Karnataka High Court
A Shivashankarappa vs A M Sarvamangalamma on 3 June, 2019
Bench: B.V.Nagarathna, K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
REGULAR FIRST APPEAL NO.146 OF 2013 (PAR / POS)
BETWEEN:
1. A.Shivashankarappa
S/o Late Andanur Mahalingappa
Aged about 63 years
Cloth Merchant
R/o # 1801/25, 17th Cross
Anjaneya Badavane
Davanagere - 577 004.
2. A.Niranjana Murugendra
S/o Late Andanur Mahalingappa
Aged about 51 years
Cloth Merchant
R/o # 463/1, Kaipete
Davanagere - 577 001.
...Appellants
(By Sri.D.S.Ramachandra Reddy, Advocate)
AND:
1. A.M.Sarvamangalamma
W/o. late Andanur Mahalingappa
Aged about 83 years
Hosuehold, R/o # 1798/5
16th Cross, Anjaneya Badavane
2
Davanagere - 577 004.
2. A.M.Basavaraj
S/o late Andanur Mahalingappa
Aged about 48 years
Proprietor of hardware Shop
R/o # 1798/5
16th Cross, Anjaneya Badavane
Davanagere - 577 004
3. B.V.Manjula
W/o B.V.Veerabhadrappa
Aged about 53 years
Household
R/o # 444, 13th Main
M.C.Layout
Near Bank of Baroda
Vijayanagar
Bangalore- 560 040
4. Suvarnamma
W/o A.Niranjana Murugendra
Aged about 43 years
Household
R/o # 463/1, Kaipet
Davanagere - 577 001
5. A.S.Anasuyamma
W/o A.Shivashankarappa
Aged about 58 years
Household, R/o # 1801/25
17th Cross
Anjaneya Badavane
Davanagere - 577 004
....Respondents
(By Sri.R.V.Jayaprakash, Advocate for R1 and R3)
(R4 and 5 - served and present-in-person)
3
This R.F.A. is filed under Section 96 of CPC, against
the judgment and decree dated:31.10.2012 passed in
O.S.06/2009 on the file of the Prl. Senior Civil Judge and
CJM, Davanagere, dismissing the suit for partition and
separate possession.
This R.F.A. coming on for Orders this day,
Nagarathna j., delivered the following:
JUDGMENT
This appeal is listed for orders.
2. Learned counsel for the respective parties, except respondent Nos.4 and 5 submit that during the pendency of this appeal, the parties have entered into a negotiation and have settled the dispute between themselves amicably by entering into a compromise / settlement.
3. Learned counsel for the respective parties, except respondent Nos.4 and 5, further submit that memorandum of compromise petition signed by the respective parties has also been filed on 15th April, 2019.
The same is also supported by affidavits filed by the second appellant as well as the second respondent.
44. Learned counsel for the respective parties, except respondent Nos.4 and 5, therefore submit that the appeal may be disposed of in terms of the compromise.
5. This appeal is filed by the plaintiffs in O.S. No.6/2009, being aggrieved by the dismissal of the suit by the Principal Senior Civil Judge, C.J.M., Davanagere by judgment and decree dated 31.10.2012. The appellants-
plaintiffs have filed the suit seeking the relief of partition and separate possession of the suit schedule properties by arraying their wives also as defendants in the suit. The Trial Court however dismissed the suit.
6. As already noted, during the pendency of the appeal, the parties have resolved their dispute and are present here to submit that this appeal may be disposed of by the compromise arrived at between them. The parties have been identified by their respective counsel. They submit that they have agreed to seek disposal of this appeal by way of settlement arrived at on their own free volition without there being any kind of coercion, force or 5 undue influence from any side. They submit that they have signed the memorandum of compromise and that the appeal may be disposed of in terms of the compromise arrived at between them.
7. Learned counsel for the respective parties, except respondent Nos.4 and 5, also submit that the compromise petition may be taken on record and the appeal may be disposed of in terms of the compromise.
The memorandum of compromise filed under Order XXIII Rule 3 r/w Section 151 of C.P.C is taken on record.
