Karnataka High Court
Sri Ameensab S/O Saipansab Takkali vs Nabisab S/O Kasheemsab Walikar @ Aland on 24 September, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 24TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
RSA.No.1046/2006
C/W
RSA NO.7134/2012
IN RSA NO.1046/2006
BETWEEN:
SRI.AMEENSAB
S/O SAIPANSAB TAKKALI
AGE:30, OCC:MECHANIC
R/O SINDAGI TOWN, SINDAGI
PIN 586 125 ...APPELLANT
(BY SRI:SUDHEER KULKARNI, ADVOCATE)
AND:
1. NABISAB
S/O KASHEEMSAB WALIKAR @ ALAND
AGE:57 YEARS, OCC:AGRICULTURE
R/O TUKIYA GALLI
SINDAGI - 586 128
2. SMT.HASIMBEE
W/O NABISAB WALIKAR @ ALAND
AGE:43 YEAS, OCC:HOUSEHOLD WORK
R/O TUKIYA GALLI
SINDAGI - 586 128
...RESPONDENTS
(BY SRI:G G CHAGASHETTI, ADVOCATE)
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RSA NO.1046/2006 IS FILED UNDER SECTION 100 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED
30.01.2006 PASSED IN RA NO.102/2005 ON THE FILE OF THE
PRESIDING OFFICER, FTC-I, BIJAPUR ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
08.10.2004 PASSED IN OS NO.156/2002 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) AND JMFC, SINDAGI.
IN RSA NO.7134/2012
BETWEEN:
SMT.HASIMBEE
W/O NABISAB WALIKAR
AGE:48 YEAS, OCC:HOUSEHOLD
R/O SINDAGI
TQ:SINDAGI
DIST:BIJAPUR - 586 101
... APPELLANT
(BY SRI:G G CHAGASHETTI, ADVOCATE)
AND:
SRI.AMEENSAB
S/O SAIPANSAB TAKKALI
AGE:37 YEARS, OCC:WORKSHOP
R/O SINDAGI
TQ: SINDAGI
DIST:BIJAPUR - 586 101
... RESPONDENT
(BY SRI:SUDHEER KULKARNI, ADVOCATE)
RSA NO.7134/2012 IS FILED UNDER SECTION 100 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED
30.01.2006 PASSED IN RA NO.103/2005 ON THE FILE OF THE
FAST TRACK COURT-I AT BIJAPUR, WHEREIN THE APPEAL WAS
DISMISSED AND THE JUDGMENT AND DECREE DATED
08.10.2004 PASSED IN OS NO.12/2003 ON THE FILE OF THE
CIVIL JUDGE (JR.DN.) AND JMFC AT SINDAGI WAS
CONFIRMED.
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THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are by plaintiff and defendant. RSA No.1046/2006 is filed by plaintiff - Ameensab in O.S.No.156/2002 challenging judgment and decree passed by Fast Track Court-I, Bijapur in R.A.No.102/2005. RSA No.7134/2012 is filed by plaintiff - Smt.Hasimbee in O.S.No.12/2003 challenging judgment and decree passed by Fast Track Court-I, Bijapur in R.A.No.103/2005.
