of 27 years from the date of compromise decree has filed this false suit for getting illegal gain. Therefore, the plaintiff has not approached this court with clean hands. Hence, for all these reasons, I am of the opinion that, the defendant No.1 has proved that, the suit is barred under law and the plaintiff has no right to question the compromise decree passed in O.S.No.99/1992 on 25.04.1992. Further, looking to the facts and circumstances of the case and conduct of the plaintiff, there are no justifiable grounds to reject the costs. Therefore, I answer this preliminary issue No.1 in favour of defendant No.1 and proceed to pass the following:
ORDER The preliminary Issue No.1 is answered in the affirmative.
Consequently, suit of the plaintiff is
hereby dismissed with cost, as not
maintainable."
(emphasis supplied)
12. It is forthcoming from the aforementioned that admittedly the father of the plaintiff namely Annasaheb,
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR who was arrayed as defendant No.2 in the present suit, was arrayed as defendant No.3 in O.S.No.99/1992. The plaintiff, who claims through Annasaheb, is seeking for a relief of declaration that the compromise decree passed in O.S.No.99/1992 be declared as inequitable, unfair and unjust, as also for setting aside of the same and other reliefs. At this juncture, it is relevant to notice Order XXIII Rule 3 and Rule 3-A of the CPC, which reads as follows:
3. "Compromise of suit.-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement 3 or compromise [in writing and signed by the parties], or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith 4[so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit]:3
Ins. by Act 104 of 1976, sec. 74(iii)(a) (w.e.f. 1-2-1977).4
Subs. by Act 104 of 1976, sec. 74(iii)(b), for "so far it relates to the suit" (w.e.f. 1-2-1977).
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR 5 [Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] 6 [Explanation.-An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.] 3A. Bar to suit.- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."
13. The Hon'ble Supreme Court in the case of Pushpa Devi Bhagat (Dead) Through LR Sadhna Rai (Smt) Vs. Rajinder Singh and Others7, considering the scheme of Order XXIII Rule 3 and Rule 3-A of the CPC, held as follows:
"17. The position that emerges from the amended provisions of Order 23 can be summed up thus:5
Ins. by Act 104 of 1976, sec. 74(iv) (w.e.f. 1-2-1977).6
Ins. by Act 104 of 1976, sec. 74(v) (w.e.f. 1-2-1977).7
2005 (5) SCC 566
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(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order
23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27- 8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code."
(emphasis supplied)
14. The Hon'ble Supreme Court in the case of Triloki Nath Singh Vs. Anirudh Singh (D) Thr. Lrs and Ors8, after noticing its earlier judgment in the case of Pushpa Devi Bhagat7, considering a fact situation, wherein, another suit was filed by a member of a joint 8 AIR 2020 SUPREME COURT 2111
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR family, who was not a party to the compromise, held as follows:
"22. In other words, the appellant can only claim through his predecessor Sampatiya, to the extent of rights and remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil Court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other Court under proviso to Rule 3 of Order 23 CPC. It must, therefore, follow that the suit instituted before the civil Court by the appellant was not maintainable in view of specific bar under Rule 3A of Order 23 CPC as held in the impugned judgment."
(emphasis supplied)
15. Hence, it is clear that it is not open to the plaintiff to file O.S.No.78/2019 challenging the
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NC: 2025:KHC-D:10073-DB RFA No. 100143 of 2022 HC-KAR compromise decree passed in O.S.No.99/1992. Recourse of the plaintiff, if any, is to be availed in accordance with Order XXIII Rule 3 of the CPC, as also the legal position as noticed above. Hence, the question framed for consideration is answered in the 'negative'.
16. In view of the aforementioned discussion, the above appeal is dismissed as being devoid of merit, reserving liberty to the plaintiff to avail such other remedies as permissible under law subject to all just exceptions.
Sd/-
(S.R. KRISHNA KUMAR) JUDGE Sd/-
(C.M. POONACHA) JUDGE PMP CT-MCK List No.: 1 Sl No.: 1