8. Learned counsel for the appellants submits that the first appellant has appointed his son, Sri.A.S.Sudheer, as his Special Power of Attorney, to admit the terms of the compromise and to submit before this Court that his father has accorded his approval to the terms of compromise. Similarly, the first respondent Smt.A.M.Sarvamangala, has constituted her son, namely Sri.A.N.Basabstsj, the second respondent herein, as her Special Power of Attorney, to admit to the terms of the 6 compromise and to submit her approval to the same. The power of attorney documents are also taken on record.
9. We have perused the terms of the compromise and have made the necessary enquiries from the parties regarding the terms. As noted above, they along with their respective counsel submit that his appeal may be disposed of in terms of the settlement arrived at between them. Respondent Nos.4 and 5 who have appeared in person endorse the submission made on behalf of the other parties. The terms of the memorandum of compromise read as under:
"The Appellants 1 and 2 and Respondents 1 to 5 submit as under:
1. the Appellants who were the Plaintiffs in O.S.No.6/2009 on the file of the Prl. Senior Civil Judge, Davanagere filed the suit against the Respondents who were the Defendants in the suit seeking for a decree for partition and separate possession of their alleged share in the suit schedule properties. The suit schedule properties consist of 23 items. After trial, the Trial Court by its Judgment and Decree dated 7 31-10-2012 has dismissed the suit. The Appellants have filed the above appeal against the said judgment and decree dated 31-10-2012. The Trial Court has held that there was an earlier partition on 31-03-1991 and the said partition was reduced into writing under a Memorandum of Partition dated:
19-08-1991.
2. It is submitted that at the intervention of the well-wishers and on the advice of the elders, the Appellants and Respondents have amicably settled the matter among themselves in the manner herein after provided.
3. In continuation of the findings given by the trial court and as per the present compromise petition, all the parties agree that the right, title, interest and possession of the properties mentioned below in the Schedules A, B, C, D, E and F shown against the names of each of the parties vest absolutely in them without any encumbrance or dispute.APPELLANT No.1/ Item Nos.6, 7, 9
PLAINTIFF No.1 half of Item No.10 A.SHIVASHANKARAPPA and 11 of the Suit Schedule Properties.
8I Details of the properties of which Appellant No.1/Plaintiff No.1 A.Shivashankarappa is the owner in possession out of Suit Schedule properties.
Schedule - A
Item Nos. in the
Suit Schedule Description of the properties
Properties
6 A vacant Site No.24 at
Anjaneya Badavane, 17th
Cross situated at Shamanur Village, Davanagere Taluk, bearing Door No.1801/24 measuring 57 Ft.+64/2 Ft. x 68 Ft. + 69/2 Ft. bounded on the East by: Site No.25, West By: Re.Sy.No.102/1a-1a3 property, North by: Site No.23, South by: Road 7 A RCC House Site No.25, Door No.1801/25 situated at Anjaneya Badavane, Shamanur Village, Davanagere Taluk, measuring 40 Ft. x 69+69.5/2 Ft.
bounded on the East by: Site No.26, West by: Site No.24, North by: Site No.22, South by: Road 9 A RCC house with shop bearing Site No.754/A1, New Door No.1790/4 and 5, nd Vinobanagara, 2 Main Road, 5th Ward, situated at 9 Davanagere City, measuring East to West: 24 Ft. North to South: 20 Ft. (24' x 20') bounded on the East by: 2nd Main Road, West by: Door No.1790/3, North by: 1790/1 and 2, South by: Cross Road Half of Item ½ portion of Vacant Sites No.10 bearing No.15 and 18, Re.Sy.No.74/1, measuring 60 Ft. x 38+32/2 situated at Kasaba Hobli, Davanagere Taluk and City bounded on the East by: Site No.14, West by: Site No.19, North by:
Road and South by:
Conservancy.
11 Vacant site (Wrongly
mentioned as R.C.C. House in the suit Schedule at Item No.11) situated at Davanagere Taluk / City bearing Site No.57, Re.Sy.No.128/2, in the alienated layout belonging to Davanagere City, measuring 30ft. x 40 ft. bounded on the East by: site No.56, West by:
Site No.58, North by: Road, South by: Property of others APPELLANT No.2/ Item Nos.2, 3, 14 and PLAINTIFF No.2 15 of the Suit A.NIRANJANA Schedule Properties. MURUGENDRA 10 II. Details of the properties of which Appellant No.2/Plaintiff No.2 A.Niranjana Murugendra is the owner in possession out of Suit Schedule properties.
