Karnataka High Court
Rukmini W/O Appaji Majukar vs Mahaveer S/O Baswantappa Bogar on 26 February, 2016
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
R.S.A. NO. 1117/2003 (S.P)
BETWEEN:
1. RUKMINI W/O APPAJI MAJUKAR,
AGE: 70 YRS, OCC.: H/W,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
2. SRI SHIVAJI S/O APPAJI MAJUKAR,
AGE: 52 YRS, OCC.: TRADE,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
3. SRI VASANT S/O APPAJI MAJUKAR,
AGE: 50 YRS, OCC.: TRADE,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
4. SRI AJIT S/O APPAJI MAJUKAR,
AGE: 48 YRS, OCC.: TRADE,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
5. SRI SHANTARAM S/O APPAJI MAJUKAR,
AGE: 46 YRS, OCC.: SERVICE,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
6. SRI RAJARAM S/O APPAJI MAJUKAR,
AGE: 44 YRS, OCC.: TRADE,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
7. SRI SANJAY S/O APPAJI MAJUKAR,
AGE: 42 YRS, OCC.: TRADE,
R/O: H. NO. 2019, KORE GALLI,
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SHAHAPUR, BELGAUM.
8. BY GPA HOLDER SRI AJIT APPAJI MAJUKAR,
AGE: 482 YRS, OCC.: TRADE,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
- APPELLANTS
(BY SRI. SACHIN S. MAGADUM, ADVOCATE)
AND:
1. SRI MAHAVEER S/O BASAWANTAPPA BOGAR,
AGE: 70 YRS, OCC.: BUSINESS,
R/O: BASAWAN KUDACHI,
TAL & DIST: BELGAUM.
2. SRI NARAYANRAO S/O KRISHNARAO
GAIKWAD SINCE DECEASED BY HIS LRS.
2a). SMT. NIRMALA W/O NARAYAN GAIKWAD,
AGE: 78 YRS, OCC: H/W,
R/O 3589, KHANJAR GALLI,
BELGAU, TAL & DIST. BELGAUM.
2b). MEDHA D/O NARAYAN GAIKWAD,
AGE: 42 YRS, OCC: H/W,
R/O 3589, KHANJAR GALLI,
BELGAU, TAL & DIST. BELGAUM.
2c). SUPRIYA W/O SUNIL DATALE,
AGE: 36 YRS, OCC: H/W,
R/O: GONDHALE APARTMENT,
KRISH COLONY, SANGALI,
TAL & DIST: SANGALI,
STATE : MAHARASTRA.
2d) SMT. JANAVI W/O VIASHAL REDKAR,
AGE: 32 YRS, OCC: H/W,
R/O LAXMI NAGAR, GANESHPUR,
BELGAUM, TAL & DIST: BELGAUM.
3. SRI NEMI S/O DEVENDRAPPA LAGAMANNAVAR,
AGE: 80 YRS, OCC.: BUSINESS,
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R/O: PLOT NO. 291, GOODSHED ROAD,
BELGAUM.
4. DHANAPAL S/O BAWANT BHOPAL,
SINCE DECEASED BY HIS LRS.
4a. KALAWATI W/O DHANAPAL BOGAR,
AGE: 60 YRS, OCC: H/W,
R/O BASAVAN KUDACHI,
TAL & DIST: BELGAUM.
4b. RANJEET S/O DHANAPAL BOGAR,
AGE: 40 YRS, OCC: AGRICULTURE,
R/O BASAVAN KUDACHI,
TAL & DIST: BELGAUM.
4c. SANDESH W/O SUNIL BOGAR,
AGE: 3 YRS,
R/O BASAVAN KUDACHI,
TAL & DIST: BELGAUM.
4d. SMT. SAVITA W/O SUNIL BOGAR,
AGE: 32 YRS, OCC:
R/O BASAVAN KUDACHI,
TAL & DIST: BELGAUM.
4e. SHAMA D/O DHANAPAL BOGAR,
AGE: YRS, OCC: H/W,
R/O BASAVAN KUDACHI,
TAL & DIST: BELGAUM.
5. SRI DHARMU ALIAS DHARENDRA,
S/O NAMU LAGAMANNAVAR,
AGE: 55 YRS, OCC.: BUSINESS,
R/O: PLOT NO 291, GOODSHED ROAD,
BELGAUM.
