Karnataka High Court
Smt. Renuka W/O Malakari Mali, vs Smt. Vijayalaxmi on 20 August, 2019
Author: K.Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
REGULAR SECOND APPEAL NO.6088/2010 (PAR)
C/.W.
REGULAR SECOND APPEAL NO.5835/2010 (PAR)
IN RSA NO 6088 OF 2010
BETWEEN:
1. SMT. RENUKA W/O MALAKARI MALI,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O KUMBAR HALL, TQ. JAMKHANDI
DIST. BAGALKOT.
2. SMT. MAHADEVI W/O UMESH HULLUR,
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O HOSUR, TQ. JAMKHANDI,
DIST. BAGALKOT.
... APPELLANTS
(BY SRI. ANIL KALE, ADVOCATE)
AND:
1. SMT. VIJAYALAXMI
W/O PARASHURAM MENDIGERI,
AGE: 27 YEARS, OCC: HOUSEHOLD,
R/O HUNNUR, TQ. JAMKHANDI,
DIST. BAGALKOT.
2. KUMAR. VIVEKANAND
AGE: 5 YEARS,
2
3. KUMARI. SAVITRI
AGE: 8 YEARS,
RESPONDENT NOS.2 AND 3
ARE MINORS REP.BY THEIR
MOTHER RESPONDENT NO.1.
4. TIPPANNA S/O DHAREPPA MENDIGERI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O JAMKHANDI, DIST. BAGALKOT.
5. SHRI. CHIDANAND S/O AJJAPPA MALI,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O JAMKHANDI, DIST. BAGALKOT.
6. SHRI. DHAREPPA S/O TIPPANNA MENDIGERI,
AGE: 20 YEARS, OCC: AGRICULTURE,
R/O JAMKHANDI, DIST. BAGALKOT.
7. SMT. SUSHILAVVA W/O TIPPANNA MENDIGERI,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O JAMKHANDI, DIST. BAGALKOT.
... RESPONDENTS
(BY SRI. G I GACHCHINAMATH, ADVOCATE FOR R1;
(R2 AND R3 MINOR REP.BY R-4)
SRI. S. C.BHUTI, ADVOCATE FOR R4;
SRI. DINESH M. KULKARNI, ADVOCATE FOR R5;
SRI. M. C. HUKKERI, ADVOCATE FOR R7;
; R6 - DECEASED)
THIS RSA IS FILED U/SEC.100 R/W. 106 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED:22-03-2010,
PASSED IN R.A.NO.67/2008, ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, JAMKHANDI, AT JAMKHANDI,
DISMISSING THE APPEAL AGAINST THE JUDGEMENT AND
DECREE DATED:17-04-2008, PASSED IN O.S.NO.105/2005, ON
THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) JAMKHANDI,
DECREEING THE SUIT FILED FOR DECLARATION AND
INJUNCTION.
3
IN RSA NO. 5835 OF 2010
BETWEEN:
CHIDANAND
S/O AJJAPPA MALI,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O JAMKHANDI,
DIST. BAGALKOT.
... APPELLANT
(BY SRI.DINESH M. KULKARNI, ADVOCATE (NOC))
AND:
1. TIPPANNA
S/O DHAREPPA MENDIGERI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O KUDCHI ROAD, JAMKHANDI-587301,
DIST. BAGALKOT.
2. SMT. VIJAYALAXMI
W/O PARASHURAM MENDIGERI,
AGE: 27 YEARS, OCC: HOUSE WIFE,
R/O HUNNUR, JAMKHANDI,
DIST. BAGALKOT-587301.
3. KU. VIVEKANAND
MINOR S/O LATE PARASHURAM MENDIGERI,
REP. BY MOTHER,
RESPONDENT NO.2.
4. KU. SAVITRI
MINOR D/O LATE PARASHURAM MENDIGERI,
REP. BY MOTHER, RESPONDENT NO.2.
5. SMT. RENUKA
W/O MALAKARI MALI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: KUMBARAHALLA, TQ. JAMKHANDI,
DIST. BAGALKOT-587301.
4
6. SMT. MAHADEVI
W/O UMESH HALLUR,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O HOSUR, TQ. JAMKHANDI,
DIST. BAGALKOT.
7. KU. DHAREPPA
D/O TIPPANNA MENDIGERI,
AGE: 22 YEARS, OCC: HOUSEHOLD,
R/O JAMKHANDI,
DIST. BAGALKOT.
(DEAD AND HIS LRS ARE
RESPONDENT NOS.1 AND 8, THEY ARE
ALREADY ON RECORD)
8. SMT. SUSHILAVVA
W/O TIPPANNA MENDIGERI,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O JAMKHANDI,
DIST. BAGALKOT.
