Karnataka High Court
K S Venkappa vs K Mruthyunjaya on 28 October, 2013
1 RSA No.2004/2008
C/W
RSA NO.2003/2008
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
REGULAR SECOND APPEAL No.2004 OF 2008
C/W
REGULAR SECOND APPEAL No.2003 OF 2008
IN RSA NO.2004/2008:
BETWEEN:
K S VENKAPPA
S/O. KASINA SANNAPPA
AGED 79 YEARS
OCC: AGRICULTURIST
R/O. KANUGODU VILLAGE
POST BRAHMANA MENCHALE
SAGAR TALUK - 577 401
SHIMOGA DISTRICT.
... APPELLANT
(BY SRI: S V PRAKASH, ADV)
AND:
1. K MRUTHYUNJAYA
S/O.KASINA SANNAPPA
AGED 58 YEARS
OCC: AGRICULTURIST
R/O.KANUGODU VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA.
2 RSA No.2004/2008
C/W
RSA NO.2003/2008
2. K S SATHYANARANAPPA
S/O. KASINA SANNAPPA
SINCE DECEASED
REP BY HIS L.RS
2(a) MAHALAKSHMAMMA
W/O. LATE K.S. SATHYANARAYANAPPA
AGED 70 YEARS
OCC: HOUSEHOLD
2(b) SUVARNA
D/O. LATE K.S. SATHYANARAYANAPPA
AGED 52 YEARS
OCC: HOUSEHOLD
2(c) PRABHAKARA
S/O. LATE K S SATHYANARAYANAPPA
AGED 50 YEARS
OCC: AGRICULTURIST
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK, SHIMOGA.
2(d) KARUNAKARA
S/O. LATE K.S. SATHYANARAYANAPPA
AGED 45 YEARS
OCC: AGRICULTURIST
RESPONDENTS 2(a-d) ARE
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA.
3. SRIDHARA
S/O. K S THIMMAPPA
AGED 35 YEARS
OCC: AGRICULTURIST
3 RSA No.2004/2008
C/W
RSA NO.2003/2008
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA
4. SHARAVATHAMMA
D/O. K SANNAPPA
AGED 59 YEARS
OCC: HOUSEHOLD
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA.
5. PADVATHAMMA
SINCE DECEASED REP BY HER L.RS
5(a) SRIDHARA
S/O. SUBRAYA
AGED 45 YEARS
OCC: AGRICULTURIST
R/O. HANAMBI ROAD
NEHRU NAGAR,
SAGAR TOWN-577 401.
5(b) NARAHARI
S/O. SUBBARAYA
AGED 45 YEARS
C/O. INDIAN EXPRESS OFFICE
NEAR PODIUM BLOCK
BANGALORE - 560 052.
5(c) SMT JAYAMMA
W/O. NAGENDRA
AGED 38 YEARS
OCC: HOUSEHOLD
R/O. KADASOOR POST
KADASOOR VIA HUNCHA
4 RSA No.2004/2008
C/W
RSA NO.2003/2008
HOSANAGAR TALUK
SHIMOGA - 577 201.
... RESPONDENTS
(BY SRI: R V JAYAPRAKASH, ADV FOR R1, 2(A-D),
R5(a) ABATED V.C.O. DT.16.09.2011,
R5(b) & (c) SERVED & UNREPRESENTED)
IN RSA NO.2003/2008:
BETWEEN:
K S VENKAPPA
S/O. KASINA SANNAPPA
AGED 79 YEARS
OCC: AGRICULTURIST
R/O. KANUGODU VILLAGE
POST BRAHMANA MENCHALE
SAGAR TALUK - 577 401
SHIMOGA DISTRICT.
... APPELLANT
(BY SRI: S V PRAKASH, ADV)
AND:
1. K MRUTHYUNJAYA
S/O.KASINA SANNAPPA
AGED 58 YEARS
OCC: AGRICULTURIST
R/O.KANUGODU VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA.
5 RSA No.2004/2008
C/W
RSA NO.2003/2008
2. K S SATHYANARANAPPA
S/O. KASINA SANNAPPA
SINCE DECEASED
REP BY HIS L.RS
2(a) MAHALAKSHMAMMA
W/O. LATE K.S. SATHYANARAYANAPPA
AGED 70 YEARS
OCC: HOUSEHOLD
2(b) SUVARNA
D/O. LATE K.S. SATHYANARAYANAPPA
AGED 52 YEARS
OCC: HOUSEHOLD
2(c) PRABHAKARA
S/O. LATE K S SATHYANARAYANAPPA
AGED 50 YEARS
OCC: AGRICULTURIST
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK, SHIMOGA.