6. SRI MAHENDRA S/O NAMU LAGAMANNAVAR,
AGE: 50 YRS, OCC: BUSINESS,
R/O: H. NO. 2019, KORE GALLI,
SHAHAPUR, BELGAUM.
7. SRI ULHAS S/O NARAYAN GAIKWADI,
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AGE: 45 YRS, OCC: BUSINESS,
R/O 3589, KHANJAR GALLI, BELGAUM.
8. SRI VIKRAM S/O SHANKARRAO GAIKWAD,
AGE: 43 YRS, OCC.: BUSINESS,
R/O 3589, KHANJAR GALLI, BELGAUM.
9. SRI GAJANAN S/O BALARAM GHORPADE,
AGE: 40 YRS, OCC.:
R/O: H. NO. 244/97,
FULBAGGALLI, BELGAUM.
10. SRI PRADEEP S/O BALARAM GHORPADE,
AGE: 30 YRS, OCC.:
R/O 3589, KHANJAR GALLI, BELGAUM.
11. SMT. RAJASHREE VIJAY HINDALGEKAR,
AGE: 38 YRS, C/O V.I. HINDALGEKAR,
OPP. MAHADEV TEMPLE,
SADASHIVNAGAR, BELGAUM.
12. SMT. JAYASHREE R. POWAR,
AGE: 35 YRS, C/O MADHUKAR
PAWAR, ADVOCATE, MAIN LANE,
NEAR HOTEL APSARA, DHARWAD.
13. SMT. MANISHA W/O BALARAM GHORPADE,
AGE: 28 YRS, R/O: H. NO. 244/97,
FULBAGGALLI, BELGAUM.
14. SMT. LAXMIBAI (WRONGLY MENTIONED
AS SHANTABAI) W/O BALARAM GHORPADE,
AGE: 62 YRS, OCC: H/W,
R/O: NO. 244/97, FULBAGGALI, BELGAUM.
15. SRI NEELKANT ALIAS NEELAMANTHA,
S/O VITHAL GHORPADE, AGE: 60 YRS,
OCC: BANK SERVICE, R/O: 274,
SEC. NO. 12, MM EXTENSION, BELGAUM.
16. SRI SHANTARAM S/O VITHAL GHORPADE,
AGE: 58 YRS, OCC.: BUSINESS,
R/O NO. 244/97, FULBAGGALI, BELGAUM.
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17. RAGHUNATH S/O VITHAL GHORPADE,
AGE: 55 YRS, OCC.: BUSINESS,
R/O: CCB NO. 4, MAHADWAR ROAD,
BELGAUM.
18. SRI DINAKAR S/O VITHAL GHORPADE,
AGE: 48 YRS, OCC.: TAX CONSULTANT,
R/O: H. NO. 244/97, FULBAGGALI, BELGAUM.
19. SRI PRAMANAND S/O SANNAPPA HULI,
AGE: 55 YRS, OCC.: GOVT. SERVICE,
R/O: H. NO. 108, VARDHAPPAGALLI,
KHASBAG, BELGAUM.
20. SRI SHRIDHAR S/O S/O SANNAPPA HULI,
AGE: 48 YRS, OCC.: BUSINESS,
R/O: H. NO. 108, VARDHAPPAGALLI,
KHASBAG, BELGAUM.
- RESPONDENTS
(BY SRI. R.M. KULKARNI & SMT. HEMALEKHA. K.S,
ADVOCATES FOR R1, R3, R5 & R6,
SRI RAVI S. BALIKAI, ADVOCATE FOR R2(A-D) & R7,
SRI V.R. DATAR, ADVOCATE FOR R4(A-E),
SRI V.P. KULKARNI, ADVOCATE FOR R19 & 20,
NOTICES TO R8 TO R18 ARE SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED 26.09.2003
PASSED IN R.A. NO. 41/1994 ON THE FILE OF THE II ADDL.
DIST AND SESSIONS JUDGE, BELGAUM, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT & DECREE
DATED 15.07.1994 PASSED IN O.S. NO. 129/1987 ON THE FILE
OF THE II ADDL. CIVIL JUDGE, BELGAUM & ETC.