2 Parties are referred to as per their rank in O.S.No.156/2002.
3 Plaintiff filed a suit for mandatory injunction against defendants seeking for demolition of 10' x 10' construction of 'AB' suit wall and in the event of their failure to demolish the same, order of demolition may be executed through Court Commissioner. -4- O.S.No.12/2003 was filed by Smt.Hasimbi - second defendant against plaintiff in O.S.No.156/2002 for the relief of declaration and injunction that she is the owner in possession and enjoyment of house bearing TMC No.326/1A and vacant space situated at Sindagi ward measuring East to West 16', North to South 40' and out of said property East to West 12' and North to South 35' constructed. Suit filed by plaintiff in O.S.No.156/2002 came to be decreed. Defendant was directed to demolish 10' height and 10' width construction of 'AB' suit wall within four months. Suit filed by second defendant Hasimbee in O.S.No.12/2003 came to be dismissed. Against said judgment and decrees, both defendants-1 and 2 and plaintiff filed appeals in R.A.No.102/2005 and 103/2005 respectively. By a common judgment and decree dated 30.01.2006, Fast Track Court, Bijapur allowed R.A.No.102/2005 and set aside the judgment and decree passed in O.S.No.156/2002 and dismissed the suit in -5- O.S.No.156/2002. Consequently, R.A.No.103/2005 also came to be dismissed affirming judgment and decree of dismissal passed in O.S.No.12/2003. Against these judgments and decrees, both plaintiff and second defendant have filed these two appeals. 4 Today, compromise petition is filed under Order 23 Rule 3 CPC. It is submitted that as per terms stated therein, parties have settled their disputes. Same reads as under:
"1. It is submitted that, for better understanding and identification of the properties of the appellant and the respondents, a hand sketch map is enclosed with this compromise petition and same is being made as part and parcel of this compromise petition.
2. That, the appellant herein has filed O.S.No.156/2002 against the respondents and the 2 nd respondent herein has filed O.S.No.12/2003 against the appellant herein before the trial Court.
3. It is submitted that, ABCD portion is the house property bearing No.TMC No.326 of Sindagi belongs to the -6- appellant herein and appellant is in exclusive possession and enjoyment of the same since from the date of his ancestors. The portion of shown by letters EFGH is the house property bearing TMC No.326 A of Sindagi belongs to the respondents and they are in exclusive possession and enjoyment of the same. That, there exists a passage in between the houses of appellant and respondents measuring 2 ½ in width East - West and 40 feet in length North South which is meant for the exclusive use and enjoyment of the appellant herein. The said passage is clearly shown in the hand sketch map. But now it is agreed and settled between the appellant and respondents that the said passage shown in the sketch map shall be widened to 3 feet 4 inch East - West and 40 feet in length North - South by removing the existence wall FG shown in the sketch map by the respondents alone and to reconstruct said FG wall by leaving 3 feet 4 inch passage as stated supra at the expense of the respondents on or before 31.12.2012. If the respondents fails to remove and reconstruct the FG wall as agreed upon within a stipulated period i.e., on or before 31.12.2012, the appellant will remove the said FG wall and widened it to 3 feet 4 inch and the expenses to be incurred for the said work shall be recovered from the respondents with interest.-7-
4. It is made clear that the respondents shall not open Doors, window, ventilators and water spouts in the FG wall and they shall not discharge drain waters in the passages of the appellant. The appellant shall not discharge the drain water and shall not made any construction touching the said FG wall.
5. The appellant has not concerned with the ownership and possession of the portion of the house property shown in the sketch map. Like wise the respondents have not concerned with the ownership and possession of the portion of the house property shown in the sketch map.
6. It is submitted that this compromise is made in the better interest of both the parties.
7. That, in view of this settlement between the parties, the R.S.A.No.7134/2012 filed by the respondents which is pending before this Court, stands disposed off.
8. The contents of this compromise petition are read over and explained to the parties to the petition in the language known to them and after understanding the contents of this compromise as true and correct, the parties put their signature over it."-8-
5 Parties are present before Court. They admit due execution of compromise petition. They also admit that their respective learned Advocates have read over, explained to them contents of compromise petition in the language known to them and state that after having understood contents thereof, they have affixed their signature/LTM on each page of the compromise petition. They also admit that without any force, threat, coercion or inducement said compromise has been entered into. They also admit that as per the sketch appended to the compromise petition, defendants i.e., Smt.Hasimbee and her husband Sri Nabisab have agreed to leave a passage of 3 feet 4 inches on eastern side of their property i.e., western side of property belonging to plaintiff - Sri Ameensab voluntarily. Learned Advocates appearing on behalf of both parties have also affixed their signatures in token of having identified their respective parties. -9-
6. In view of the above, said compromise petition is hereby accepted. Judgment and Decree passed by trial Court is substituted with that of terms of compromise petition. Both appeals stand disposed of in terms of compromise petition. Parties to bear their respective costs.
Registry is directed to draw decree in terms of compromise petition.
Sd/-
JUDGE *sp