Karnataka High Court
Sri.M.R.Seetharam vs Sri.M.R.Raghuram on 19 November, 2018
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
W.P.Nos.17232-17235 OF 2017 (GM-CPC)
BETWEEN:
1. SRI.M.R.SEETHARAM
SON OF LATE SRI M.S.RAMAIAH
AGED ABOUT 61 YEARS,
2. SRI M.R. PATTABHIRAM
SON OF LATE SRI M.S.RAMAIAH
AGED ABOUT 56 YEARS,
3. SRI M.R. KODANDARAM
SON OF LATE SRI M.S.RAMAIAH
AGED ABOUT 54 YEARS,
4. SRI M.R.ANANDARAM
SON OF LATE SRI M.S.RAMAIAH
AGED ABOUT 51 YEARS,
ALL RESIDING AT "GOKULA HOUSE"
GOKULA EXTENSION
M.S.RAMAIAH ROAD
MATHIKERE
BENGALURU-560 054.
... PETITIONERS
(BY SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI.KAMALACHARAN S R., ADV.)
2
AND:
1. SRI.M.R.RAGHURAM
SON OF LATE SRI M.S.RAMAIAH
AGED ABOUT 58 YEARS,
2. SRI. M.R.JAYARAM
SON OF LATE SRI M.S.RAMAIAH
AGED ABOUT 70 YEARS,
3. SRI. M.R. SAMPANGIRAMAIAH
SON LATE SRI M.S.RAMAIAH
AGED ABOUT 67 YEARS,
4. SRI. M.R.JANAKIRAM
SON OF LATE SRI M.S.RAMAIAH
AGED ABOUT 58 YEARS,
5. SMT. M. R. PRABHAVATHY
DAUGHTER OF LATE SRI M.S.RAMAIAH
AGED ABOUT 63 YEARS,
6. SMT. M.R.PADMAVATHY
DAUGHTER OF LATE SRI M.S.RAMAIAH
AGED ABOUT 53 YEARS,
ALL RESIDING AT "GOKULA HOUSE"
GOKULA EXTENSION
M.S.RAMAIAH ROAD
MATHIKERE
BENGALURU-560 054.
... RESPONDENTS
(BY SRI.D.N. NANJUNDA REDDY, SR. COUNSEL FOR
SRI.JAGADEESH C.K. ADV. FOR C/R3-R6
SRI. R.B.SADASHIVAPPA, ADV. FOR R1 AND
SMT. FARAH FATHIMA, ADV. FOR R2)
3
THESE WRIT PETITIONS ARE FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN O.S.NO.1478/2006 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, SET-ASIDE
THE ORDER DTD:11.4.2017 (ANNEXURE-K) PASSED THEREIN
ON THE COMPROMISE PETITION AND DECREE THE SUIT IN
TERMS OF THE COMPROMISE PETITION BETWEEN THE
PETITIONERS AND R1.
THESE WRIT PETITIONS COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court under Article 227 of the Constitution of India, assailing the order dated 11-04-2017 passed in O.S.No.1478/2006 by the Senior Civil Judge and JMFC, Devanahalli, by which I.A. filed by the petitioners and respondent No.1 under Order 23 Rule 3 of CPC is kept open for consideration at the time of final disposal of the suit.
2. The brief facts of the case are as follows:
The petitioners 1 to 4 and respondents 2 to 6 are defendants and respondent No.1 is plaintiff in O.S.No.1478/2006 filed praying for the following reliefs: 4
(i) DECLARE that the document termed as "memorandum of confirmation of oral family arrangement cum partition" dated 18-11-2005, registered as document No.DNH-1-04097-
2005-06, in Book I, in C.D.No.DNHD68, on 18-11-2005, in the office of the Sub-Registrar, Devanahalli, is not binding on the plaintiff and is Void.
(ii) ISSUE A PERMANENT INJUNCTION restraining the defendants, their legal heirs, servants, agents and workers and/or any person or persons claiming through or under them either directly or indirectly from interfering with the plaintiff's peaceful possession and enjoyment of the Suit Schedule A properties.