2(d) KARUNAKARA
S/O. LATE K.S. SATHYANARAYANAPPA
AGED 45 YEARS
OCC: AGRICULTURIST
RESPONDENTS 2(a-d) ARE
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA.
3. SRIDHARA
S/O. K S THIMMAPPA
AGED 35 YEARS
OCC: AGRICULTURIST
6 RSA No.2004/2008
C/W
RSA NO.2003/2008
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA.
4. SHARAVATHAMMA
D/O. K SANNAPPA
AGED 59 YEARS
OCC: HOUSEHOLD
R/O. KANUGODI VILLAGE
POST BRAHMANA MANCHALE
SAGAR TALUK-577 401
SHIMOGA.
... RESPONDENTS
(BY SRI: R V JAYAPRAKASH, ADV FOR
R1, R2(a-d), R3 & 4)
THESE RSAs ARE FILED UNDER SECTION 100 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED
30.05.2008 PASSED IN RA NOs.63/2007 & 67/2007
RESPECTIVELY ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), SAGAR, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 04.01.1995
PASSED IN OS NO.5/1993 ON THE FILE OF THE ADDL.
MUNSIFF AND ADDL.JMFC, SAGAR.
THESE RSAs HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
J U D G M E N T
The appellant in both the cases has challenged the judgment and decree for partition 7 RSA No.2004/2008 C/W RSA NO.2003/2008 and separate possession granted by the Trial Court and confirmed in appeal.
2. The facts relevant for the purpose of this appeal are as under:
Parties will be referred as per their rank before the Trial Court for the sake of convenience.
Respondent No.1 is the plaintiff whereas the appellant is defendant No.1 and other respondents are defendants 3 to 5 and the LRs. The suit property is the agricultural land bearing Sy.No.12 measuring 2 acres 20 guntas within the village limits of Nadamanchale described in the schedule to the plaint. One K Sannappa, is the father of plaintiff, defendant Nos.1, 3, 5 and 6 and grand father of defendant No.4. Defendant No.2 is the mother of other defendants and grand mother of defendant No.4. 8 RSA No.2004/2008
C/W RSA NO.2003/2008 It was a joint family earlier and on 28.05.1962, there was a partition amongst the members of the family and the suit land fell to the share of K Sannappa, the father of plaintiff and other aforesaid defendants. He was given other lands also. It appears that there was a dispute between defendant No.1 and his father and in the circumstances, his father instituted OS No.352/1970 claiming decree of injunction. This suit ended in a compromise and in terms of the compromise, the father of defendant No.1 was to purchase a garden land for defendant No.1 and till then, the first defendant was to be in possession of the suit property. It is under the terms of this compromise, that the first defendant has been in possession of suit property. Later the suit came to be instituted by the father of first defendant in OS No.357/1978 seeking possession of the suit 9 RSA No.2004/2008 C/W RSA NO.2003/2008 property on the ground that the first defendant has sold some of the lands fallen to his share and therefore as he did not act according to the compromise decree, the father sought possession of the suit property. This suit came to be dismissed on merits and during the pendency of appeal, father of first defendant died. LRs were brought on record and the said appeal also came to be dismissed affirming the decree of Trial Court. Ultimately, on the death of father of plaintiff and other aforesaid defendants, the present suit came to be instituted by the first respondent - the plaintiff and brother of defendant No.1 claiming the share in the suit property. The first defendant did not give the share in the suit property despite the demand notice.
The first defendant contested the suit by filing written statement and it is his specific 10 RSA No.2004/2008 C/W RSA NO.2003/2008 defence that in terms of the compromise, his father was to give a garden land and thereafter, he was to hand over the vacant possession of suit property within 6 months and as his father did not comply the requirements of the compromise decree, he submits that he is entitled to continue in possession of the suit property. So also, it is his contention that the decree in OS No.357/1978 dismissing the suit of his father's possession is binding upon the parties and therefore, it was his contention that the plaintiff and other defendants are not entitled to any share in the suit property as it was given as compensation for the loss that was occurred in the partition between the parties.