... RESPONDENT(S)
(By SRI: S C BHUTI, ADV. FOR R1
SRI G.I.GACHCHINAMATH, ADV. FOR R2- R4
R-3 AND 4 ARE MINORS REP. BY R-2
SRI ANIL KALE, ADV. FOR R5 AND R6
R-7 DECEASED
SRI M.C.HUKKERI, ADV. FOR R-8)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED:22-03-2010, PASSED IN
R.A.NO.57/2008, ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT, JAMKHANDI, AT JAMKHANDI,
DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT
DATED:17-04-2008 AND THE DECREE PASSED IN
O.S.NO.105/2005, ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) JAMKHANDI, AT JAMKHANDI, DECREEING THE SUIT
FILED FOR DECLARATION AND INJUNCTION
THESE APPEALS COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
5
JUDGMENT
The plaintiffs/respondents in both these appeals have filed O.S.No.105/2005 before the Principal Civil Judge (Sr.Dn.), Jamkhandi for declaration of title and injunction as against the appellant and other respondents. The trial Court decreed the suit and the appeal preferred by the defendants in RA No.57/2008 and R.A.No.67/2008 came to be dismissed. Being aggrieved, the defendant No.2 has preferred RSA No.5835/2010 and defendants No.3 and 4 have filed RSA No.6088/2010 before this Court.
2. Appellants in both the cases are present before the Court along with their counsels. The respondent Nos.1, 2 are present and on behalf of respondent Nos.3, and 4, respondent Nos. 5, 6 and 8 are present before the Court.
63. Counsel for both the parties filed a joint compromise petition under Order 23 Rule 3 of CPC.
4. Heard and perused the compromise petition.
5. The respondent Nos.2 to 4 are the plaintiffs and they have filed a suit in O.S.No.105/2005 on the file of the Principal Civil Judge (Sr.Dn.), Jamkhandi for declaration of title and injunction as against the appellant and other respondents in respect of suit land SY.No.33/1/1A measuring 3 acres 37 guntas and in the appeal the appellant is defendant No.2 and respondent No.1 is defendant No.1 and respondent Nos.2 to 4 are the plaintiffs and respondent No.8 is defendant No.6 before the trial Court. The respondent No.7 who is original defendant No.5 before the trial Court has died during the pendency of the appeal and he was unmarried and his name was deleted from the case.
6. The parties in the case are referred to their rankings in the suit.
77. The learned Principal Senior Civil Judge, Jamkhandi, by its judgment and decree dated 17.04.2008 is decreed the suit of the plaintiff as against the judgment passed by the trial Court, the defendant Nos.1 and 2 have filed an appeal in R.A.No.57/2008 and defendant Nos.3 and 4 also filed an appeal in R.A.No.67/2008. The learned District and Sessions Judge and FTC, Jamkhandi, by its judgment and decree dated 22.03.2010 has dismissed the said appeals and confirmed the judgment and decree passed by the trial Court. Hence, defendant No.2 filed RSA No.5835/2010 and defendant Nos.3 and 4 field RSA No.6088/2010.
Both the appeals arise out of the common judgment passed by the trial Court.
8. Pending consideration of these appeals, original defendant No.5-Dhareppa in the suit died leaving behind his legal heirs as parents, defendant Nos.1 and 8 are legal heirs and he was unmarried and 8 he was respondent No.7 in RSA No.5835/2010 and respondent No.6 in other appeal in RSA No.6088/2010 and he has been deleted from the cause list.
9. Plaintiff and defendant Nos.1 to 4 and 6 filed suit in O.S.No.105/2005 appeared before the Court filed compromise petition under Order 23 Rule 3 of CPC.
10. Pending consideration of these appeals, the parties have appeared before the Court and filed compromise petition under Order 23 Rule 3 of CPC.
11. All the parties submits that they have entered into amicable settlement of the dispute involved in the above case at the intervention of the elders and well wishers of their families and they are submitting herewith the compromise petition duly signed by them as well as their respective advocates. The terms of the compromise entered into by them are as under:
9a) The suit land Sy.No.33/1A measures 03A - 37 Gs. It is hereby agreed by the plaintiffs and defendants No.1 to 4 and 6 that out of this land, the two portions shown by red colour in the hand sketch annexed to this compromise petition and marked by letters 'I' and 'II' and demarcated by letters 'PQRS' and 'TUVW' in the sketch are given to the share of the defendant No.2 Chidanand Ajjappa Mali. The sketch annexed to this compromise petition is agreed to be treated as part of the compromise petition. The details of the said two portions of lands given to the defendant No.2 are as under:
(i) 'PQRS' portion marked as 'I' in the sketch is situated towards the north side in Sy.No.33/1A and this portion measures 'PQ' 22.75 mtrs 'QR' 45.30 mtrs, 'RS' 22.75 mtrs and 'SP' measures 43.60 mtrs and this portion is bounded as under:
To East : Remaining portion of land of plaintiffs 10 To West : Remaining portion of land of plaintiffs To North : Kudchi-Jamakhandi Road To South : Remaining portion of land of plantiffs.