(iii) ISSUE A PERMANENT INJUNCTION restraining the Defendants, their heirs, representatives, assigns, etc., and/or their agents and any other person/persons claiming through or under them from selling, mortgaging, leasing or in any way alienating or creating any charges, encumbrances, or parting with the possession of the suit schedule B properties or any portion thereof, in favour of any third 5 party/ies in pursuance of document termed as "memorandum of confirmation of oral family arrangement cum partition" dated 18-11-2005, registered as document No.DNH-1-04097-2005- 06, in Book I, in C.D.No.DNHD68, on 18-11-2005, in the office of the Sub-Registrar, Devanahalli.
(iv) direct the Defendants to pay the cost of this suit and grant such other and further reliefs as are just.
3. It is the case of the plaintiff that under partition dated 01.04.1970 the properties belonging to the family of the plaintiff and defendants were partitioned and parties are in possession of their respective shares. The defendants further entered into a registered memorandum of confirmation of oral partition on 18.11.2005. The properties which fell to the shares of defendants under partition dated 01.04.1970 were rearranged. The plaintiff is not a party to the memorandum of confirmation dated 18.11.2005. The plaintiff/respondent No.1 herein filed suit in O.S.No.1478/2006 and sought among other prayers for 6 declaration of the said memorandum of confirmation dated 18.11.2005 is not binding on him and is void.
4. The defendants 1, 2, 5, 8 and 9 filed their common written statement and also additional written statement contending that since plaintiff is not a party to the confirmation deed dated 18.11.2005, the question of granting any relief would not arise. Further it is contended that the plaintiff's property mentioned in schedule 'A' to the plaint has not been affected in any manner by confirmation deed dated 18.11.2005 and property falling to the share of the plaintiff is not in any way disturbed or divided in the memorandum of confirmation. The defendants 3, 4, 6 and 7, who are petitioners herein filed their separate written statement contending that the plaintiff has no right to challenge the confirmation deed dated 18.11.2005.
5. The petitioners herein who are defendants 3, 4, 6 and 7 along with plaintiff/respondent No.1 herein, filed application dated 01.02.2017 under Order 23 Rule 3 of 7 CPC. Relevant portion of the said application reads as follows:
"2. According to the settlement arrived at by the above parties, the defendants 3, 4, 6 and 7 have realized/felt that the apprehension of the Plaintiff is mainly that under the two documents viz., Memorandum of Confirmation of Oral Family Arrangement-cum-partition 18-11-2005 and also 28-08-2006 are affecting his ownership, possession and enjoyment of the Suit Schedule A Property and therefore, the same is to be declared as not binding on him and his interests. It is submitted that the contention of the Defendants 3, 4, 6 and 7 is still that the same is not going to affect the interests of the Plaintiff and it is only a mutual understanding between themselves and the Defendants 1, 2, 5, 8 and 9.
3. The Defendants 3, 4, 6 and 7 hereby specifically declare that the Plaintiff is the absolute owner in possession and enjoyment of suit Schedule A Property in item Nos.
(1) Sy.No.37/32 measuring 3 acres 3 guntas, (2) Sy.No.32 measuring 7 acres 8 guntas, (3) Sy.No.37/19 measuring 12 acres, 8 (4) Sy.No.37/20 measuring 18 acres, (5) Sy.No. 37/21 measuring 13 acres, (6) Sy.No.37/25 measuring 8 acres and (7) Sy.No.36/7 measuring 1 acre in Akkalenahalli-Mallenahalli Village, as on date. Plaintiff hereby specifically declares that the Defendants 3, 4, 6 & 7 are the owners in possession and enjoyment of properties that were allotted to them under the Memorandum of Confirmation of Oral Family Arrangement-cum-
partition 18-11-2005 and also 28-08-2006.