On the basis of these pleadings, the Trial Court framed as many as 5 issues and the parties were permitted to lead the evidence. Accordingly, the plaintiff examined himself as 11 RSA No.2004/2008 C/W RSA NO.2003/2008 PW1 and in his evidence documents Exs.P1 to P9 were marked. The defendants did not lead any evidence. The Trial Court after hearing the counsel for the parties and on appreciation of the evidence on record, decreed the suit in part granting share by allotting 13 guntas extra land in the suit property exclusively to the first defendant. Both the plaintiff and first defendant aggrieved by the judgment and decree, preferred appeals in RA Nos.63 and 67/2007. The First Appellate Court allowed the appeal of plaintiff in RA No.67/2007 and dismissed the appeal of first defendant in RA No.63/2007. It granted 1/6th share in the suit property to each of the sharers. Aggrieved by the judgment and decree of the First Appellate Court, the first defendant has preferred these appeals. 12 RSA No.2004/2008
C/W RSA NO.2003/2008
3. At the time of admission, this Court had framed the following substantial question of law for consideration:
"1. Whether the decree passed in OS No.352/1970 dated 26.02.1973 was enforceable in the face of lapse of time?
2. Whether the Trial Court and the First Appellate Court were justified in holding otherwise?"
4. It is the contention of learned Counsel for the appellants that the first defendant has been in possession of the suit property on the basis of compromise in OS No.342/1970 and so long, he is given a suitable garden land by his father or any of legal representative, he is entitled to continue in the suit property and that the plaintiff or other defendants cannot claim any share till the compliance of decree in OS No.352/1970. So 13 RSA No.2004/2008 C/W RSA NO.2003/2008 also, it is his contention that the decree in OS No.357/1978 has attained finality and it is binding upon the parties, therefore, the present suit for partition and separate possession of the share in the suit property cannot be granted. It is also his contention that even assuming for the time being, the decree in OS No.352/1970 is a void decree, unless the decree is cancelled by the Competent Court, the plaintiff or defendants cannot claim any right in the suit property given to him under the compromise decree.
5. On the other hand, learned Counsel for the contesting respondents has supported the judgment and decree of the Courts below.
6. The case is much dependent on the documents than the oral evidence. It is not in dispute that there was a compromise decree in OS No.352/1970 between the first defendant and his 14 RSA No.2004/2008 C/W RSA NO.2003/2008 father. Admittedly, the suit property was given to the share of father and till the date of institution of suit in OS No.352/1970, it was in his possession. The compromise decree is produced by the plaintiff under Ex.P3. As could be seen from the terms of compromise incorporated in the decree, the father of first defendant had agreed to purchase a suitable garden land for defendant No.1 to compensate the injustice that was done to the first defendant in the partition of the year 1962 between the members of joint family. Therefore, he agreed to give a suitable extent of garden land to defendant No.1 at his own expenses and within 6 months from the date of giving land to the first defendant, he was to hand over the suit property to his father. It is also stated in the decree that to purchase the garden land for the first defendant, he would sell Halavagodu land i.e., 15 RSA No.2004/2008 C/W RSA NO.2003/2008 Sy.No.4 measuring 4 acres and 4 guntas fallen to his share in the aforesaid partition. It is in terms of this compromise between the first defendant and his father that a decree was drawn and the suit property was given to the first defendant and since then, he is enjoying the usufructs.
7. So far as this compromise decree under Ex.P3 is concerned, it is contended by learned Counsel for the contesting respondents that the said decree cannot be executed as there is no specification of the extent of land to be given to the first defendant and its value, having not been mentioned, the decree itself is incapable of execution and it is void. It is relevant to note that whenever there is a compromise between the parties to the litigation, the terms of compromise must be specific, clear and should be understood by the 16 RSA No.2004/2008 C/W RSA NO.2003/2008 parties just by looking to the decree and such decree must be capable for execution. When the extent of garden land and its value is not mentioned in the decree, rather it is difficult to enforce the terms of contract by filing the execution petition. When it is mentioned in the decree that a suitable garden land at the cost of father of the first defendant was to be given to defendant No.1, which is a suitable and what is the extent would be again a matter for interpretation. Such interpretation cannot be done by Executing Court, therefore, the contents of terms incorporated in the compromise decree at Ex.P3 are vague and such a decree cannot be executed, it has to be held that such a decree which has been obtained by the first defendant in the suit instituted by his father is void as it is incapable for execution.
17 RSA No.2004/2008
C/W RSA NO.2003/2008
8. It is an alternative submission of learned Counsel for the appellants that if this decree is void for any reason, it is necessary for the parties to get it cancelled. On this aspect of the mater, he relies upon a decision of the Apex Court reported in AIR 1996 SC 906 (State of Kerala Vs M K Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) and others). The Apex Court in relation to the void order passed by the Court held that such an order or decision rendered between the parties cannot be said to be non-existent in all cases and in all situations it is effective inter parties until it is successfully avoided or challenged in a higher forum.
