Karnataka High Court
Sri T Mariyappa @ Chikkaganganarasaiah vs Sri Thammaiah on 16 February, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.1505/2013(INJ)
BETWEEN:
SRI.T.MARIYAPPA
@ CHIKKAGANGANARASAIAH,
S/O LATE GANGENAHALLI,
NARASIMHAIAH,
AGED ABOUT 82 YEARS,
RESIDENT OF THAVAREKERE VILLAGE,
THAVAREKERE HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE: 562 130. ... APPELLANT
(BY SRI. INDUSHEKAR.B.T. ADVOCATE)
AND:
1. SRI.THAMMAIAH
@ GANGANARASIMHAIAH,
S/O LATE GANGENAHALLI,
NARASIMHAIAH,
SINCE DEAD BY HIS LRs.:
1(1) SMT. VENKATALAKSHMAMMA,
W/O LATE THAMMAIAH,
AGED ABOUT 80 YEARS,
1(2) SRI.CHIKKANNA,
S/O LATE THAMMAIAH,
AGED ABOUT 55 YEARS,
2
1(3) SRI. NAGARAJU,
S/O LATE THAMMAIAH,
AGED ABOUT 48 YEARS,
1(4) SRI.SRINIVAS,
S/O LATE THAMMAIAH,
AGED ABOUT 46 YEARS,
RESPONDENTS No.1(1) TO 1(4)
ARE RESIDENTS OF THAVAREKERE VILLAGE,
THAVAREKERE HOBLI, BANGALORE SOUTH TALUK,
BANGALORE - 562 130.
1(5) SMT. CHIKKAMMA, W/O LATE PUTTARAJU,
AGED ABOUT 42 YEARS,
1(6) SRI. MANJUNATH, S/O LATE PUTTARAJU,
AGED ABOUT 21 YEARS,
1(7) SRI.SOMASHEKAR, S/O LATE PUTTARAJU,
AGED ABOUT 19 YEARS,
RESPONDENTS No.1(5) TO 1(7)
ARE RESIDING AT No.42,
CANARA BANK ROAD,
THAVAREKERE, MAGADI MAIN ROAD,
BANGALORE SOUTH TALUK.
2. SRI. GANGAIAH,
S/O THAMMAIAH,
AGED ABOUT 59 YEARS,
RESIDENT OF THAVAREKERE VILLAGE,
THABAREKERE HOBLI,
BANGALORE SOUTH TALUK,
PIN CODE 562 130. ... RESPONDENTS
(BY SRI.C.M.NAGABHUSHAN, ADVOCATE
FOR R-1(1 TO 4) & R-2;
R-1(5) TO R-1(7) SERVED AND UNREPRESENTED)
3
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.07.2013
PASSED IN R.A.No.70/2012 ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE, RAMANAGARA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 01.08.2012 PASSED IN O.S. No.84/1997 ON THE FILE
OF PRINCIPAL CIVIL JUDGE AND JMFC, MAGADI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This second appeal arises out of a suit filed for injunction, which was admittedly between the brothers.
2. In this second appeal, the parties have filed a compromise petition in which the respondents have undertaken that they would not interfere with the possession of the appellant in respect of the Western portion of the land measuring 08 guntas out of an extent of 13 guntas in Sy.No.57/1.
3. Similarly, the appellant has also undertaken that he would not interfere with the possession of the respondents in respect of the Eastern portion of the land 4 measuring 05 guntas out of an extent of 13 guntas in Sy.No.57/1.
4. The appellant has also stated that he would have no objection for allowing of Writ petition No.6664 of 2016 [KLR-RES] which is pending before this Court, in which the order passed by the Karnataka Appellate Tribunal has been challenged. It is stated that those proceedings relate to the setting aside of the Phodi order dated 25.02.1993 and for restoration of the Phodi as it stood before.
5. It is also admitted by the parties that the abutting properties were also divided and a Phodi was effected and the actual possession of the lands as divided has been demarcated in the sketch enclosed to the compromise petition.
6. It is also agreed between the parties that a survey can be secured by either of the parties to fix the boundaries/Haddu bastu if it was found necessary. 5
7. An undertaking is also given that the respondents would withdraw the appeal filed by them before the Karnataka Appellate Tribunal in Appeal No.667 of 2019.
8. In my view, the compromise entered into between the parties is lawful. It is also to be stated here that the appellant and the original 1st respondent are the brothers and by virtue of this compromise, though arrived in a suit for injunction, are basically resolving all the disputes between them. In my view, this compromise, therefore, deserves to be accepted.