Schedule - B
Item Nos. in the
Description of the
Suit Schedule
properties
properties
2 2 Houses - (1) bearing
Old Door No.742/2, New
Door No.835/2 situated at Renuka Badavane, Davanagere City (2) bearing Door No.742/5, New Door No.836 Total Measuring 15 Ft. x 92 Ft.
situated at Renuka Badavane, Davanagere city bounded on the East by: Conservancy Road, West by: Main Road, North by: Door No.835/1 and 837 houses, South by: Contractor Narayana Rao's House.
3 A RCC house situated at Anjaneya Badavane 16th Cross, Shamanur Village, Davanagere City, bearing Door No.1798/7 measuring 30 Ft. x 50 Ft.
coming under approved Municipal layout, bounded on the East by: Site No.1798/8, West by: Site 11 No.1798/6, North by:
Re.S.No.103 Vacant land and South by: Road 14 A vacant site bearing Site No.65, Re.Sy.No.128/2, situated at Davanagere City, Davanagere Taluk within the Municipal limits, measuring 30 Ft. x 40 Ft. bounded on the East by: Site No.64, West by: Site No.66, North by:
Road and South by:
Property of Others.
15 A vacant site bearing Site
No.8, Door No.1798/8
situated at Anjaneya
Badavane, 16th Cross,
Shamanur Village,
Davanagere City,
measuring 30 Ft. x 50 Ft.
bounded on the East by:
Site No.9, West by: Site
No.7, North by:
Re.Sy.No.103 land and
South by: Road.
RESPONDENT No.1/ Item
DEFENDANT No.1 - Nos.1, 8,
Smt.A.M.SARVAMANGALAMMA Half of
Item No.18
and Item
No.20.
12
III. Details of the properties of which
Respondent No.1 / Defendant No.1
Smt.A.M.Sarvamangalamma is the owner in possession out of Suit Schedule properties.
Schedule - C Item Nos. in the Suit Schedule Description of the properties properties 1 R.C.C. House with shops situated on Municipal Site No.754/A1 situated at 5th Ward, Vinobanagara 2nd Main, measuring 24 Ft. x 20 Ft.
bearing Door Nos.1790/1 & 1790/2 bounded on the East By: 2nd Main Road, West by:
Door No.1790/3, North by:
Conservancy, South by: Door No.1790/4 and 5 house.
8 A RCC Roof house bearing Municipal Door No.1790/3 situated at Vinobanagara, 2nd Main Road, 5th Ward, Davanagere City, measuring East to West: 16 ft. North to South 40 ft. (16 x 40) bounded on East by: Door No.1790/1, 2 and 1790/4 and 5 properties, West by: Other's property, North by:
Conservancy, South by: Cross Road.
Half of Item Western half portion of the No. 18 property measuring 25 Ft. x 13 100 Ft out of the vacant site bearing Municipal Door No.1899 situated at Vinobanagara B Block, 5th Ward, 9th Division, Davanagere City measuring 50 Ft. x 100 Ft. bounded on the East by: Property of A.M.Basavaraj, West by:
Property of Gangamma, North by: Main Road and South by:
Baleholada Siddappa's
property.
20 A vacant site bearing Site
No.34, Re.Sy.No.128/2
situated at Davanagere City, alienated layout coming under Municipal limits, measuring 30 Ft. x 40 Ft. bounded on the East by: Site No.35, on the West by: Road, on the North by: Land of others and on the South by: Road RESPONDENT No.2/ Item Nos.4, 5, Half of DEFENDANT No.2 - Item No.10, 16, 17, A.M.BASAVARAJ half of Item No.18, 22 and 23 of the suit schedule properties IV. Details of the properties of which Respondent No.2 / Defendant No.2 A.M.Basavaraj is the owner in possession out of Suit Schedule properties.14
Schedule - D Item Nos. in the Description of the Suit Schedule properties properties 4 A vacant site bearing Municipal Corporation Door No.85/2 new Door No.252/2 situated at th P.B.Road, 5 Ward, 7th Division, Davanagere City, measuring East to West: 18 Ft. and North to South: 65 Ft. bounded on the East by:
Site No.2 belonging to Shivalingappa, on the West by: Common Road, on the North: Road and on the South: P.B.Road.