It is hereby agreed by the plaintiffs and defendants No.1 to 4 and 6 that the portion of land on the western side pf 'PQRS' measures 31.20 mtrs West to East between 'A' and 'P' points and it is agreed to be ownership of the plaintiffs.
(ii) 'TUVW' portion shown by red colour and marked as 'II' in the sketch is situated towards the South-East side of Sy.No.33/1A and it measures 'TU' 25.70 mtrs, 'UV' 37.90 mtrs, 'VW' 27.70 mtrs and 'WT' measures 36.60 mtrs and this portion is bounded as under:
To East : Public Road
To West : Remaining portion of land of
plaintiffs
To North : Remaining portion of land of
plaintiffs
11
To South :Remaining portion of land of
plaintiffs.
It is hereby agreed by the plaintiffs and defendants No.1 to 4 and 6 that the portion of land on the Southern side pf 'TUVW' measures 20.00 mtrs South to North between 'F' and 'U' points and it is agreed to be ownership of the plaintiffs.
The plaintiffs and the defendants No.1 to 4 and 6 do hereby agree and admit that the defendant No.2 is lawful owner and he has been in possession and enjoyment of the above said two portions of the lands marked as 'PQRS' and TUVW with the measurements as mentioned above and shown in the sketch. It is further agreed that the said two portions marked as PQRS and TUVW are measuring 10 guntas each in size.
The plaintiffs and defendants No.1, 3, 4and 6 will have no objection for the defendant No.2 to get his name duly 12 entered in the RTC extracts and other revenue records of the above said two portions of land in Sy.No.33/1A by giving appropriate application and Waradi to the Revenue Authorities. It is further agreed that, the plaintiffs and defendants No.1, 3, 4 and 6 would lend their signature to the Wardi and co- operate and assist the defendant No.2 for getting his name entered in the Revenue records and RTC extracts.
That the defendant No.2 had purchased a portion of 25 guntas on the Northern side out of Sy.No.33/1/1A, totally measuring 03A - 37 guntas, from the defendant No.1 by Registered Sale Deed dated 02.04.2005. In lieu of the two portions of land measuring 10 guntas each marked as PQRS and TUVW as shown in the sketch being given to his share, the defendant No.2 do hereby agree and admit that he would give up his claim on the basis of Sale Deed dated 02.04.2005 and he would not 13 enforce the above said Sale deed and he has agreed to take the above said PQRS and TUVW portions as shown in the sketch as his land and he has become exclusive owner of the above said two portions of lands.
b) It is further agreed by the plaintiffs and the defendants No.1, 2 and 6 that the defendants No.3 and 4 are the daughters of defendant No.1 from his first wife, late Smt. Savitri. It is hereby agreed by the plaintiffs and the defendants No.1, 2 and 6 that out of the suit land Sy.No.33/1A measuring 03A - 37 Gs, the portions shown by green colour in the hand sketch annexed to this Compromise petition and marked by letter 'III' and demarcated by letters 'MNOL' in the hand sketch is given to the share of the defendant No.3 and 4 Smt. Renuka W/o. Malakari Mali and Smt. Mahadevi Umesh Hallur. The details of the portion of land given to the defendant No.3 and 4 is as under:
14(i) 'MNOL' portion marked as 'III' in the sketch is situated towards the West side in Sy.No.33/1A and this portion measures 'MN' 44.40 mtrs 'NO' 18.20 mtrs, 'OL' 43.50 mtrs and 'LM' measures 18.20 mtrs and this portion is bounded as under:
To East : Remaining portion of land of plaintiffs To West : Public Road To North : Remaining portion of land of plaintiffs To South : Remaining portion of land of plaintiffs It is hereby agreed by the plaintiffs and defendants No.1 to 4 and 6 that the portion of land on the southern side of 'MNOL' measures 16 mtrs South to North between 'K' and 'L' points and it is agreed to be ownership of the plaintiffs. It is hereby agreed by the Plaintiffs and defendants No.1, 2 and 6 that the above said 'MNOL' portion would be of the joint ownership of the defendants No.3 and 4.The plaintiffs and defendants No.1, 2 and 6
do hereby agree and admit that the 15 defendants No.3 and 4 are the lawful owners and they have been in possession and enjoyment of the above said portion of the land marked as 'MNOL' as shown by green colour in the sketch. It is further agreed that the said 'MNOL' portion is measuring 8 guntas.The plaintiffs and defendants No.1, 2 and 6
will have no objection for defendants No.3 and 4 to get their names duly entered in the RTC extracts and other revenue records of the above said 'MNOL' portion in Sy.No.33/1A by giving appropriate application and Wardi to the Revenue Authorities. It is further agreed that, the plaintiffs and defendants No.1, 2 and 6 would lend their signature to the wardi and co-operate and assist the defendant No.3 and 4 for getting their names entered in the revenue records and RTC extract to the above said 'MNOL' portion of land.