4. The Defendants 3, 4, 6 & 7 voluntarily undertake that they will not interfere with the peaceful possession and enjoyment of the Plaintiff's Suit Schedule A Properties in any manner whatsoever.
5. The Defendants 3, 4, 6 & 7 declare that they have not made any kind of dealings with any persons under the shelter of the two documents viz., Memorandum of Confirmation of Oral Family Arrangement-cum-Partition 18-11-2005 and also 28-08-2006 so as to affect the interests of the Plaintiff.
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6. The above compromise shall bind the interests of the Defendants 3, 4, 6 & 7 and also any persons with whom they have made any kind of dealings under the two documents viz., Memorandum of Confirmation of Oral Family Arrangement-cum-Partition dated 18-11-2005 and 28-08-2006 during the pendency of the above case affecting the interests of the Plaintiff, if any.
7. The Defendants 3, 4, 6 & 7 submit that the above compromise is only between them and Plaintiff and hence they have no objection for the Plaintiff to prosecute and continue the above case as against the remaining Defendants.
8. The Defendants 3, 4, 6 & 7 hereby agree to cooperate with the Plaintiff in the survey of Plaintiff's Schedule A Property.
9. If for any reason, any person/third parties were to make any kind of claim with respect to the Suit Schedule A Properties against the Plaintiff under any of the contracts/agreements entered into by them with Defendants 3, 4, 6 & 7 during the pendency of 10 the above suit under the shelter of the two documents, viz., Memorandum of Confirmation of Oral Family Arrangement-cum-Partition 18-11- 2005 and also 28-08-2006 they undertake to set right the same at their responsibility.
10. The Plaintiff and the Defendants 3, 4, 6 & 7 submit that there shall be a decree in terms of the above compromise and the above compromise shall be a part of the decree.
6. The sum and substance of the above compromise petition is that the plaintiff declared that the defendants 3, 4 6, and 7 are the owners in possession and enjoyment of the properties that were allotted to them under the memorandum of confirmation dated 18.11.2005 and 28.08.2006. Further, in the said application it is stated that the compromise is only between defendants 3, 4, 6, 7 and plaintiff and have no objection for the plaintiff to prosecute and continue the suit against the remaining defendants.
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7. The defendants 1, 2 5, 8 and 9 filed their objections opposing the application filed under Order 23 Rule 3 of CPC for compromise filed by defendants 3, 4, 6, 7 along with plaintiff. They contended that the partial compromise between some of the defendants and plaintiff is not maintainable. Further it is contended that where severability of the dispute is involved in a suit, a partial compromise cannot be effected. In that partial compromise in respect of in-severable dispute with a few parties to the suit and permitting the plaintiff to continue the suit against the non-parties to the compromise in respect of the same in-severable dispute cannot be entertained.
8. The trial Court, by its order dated 11.04.2017 kept open the I.A. filed for compromise under Order 23 Rule 3 of CPC for consideration at the time of final disposal of the suit. The said order is impugned in these writ petitions.
9. Heard Sri Udaya Holla, learned Senior Counsel for the petitioners, Sri Nanjunda Reddy learned Senior Counsel 12 for the respondents No.3 to 6, Sri Shashikiran Shetty, learned Senior Counsel for respondent No.2 and Sri R.B. Sadashivappa, learned counsel for respondent No.1. Perused the writ papers.
10. Learned Senior Counsel appearing for the petitioners submits that the order of the trial Court is erroneous and the trial Court failed to exercise the jurisdiction vested in it. It is submitted that as the properties partitioned between the plaintiff and defendants under partition dated 01.04.1970 were scattered and at different places, the defendants entered into a registered memorandum of confirmation of oral portion on 18.11.2005, wherein properties partitioned were rearranged, so as to get contiguity of properties allotted to each of the defendants to form a compact block. The trial Court ought to have passed orders on I.A. filed under Order 23 Rule 3 of CPC either allowing the application or rejecting the application, but on the contrary, deferred the application. The learned 13 Senior Counsel further submits that partial compromise is permissible under Order 23 Rule 3 of CPC and the Court has to look into, as to whether compromise entered into is lawful or whether it violates any statutory provisions. If it is lawful the Court shall allow the compromise. Learned Senior Counsel in support of his submission that partial compromise is permissible, relied upon the decisions reported in AIR 1971 SC 1081 (PARA 8); 1974 1 SCC 567 (PARAS 59 & 64); AIR 2013 SC 961 (PARA 36) and AIR 1996 BOMBAY 338 (para 12).