5 RCC Building bearing Old Door No.418, New Door No.463/1 and 2, situated at 1st Ward, 1st Division, Davanagere City consisting of a dwelling house and shop measuring East to West: 14 Ft. and North to South: 105 Ft., bounded on the East by: House of Badami Channabasappa's property, on the West by:
House belonging to Emme Kotramma, on the North by: Kaipet Main Road and on the South by:
Conservancy.15
Half of Item ½ portion of Vacant Sites No.10 bearing No.15 and 18, Re.Sy.No.74/1, measuring 60 Ft. x 38+32/2 situated at Kasaba Hobli, Davanagere Taluk and City bounded on the East by:
Site No.14, West by: Site No.19, North by: Road and South by: Convservancy 16 RCC house bearing Door No.1798/5 measuring 30 Ft. x 50 Ft. situated at Anjaneya Badavane, 16th Cross Shamanur Village, Davanagee city, bounded on the East by: Site No.1798/6, on the West by: Site No.1798/4, on the North by: Re.Sy.No.103, on the South by: Road.
17 3 tiled houses bearing Municipal Door No.835/1 No.835/5 and Door No.837 situated at Renuka Badavane, Davanagere City, totally measuring 22 ½ Ft. x 92 Ft. bounded on the East by:
Conservancy Road, on the West: Main Road, on the North by: Property of sharadamma w/o savanur shankrappa, on the South by: Property of A.Niranjana Murugendra.16
Half of Item Vacant site bearing No.18 Municipal Door No.1899, 5th Ward, 9th "B" Division, Vinobanagar B Block, Davanagere City measuring 25 Ft. x 100 Ft. bounded on the North by: Main Road, on the South by:
Bale Holada Siddappa's property, on the East by:
Thumminakatte Basappa's property and on the West by:
A.M.Sarvamangalamma's property.
22 A vacant site bearing Site No.45, measuring 30 Ft. x 40 ft. in Re.Sy.No.128/2 alienated layout coming under Municipal limits situated at Davanagere City bounded on the East by: Site No.44, West by: Site No.46, North by: Road and South by: Others land.
23 Vacant site bearing Site No.6, Door No.1798/6 measuring 30 Ft. x 50 Ft.
situated at Anjaneya
th
Badavane, 16 cross
Shamanur Village,
Davanagere City, bounded on the East by: Site No.1798/7, on the West by: Site No.1798/5, on the North by: Re.Sy.No.103, on the South by: Road 17 RESPONDENT No.4/ Item No.21 of the DEFENDANT No.4 - Suit Schedule SUVARNAMMA A.N property V. Details of the property of which Respondent No.4 / Defendant No.4 Suvarnamma is the owner in possession out of Suit Schedule properties.
Schedule - E Item No. in the Suit Description of the properties Schedule properties 21 Vacant site bearing Site No.28 in Re.Sy.No.128/2 situated in alienated layout coming under Municipal limits measuring 30 Ft. x 40 Ft. situated at Davanagere City bounded on the East by: Site No.29, on the West by: Site No.27, on the North by: Others' land and on the South by: Road RESPONDENT No.5/ Item No.12 and DEFENDANT No.5 - 13 of the Suit A.S.ANASUYAMMA Schedule properties VI. Details of the properties of which Respondent No.5 / Defendant No.5 18 A.S.Anasuyamma is the owner in possession out of Suit Schedule properties.