9. It is no doubt true that in case if an order passed by the Court is void and the parties have a remedy in the superior Court to get such a void order cancelled, the principle 18 RSA No.2004/2008 C/W RSA NO.2003/2008 referred therein does not apply to the facts on hand as this Court or the Courts below have to take into consideration the possibility of implementation of the decree referred upon by the first defendant as a condition for division of the suit property. In case, if the parties are entitled to a share in the suit property and if any land is given to the first defendant in terms of the decree as to the extent of land to be given to the first defendant and its value concerned, it is not possible for the Courts to assess it or specify the extent of land to be given and therefore, when the question before the Court is the implementation of the decree and when such a decree cannot be implemented, the person who relies upon such decree cannot take benefit available under such decree. Furthermore the parties to this suit other than defendant were not parties for the compromise 19 RSA No.2004/2008 C/W RSA NO.2003/2008 and on this count as well the decree is not binding on them.
10. That apart, the decree which was obtained by the first defendant is dated 26.02.1973. If the first defendant is entitled to any benefit under a decree, it was necessary for him to file execution petition to enforce such decree and obtain whatever benefit that is available to him. The first defendant has not taken any steps to execute it all along for a period of 12 years. It is relevant to note that under Article 136 of the Limitation Act, 1963, the period to execute a decree provided is 12 years from the date of decree or order became enforceable. Though this decree could have been executed by the first defendant immediately after passing of the decree, he did not file execution petition within the time prescribed by law. Therefore, on the date when the suit came 20 RSA No.2004/2008 C/W RSA NO.2003/2008 to be filed i.e., in the year 1987, the claim of first defendant in a decree Ex.P3 was barred. Hence, he cannot seek enforcement of any rights accrued in his favour under this decree.
11. So far as other contention is concerned, it is not in dispute that the father of first defendant had instituted a suit in OS No.352/1978 seeking possession of the suit property on the ground that the first defendant had sold the properties fallen to his share and his father contended that in view of the sale of property fallen to the share of the first defendant, he cannot seek any benefit under the decree and hence instituted the suit for possession of the suit property. At this stage, it is relevant to note that his suit was instituted in the year 1978 i.e., within 8 years after obtaining the decree, which was still executable as it was not barred by time then. 21 RSA No.2004/2008
C/W RSA NO.2003/2008
12. Furthermore, it is important to note that the said suit instituted was on different grounds. The plaintiff has produced copy of judgment and decree in RA No.26/1981 filed by his father and perusal of the decree would clearly indicate that first defendant had sold his lands to one K Chandrashekarappa Gowda of Nadamanchale village on 12.04.1976 for a sum of Rs.22,000/-. His father felt that defendant No.1 failed to perform his part of obligation agreed under the compromise in OS No.352/1970 and hence, instituted a suit for possession. The Court held that as there was no such obligation/condition incorporated in the compromise decree giving the right to his father to claim possession in case if first defendant sells his properties, the suit came to be dismissed. The cause of action that was made out by the father of first defendant was 22 RSA No.2004/2008 C/W RSA NO.2003/2008 different and as the present suit is instituted for partition and separate possession of the share, the decree of dismissal in OS No.357/1978 would not be an impediment or obstacle for the parties to claim his share in the suit property.
13. The first defendant obtained the compromise decree Ex.P3 on the ground of inequitable partition between the members of family and therefore, was troubling his father to whose share the suit property of Halavagodu bearing Sy.No.4 measuring 4 acres and 4 guntas was given towards his share. If really, he had a grievance of inequitable partition, he was entitled to seek re-opening of the partition within the time limited. That apart, it was not only the father who has to compensate him as the family properties were partitioned between the other co-parceners or sharers as well. When the first defendant did not take any steps to re- 23 RSA No.2004/2008
C/W RSA NO.2003/2008 open the partition on the ground of inequitable partition, he cannot seek the relief against his father alone and having kept quite all along from the date of registered partition in the year 1962 cannot make any claim against the plaintiff or the other defendants. So taking into consideration the grounds stated above, the substantial question No.1 is held in 'Negative' and substantial question No.2 in 'Affirmative'.
Consequently, the appeals fail and they are accordingly dismissed.
Sd/-
JUDGE *bgn/-