11. Per contra, learned Senior Counsel appearing for some of the respondents submits that partial compromise is not permissible in the facts of the present case, as the document under challenge cannot be held to be valid insofar as petitioners and respondent No.1 are concerned and invalid in respect of other respondents/defendants. Further it is submitted that while considering the compromise petition filed by some of the parties to the suit, 14 the Court shall examine as to whether such compromise affects the rights of other parties to the suit. It is further submitted that the plaintiff cannot accept in part the document dated 18.11.2005 insofar as petitioners are concerned and it is not open for the plaintiff to say that the document dated 18.11.2005 is bad insofar as the other defendants are concerned. Further the learned Senior Counsel submits that the plaintiff is not a party to document dated 18.11.2005, hence he cannot declare that defendants 3, 4, 6 and 7 are owners in possession. Learned Senior Counsel Sri Shashi Kiran Shetty, supporting the submission of Sri Nanjunda Reddy, learned Senior Counsel adds that the compromise shall if entered into between the parties shall put an end to the litigation, but in the present case it is not so. Further, he submits that under document dated 18.11.2005, the shares of each of the parties have been re-arranged and re-adjusted, changing the position as stood under partition deed dated 01.04.1970. Sri R.B. Sadashivappa, learned Counsel 15 appearing for respondent No.1 - plaintiff, supports the petitioners.
12. Having heard the learned counsel for the parties and on going through the writ papers the only question which arises for consideration is as to "Whether the trial Court is justified in keeping open the application filed under Order 23 Rule 3 of CPC by the petitioners for consideration at the time of final disposal of the suit?"
13. The suit is one for declaration that the memorandum of confirmation of oral family arrangement-cum-partition deed dated 18.11.2005 is not binding on the plaintiff, void and for permanent injunction. The case of the plaintiff is that the plaintiff and defendants 1 to 9 are the sons of late one M.S. Ramaiah. During the lifetime of M.S. Ramaiah, partition took place on 01.04.1970 between M.S. Ramaiah and his nine children. Pursuant to the partition, each of them are in possession of their share under partition dated 01.04.1970. In the year 1997 M.S. 16 Ramaiah died and his share of properties were divided amongst his children i.e., plaintiff and defendants to the suit. On 18.11.2005, the defendants except the plaintiff entered into a memorandum of confirmation of oral family arrangement-cum-partition, re-arranging and re-adjusting the shares allotted to them under partition deed dated 01.04.1970, so as to get contiguity of the properties and to have a compact block of their share. Admittedly, the plaintiff is not a party to the said document dated 18.11.2005. The plaintiff filed suit seeking for declaration to declare the said document not binding on the plaintiff and to declare it as void. The defendants No.1 to 5, 8 and 9 filed written statement and additional written statement inter alia contending that the plaintiff has no right to challenge the document dated 18.11.2005 as he is not a party to the said document. Defendants No.3, 4, 6 and 7 filed separate written statement inter alia contending that the defendants re-arranged their respective shares and have not in any manner shifted or re-located the share of 17 the plaintiff. When the matter was at the stage of consideration of pending I.As.24 to 27, the petitioners who are defendants No.3, 4, 6 and 7 along with the plaintiff filed compromise petition under Order 23 Rule 3 of CPC wherein the defendants 3, 4, 6 and 7 declared that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property Item Nos.1, 2, 3, 4, 5, 6 and 7. Further, the plaintiff declared that defendants 3, 4, 6 and 7 are the owners in possession and enjoyment of the properties that were allotted to them under document dated 18.11.2005. Admittedly, defendants 1, 2, 5, 8 and 9 are not parties to the compromise petition.