Schedule - F Item No. in the Description of the Suit Schedule properties properties 12 A vacant site bearing Site No.68 in Re.Sy.No.128/2 situated at alienated layout in Davanagere City, measuring 30 Ft. x 40 Ft.
and bounded on the East by: Site No.67, on the West by: Site No.69, on the North by: Road and on the South by: Vacant land 13 RCC house bearing Municipal Door No.874 situated at 5th Ward, Vinobanagara I Main Road, Davanagere City, Davanagere Taluk measuring East to West:
40 ft. and North to South:
10 Ft. bounded on the East by: Conservancy, on the West by: Main Road, on the North by property of A.Shivashanakarappa and on the South by: Site belonging to Sarojamma
4. It is further agreed between the parties as follows:19
(a) Item No.19 of the suit schedule property bearing R.S.No.9/3-1B measuring 11½ Guntas has been acquired for the Karnataka Industrial Areas Development Board. The said property had been jointly purchased by the Appellants/plaintiffs and Respondent No.2/Defendant No.2. The parties agree that the compensation payable in respect of the said land shall be shared equally by the Appellants/Plaintiffs and Respondent No.2/Defendant No.2, namely, A.Shivashankarappa, A.Niranjana Murugendra and A.M.Basavaraj is equal shares.
(b) Item No.10 of the suit schedule property is vacant site consisting of Site Nos.15 and 18 measuring 60 ft. x 38+32/2 ft. in Re Sy.No.74/1 situated at Davanagere City and the said property had been purchased jointly by the Appellant No.1/Plaintiff No.1 and Respondent No.2/Defendant No.2. The Respondent No.2/Defendant No.2 agrees to transfer his ½ share in the said property to the Appellant No.1/Plaintiff No.1 and Appellant No.2/Plaintiff No.2 jointly by executing a Gift Deed in their favour. In this regard, the 20 Appellants/Plaintiffs shall get the registered deed executed from Respondent No.2/Defendant No.2 at their own costs.
(c) Item No.18 of the suit schedule property is a vacant site measuring 50 Ft. x 100 Ft.
bearing Door No.1899 which had been jointly purchased by Respondent No.1/Defendant No.1 and Respondent No.2/Defendant No.2 under a registered sale deed dated:26.06.1981. The Respondent No.1/Defendant No.1 and Respondent No.2/Defendant No.2 agree to transfer ½ share of Respondent No.1/Defendant No.1 on the western side of the property measuring 25 ft. x 100 ft. jointly to the Appellants/Plaintiffs by executing a Gift Deed and the remaining ½ share on the eastern side shall be retained by Respondent No.2/Defendant No.2. It is the responsibility of Appellants/Plaintiffs to get the necessary registered deed executed in their behalf at their own cost from Respondent Nos.1 and 2 /Defendant Nos.1 and 2.
(d) It is submitted that Item No.5 of the suit schedule properties exclusively belongs to 21 Respondent No.2/Defendant No.2. The Appellant No.2/Plaintiff No.2 is in possession of an extent of 14 Ft. x 35 Ft. in the ground floor of the said property as a tenant. The Respondent No.2/Defendant No.2 has filed a suit in O.S.No.719/2013 in the Court of the Prl.Civil Judge (Jr.Dn.) at Davanagere against Appellant No.2/Plaintiff No.2 seeking for a decree for ejectment of Defendant therein from the suit schedule property directing him to vacate and deliver vacant possession of the suit schedule property involved in the said suit and also for recovery of arrears of rent of Rs.1,29,600/- and certain other reliefs. In the said suit, the Appellant No.2/Plaintiff No.2 who is Defendant therein had filed an application seeking for stay of the said suit O.S.No.719/2013 till disposal of RFA No.146/2013 pending before this Hon'ble Court. The said application came to be rejected by the Trial Court by its order dated:
09-03-2016 and the Appellant No.2/Plaintiff No.2 has challenged the said order by filing a writ petition in W.P.No.25379/2016 and the said writ petition is still pending before this Hon'ble Court. In view of the compromise 22 arrived at between the parties, the Appellant No.2/Plaintiff No.2 undertakes to withdraw the said writ petition and he also further undertakes that he would vacate and deliver vacant possession of the premises in his occupation as a tenant to the Respondent No.2/Defendant No.2 within three months from the date of disposal of the above appeal.
(e) The Respondent No.2/Defendant No.2 undertakes to withdraw O.S.No.719/2013 pending before the Addl. Civil Judge, Davanagere after the Appellant No.2/Plaintiff No.2 delivers the vacant possession of the portion of the ground floor property in his possession to Respondent No.1/Defendant No.2.