9. The terms of the compromise read as under:
"5. Terms of compromise:
a. The Respondents hereby undertake and assure the appellant that, neither the respondents nor their heirs/ anybody claiming for and on their behalf would interfere with the possession of the Appellant in respect of Western portion of the land measuring 08 Guntas out of 13 Guntas in the land bearing Sy.No.57/1, situated that, at Thavarekere Village, Thavarekere Hobli, Bengaluru South Taluk, Bengaluru, which is morefully described in 6 the Schedule A to this Compromise petition and hereinafter referred to as A SCHEDULE PROPERTY, which is in his possession and occupation since from the year 1967-68.
b. Likewise the Appellant hereby undertake and assure the Respondents that, neither the Appellant nor his heirs/anybody claiming for and on his behalf would interfere with the possession of the Respondents in respect of Eastern portion of the land measuring 05 Guntas out of 13 Guntas in the land bearing Sy.No.57/1, situated that, at Thavarekere Village, Thavarekere Hobli, Bengaluru South Taluk, Bengaluru, which is morefully described in the Schedule B to this Compromise petition and hereinafter referred to as B SCHEDULE PROPERTY, which is in their possession and occupation since from the year 1967-68.
c. It is further agreed between the parties to the appeal to put an end to all the litigations pending between the Appellant and the respondents, the appellant do hereby submit his no objection for allowing the Writ Petition in W.P.No.6664/2016 (KLR-RES) pending on the file of this Hon'ble Court filed by the respondents challenging the order dated 31.08.2015, passed by the Karnataka Appellate Tribunal in Appeal No.619/2007 filed by 7 the Appellant herein whereby the Tribunal has set aside the phodi order bearing No.ADLR/BS/MPR/244/1990-91 & TQCR/3/1993- 94 dated 25.02.1993 and to restore the phodi as it stood before. Though the phodi order bearing No.ADLR/BS/MPR/244/1990-91 & TQCR/3/1993- 94 dated 25.02.1993 is not in accordance with Panchayath Parikath dated 10.05.1965, the parties to the compromise petition do hereby agree and ratify the allocation as per the phodi order bearing No. No.ADLR/BS/MPR/244/1990-91 & TQCR/3/1993-94 dated 25.02.1993.
d. It is further agreed between the parties that, under the partition even though the Sy.Nos.199 and 200 were equally divided between the parties they were enjoying the properties with little variations and accordingly while effecting the phodi, according to the possession of the parties the Sy.No.200 was phoded as 200/1, 200/2 and 200/3 and Sy.No.199/1 and 199/2 and the respondents are shown as owners in possession of 0.22 guntas in Sy.No.199/2, 2 Acres 20 Guntas in Sy.No.200/1 and 0.06 guntas in Sy.No.200/3. Likewise, the appellant is shown as owner in possession of 0.18 guntas in Sy.No.199/1 and 2 Acres 34 guntas in Sy.No.200/2 and the parties 8 admit their ownership and possession. Sketch annexed and shall be part of this compromise. e. It is agreed between the parties that, both the parties can get survey conducted and fix the boundaries/Haddubasth as per the Compromise Petition if necessary.
f. It is agreed between the parties that, the respondents herein would withdraw the Appeal filed by them before the Karnataka Appellate Tribunal in Appeal No.667/2019 challenging the conversion in Case No.ALN(ST)SR 218/2015-16, passed by the Deputy Commissioner, Bengaluru in favour of the Appellant herein.
g. It is agreed by both the parties that, henceforth the Appellant shall be in possession and occupation of the A schedule property as absolute owner without any threat of interference of whatsoever from the respondents. Likewise, the respondents shall be in possession and occupation of the B Schedule property as absolute owners without any threat of interference of whatsoever from the Appellant.
3. The appellant and respondents submit that, they have entered into this compromise out of their free will and volition. There is no undue force, 9 coercion or undue influence of any sort by anybody on either of the parties.
A SCHEDULE PROPERTY All that piece and parcel of the Western portion of the land measuring 08 Guntas out of 13 Guntas in the land bearing Sy.No.57/1,situated at Thavarekere Village, Thavarekere Hobli, Bengaluru South Taluk, Benglauru and bounded on:-
East by : 05 Guntas of land in same Survey number belonging to the Respondents. West by : Sarkari Katte North by : Land bearing Sy.No.199/1 belonging to Appellant South by : Road B SCHEDULE PROPERTY All that piece and parcel of the Eastern portion of the land measuring 05 Guntas out of 13 Guntas in the land bearing Sy.No.57/1,situated at Thavarekere Village, Thavarekere Hobli, Bengaluru South Taluk, Benglauru and bounded on:-
East by : Land bearing Sy.No.200/3, belonging to the Respondents.
West by : 08 Guntas of land in same survey number belonging to the Appellant 10 North by : Land bearing Sy.No.199/2 belonging to Respondents South by : Road WHEREFORE, the appellant and respondents humbly pray that this Hon'ble Court be pleased to allow the appeal in terms of this Compromise Petition Sd/- Sd/-
ADVOCATE FOR APPELLANT APPELLANT
Sd/- Sd/-
ADVOCATE FOR RESPONDENTS RESPONDENTS
1(a) TO (d) AND 2"
10. The parties are present before the Court and identified by their respective Counsel. They also accept the factum of entering into the compromise on their own free will and volition.
11. In view of the above, accepting the compromise petition, this second appeal is disposed of in terms of the compromise petition.
Sd/-
JUDGE RK CT:SN