14. Order 23 Rule 3 of CPC provides for compromise of the suit between the parties to the suit. The parties to the compromise shall prove to the satisfaction of the Court that the suit has been adjusted wholly or in part in writing and signed by the parties and the Court shall record satisfaction with regard to the compromise of the subject 18 matter of the suit. Even though much has been argued by the learned Senior Counsel for the petitioner with regard to partial compromise, but this Court need not go into the question as to whether partial compromise is permissible or not in the case on hand. In the case on hand, the Court has to examine as to whether the compromise entered into between the plaintiff and the defendants No.3, 4, 6 and 7 would affect the other defendants 1, 2, 5, 8 and 9. The respondents/defendants have filed a memo dated 10.11.2017 producing sketches (9) to show that how the properties under document dated 18.11.2005 have been rearranged and readjusted among the defendants. On going through the same, it is seen that land allotted to defendants No.2, 3, 4 and 6 under partition deed dated 01.04.1970 have been allotted to defendant No.3 (Petitioner No.1); property allotted to defendants No.2 and 5 under partition deed dated 01.04.1970 have been allotted to defendant No.4 (Petitioner No.2); properties allotted to defendants No.2, 4 and 5 as per partition deed dated 19 01.04.1970 is allotted to the share of defendant No.6 (Petitioner No.3) and land allotted to defendants No.2 and 6 under partition deed dated 01.04.1970 is allotted to defendant No.7 (Petitioner No.4). The trial Court is justified in deferring the application filed under Order 23 Rule 3 of CPC by the plaintiff and defendants No.3, 4, 6 and 7 for the reason that if the compromise petition is allowed document dated 18.11.2005, which is under challenge would be valid insofar as defendants 3, 4, 6 and 7 are concerned. The plaintiff after entering into compromise with defendants No.3, 4, 6 and 7 intends to continue the suit against the other defendants and suppose, ultimately after trial, if the suit is decreed, the document dated 18.11.2005 becomes invalid insofar as defendants No.1, 2, 5, 8 and 9 are concerned. The document dated 18.11.2005 and dispute involved in the suit is inseparable. As the document dated 18.11.2005 is inseparable, the trial Court has rightly deferred the consideration of compromise for consideration at the stage of disposal of the suit. Further, if the 20 compromise petition is accepted it would prejudice the case of the other defendants against whom the suit would continue leaving out the defendants No. 3, 4, 6 and 7. If the suit is ultimately decreed declaring the document dated 18.11.2005 as not binding and is void, the compromise entered into between the plaintiff and the defendants No.3, 4, 6 and 7 would become invalid. If that is so, accepting or rejecting compromise at this stage is a futile exercise and moreover, it would lead to further litigation. One of the objects of Order 23 Rule 3 of CPC is to put an end to the litigation between the parties and not to give rise to litigations. Moreover, under Order 23 Rule 3 of CPC, unless and until the Court is satisfied with regard to the compromise entered into between the parties, the Court shall not proceed to pass orders on such compromise.
15. The trial Court has deferred the consideration of the application filed under Order 23 Rule 3 of CPC and the impugned order has not caused any injustice or prejudice 21 to the petitioners. The Hon'ble Supreme Court in the case SADHANA LODH VS. NATIONAL INSURANCE CO. LTD AND OTHERS reported in (2003) 3 SCC 524 at para 7 has held as follows :-
"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision."22
16. For the foregoing reasons, I am of the opinion that the trial Court is justified in deferring the consideration of the application filed under Order 23 Rule 3 of CPC by the petitioners at the time final disposal of the suit and the question is answered in the affirmative. The petitioners have not made out any ground to interfere with the impugned order dated 11.04.2017, under Article 227 of the Constitution of India, writ petitions are dismissed.
Sd/-
JUDGE mpk/-* NG*PR.9 CT:bms