(f) The Respondent 1/Defendant 1 agrees to transfer Item No.20 of the suit schedule property Viz. vacant site bearing Site No.34 in Re.Sy.No.128/2 measuring 30 Ft. x 40 Ft.
situated at alienated lay out coming under Municipal limits, Davanagere City in favour of her daughter Respondent No.2/Defendant No.3 [Smt.B.V.Manjula W/o B.V.Veerabhadrappa] 23 by executing a Gift Deed. It is the responsibility of Respondent No.3/Defendant No.3 to get the necessary registered deed executed in her behalf at her own cost from Respondent No.1/Defendant No.1.
(g) The Respondent 1/Defendant 1 agrees to transfer Item No.8 of the suit Schedule Property Viz. RCC roof house bearing Municipal Door No.1790/3 situated at Vinobanagara, 2nd Main Road, 5th Ward, Davanagere City, measuring East to West: 16 ft. North to South 40 ft. (16' x 40') bounded on East by: Door No.1790/1, 2 and 1790/4 and 5 properties, West by: Other's property, North by:
Conservancy, South by: Cross Road. Daughter of Respondents [Smt.B.V.Manjula W/o B.V.Veerabhadrappa] by executing a Gift Deed. It is the responsibility of Respondent No.3 to get the necessary registered deed executed in her behalf at her own cost from Respondent No.1/Defendant No.1.
(h) The Respondent 1/Defendant 1 agrees to transfer Item No.1 of the suit Schedule Property Viz. RCC house with shop bearing Municipal Site No.754/A1, Door No.1790/1 and 24 1790/2, Vinobanagara, 2nd Main Road, 5th Ward, situated at Davanagere City, measuring East to West: 24 Ft. North to South: 20 Ft. (24' x 20') bounded on the East by: 2nd Main Road, West by: Door No.1790/3, North by: Conservancy and South by: 1790/4 and 5 in favour of Smt.A.N.Sridevi (Allias A.N.Shwetha) D/o A.Niranjana Murugendra by executing a Gift Deed. It is the Responsibility of Smt.A.N.Sridevi (Allias A.N.Shwetha) to get the necessary registered deed executed in her behalf at her own cost from Respondent No.1/Defendant No.1.
(i) The Respondents 1 & 2/Defendants 1 & 2 agree to execute the Registered Gift Deeds referred to at Para (a), (b), (e), (f) and (g) above only after the Appellant No.2/Plaintiff No.2 delivers vacant possession of the ground floor portion of Item No.5 of the suit schedule property to Respondent No.2/Defendant No.2 as agreed at para (c) above.
4. In acceptance of the above, all the parties to the above appeal have affixed their respective signatures to this memorandum of compromise petition. The compromise arrived 25 at is a lawful compromise and is in accordance with law. There is no coercion or undue influence on any of the parties and the parties have voluntarily agreed to the terms of compromise.
WHEREFORE, it is prayed that this Hon'ble Court be pleased to record the above compromise and pass a decree in terms of the above compromise in substitution of the decree of the court below in the interest of justice."
10. On perusal of the same, we do not find any legal impediment to accept the same and we find that the terms of compromise are lawful. However, it is noted that there is no time period fixed for execution of the gift deeds by respondent No.1 in favour of her daughter respondent No.3.
11. In the circumstances, we direct that the gift deeds be executed by respondent No.1 in favour of respondent No.3 within a period of fifteen days from the date of receipt of certified copy of this judgment. The third 26 respondent shall take all steps necessary for the due execution of the gift deeds in her favour by her mother. If the gift deeds are not executed by the first respondent in favour of the third respondent within a reasonable time, then option is reserved to the third respondent to approach this Court for appropriate orders.
12. The parties further submit that they shall abide by the terms and conditions of the compromise.
In the circumstances, the impugned judgment and decree of the Trial Court is set aside. The appeal is disposed of in terms of the compromise arrived at between the parties.
Office to draw the final decree forthwith.
SD/-
JUDGE SD/-
JUDGE GH