c) It is further agreed and admitted by the defendants No.1 to 4 and 6 that the plaintiffs No.1 to 3 are the lawful owners and they are in possession and enjoyment of remaining portion of land 16 in Sy.No.33/1A, except the above mentioned three portions of land marked as 'I', 'II', 'III' and shown by letters 'PQRS', 'TUVW' and 'MNOL' shown by red and green colours in the sketch, which have been given to the defendant No.2, 3 and 4 as stated supra.
That the defendants No.1 to 4 and 6 will have no objection for the plaintiffs to get their names duly entered in the RTC extracts and other revenue records of the above said remaining portion in Sy.No.33/1A, except the above mentioned three portions of lands marked as 'I', 'II', 'III' and shown by letters 'PQRS', 'TUVW' and 'MNOL' shown by red and green colours in the sketch, which have been given to the defendants No.2, 3 and 4, by giving appropriate application and wardi to the revenue authorities. It is further agreed that, the defendants No.1 to 4 and 6 would lend their signature to the wardi and co-operate and assist the plaintiffs 17 for getting their names entered in the revenue records and RTC extracts for the above said portion of the suit land.
d) It is hereby agreed by the plaintiffs and the defendants No.1 to 4 and 6 herein that between same parties involved in these appeals another appeal in RSA No.6147/2010 is pending on the file of the Hon'ble Court. The respondents No.5 and 6 herein have filed the said suit in O.S.No.53/2008 before the Prl. Senior Civil Judge, Jamkhandi, praying for partition and separate possession for their share in the suit schedule property. The said suit has been dismissed and appeal in R.A.No.84/2009 has also been dismissed by the Hon'ble Fast Tract Court, Jamkhandi. Hence the respondents No.5 and 6 herein have filed the said appeal in RSA No.6147/2010. The suit property and the parties involved in both the cases are same. In view of the amicable 18 settlement of dispute between the parties as per the above said compromise petition filed herein, it is hereby agreed by the plaintiffs and defendants No.1 to 4 and 6 that the dispute involved in RSA No.6147/2010 arising out of judgment and decree passed in O.S.No.53/2008 and RA No.84/2009 is also amicably settled between the parties. It is hereby agreed by the plaintiffs and defendants No.1 to 4 and 6 herein that they would file an appropriate memo in RSA No.6147/2010 praying for disposal of the said appeal as amicably settled as per the compromise decree passed in the above said appeals under which the respondents No.5 and 6 herein who are the appellants in RSA No.6147/2010 have been given the portion of land marked as 'MNOL' marked as 'III' shown by green colour in Sy.No.33/1A. That the plaintiffs and defendants No.1 to 4 and 6 do hereby pray that this Hon'ble court may be pleased to dispose of the 19 said appeal in RSA No.6147/2010 also as amicably settled in view of compromise settled in the above appeals.
e) It is hereby agreed that the plaintiffs and the defendants No.2 and 3 to 4, would enjoy the respective portions of the suit land in Sy.No.33/1A of Honnur village, that have been given to them as stated above as absolute owners.
f) It is hereby agreed and admitted by the plaintiffs and the defendants No.1 to 4 and 6 that they would not have any further claims against each other hence forth.
g) That the plaintiffs and the defendants No.1 to 4 and 6 have entered into this compromise with full knowledge voluntarily and out of their free will after understanding the terms of compromise."
12. In terms of the compromise between the parties, the judgment and decree passed by the 20 Principal Civil Judge(Sr.Dn.), Jamkhandi in O.S.No.105/2005 dated 17.04.2008 and judgment and decree passed by the District and Sessions Judge, Fast Track Court, Jamakhandi in R.A.No.67/2008 dated 22.03.2010 are hereby modified.
The appeal is disposed of in terms of the compromise. Draw up decree accordingly. The sketch annexed by the counsel along with the compromise petition is part and parcel of the compromise decree.
SD/-
JUDGE msr