THIS R.S.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
1. This appeal has been heard at length. During the course of hearing of the appeal, learned counsel for the respective parties sought time to explore the possibility of settlement in the matter. After negotiations, the parties have arrived at a settlement. Today, learned counsel for the respective parties in the presence of the parties in Court have filed memorandum of compromise.
2. This second appeal is filed by the plaintiffs in O.S. No. 129/1987 assailing judgment and decree of the Additional District & Sessions Judge at Belagavi in R.A. No. 41/1994. The appellant-plaintiffs had sought for specific performance of agreement dated 16.09.1986. The trial Court by its judgment and decree dated 15.07.1994 decreed the suit. Being aggrieved by the judgment and decree of the trial Court defendant nos.3 to 11 had preferred R.A. No. 41/1994 before the first appellate Court, which, by its judgment and decree dated 26.09.2003 allowed the appeal and set aside the judgment 7 and decree passed in O.S. No. 129/1987 dated 15.07.1994. The relief of specific performance of contract granted by the trial Court was set aside. The alternative relief was granted.
3. Being aggrieved by the judgment and decree of the first appellate Court, the plaintiffs have preferred this second appeal. On 02.07.2004 this Court admitted this appeal and directed the parties to maintain statusquo regarding possession.
4. As noted above, the parties having settled the matter, have filed memorandum of compromise today through their respective counsel. The parties are present in Court. Learned counsel for the respective parties have identified them. They have admitted that they have arrived at an amicable settlement in the matter out of their own free volition and without there being any force or coercion from anyone. They state that terms of settlement are detailed in the memorandum of compromise. 8
5. The gist of the settlement is that in respect of shop no.1 as shown in the rough sketch attached to the compromise petition, the appellants on receipt of a sum of Rs.15 lakhs from the concerned respondents would vacate and hand over possession of the shop premises to the concerned respondents on 15.03.2016. The payment of Rs.15 lakhs is in two installments. A demand draft for Rs. 8 lakhs bearing no. 001111 dated 24.02.2016 has been enclosed along with the memo is filed today. The said demand draft is drawn on Saraswath Co-Operative Bank Ltd. The balance amount of Rs. 7 lakhs is to be paid to the appellants on 15.03.2016 by a demand draft. On that day, on receipt of the balance amount of Rs.7 lakhs the appellants shall hand over key of the shop no.1 to the respondent nos.1 to 8 by which it would be implied that vacant possession of the shop premises no.1 is handed over to the respondent nos.1 to 8. The other details are mentioned in the compromise petition. Learned counsel for the respective parties submit that the original demand drafts may be kept in the safe custody of the Registry. 9
6. The compromise petition is taken on record. The compromise petition filed through respective parties is signed by the respective parties. In view of the amicable settlement of dispute between the parties, the appeal is liable to be disposed of in terms of the compromise petition. The terms of the compromise petition read as under:
HEREIN, the Appellants and the Respondents beg to file this Compromise Petition in the above case.
(1) The Appellants are the Plaintiffs and they have filed the above appeal as against the judgment and decree dated 26.09.2003 passed in R.A. No. 41/1994 on the file of the 2nd Addl. District and Sessions Judge, Belagavi, thereby reversing the judgment and decree dated 15.07.1994 passed in O.S. No. 129/1987 passed by the 2nd Addl. Civil Judge, Belagavi and ordering refund of the amount of Rs.6000/- with interest to be payable by the Defendants no.1 and 2/ respondents No. 19 and 20 10 herein. The suit property is a shop premises, part of CTS No. 780 now comprised of CTS No. 780/1A+780/1B+780/2+780/3 situated in Raviwar peth, Belagavi. The appellants and the respondents have produced a Rough sketch along with this Compromise application, and the same is to be treated as part and parcel of this compromise application and be incorporated in the decree that would be drawn in the matter.
(2) Now the appellants and the respondents No. 1 to 8 have entered into amicable settlement of the dispute involved in the above case at the intervention of the elders and well wishers of their families and they are submitting herewith the compromise petition duly signed by them as well as their respective Advocates. The terms of the compromise entered into by them are as under.
(a) That the appellants do hereby admit the title of the respondents no. 1 to 8 over the entire property bearing CTS No. 780 consisting of five shop premises 11 as per the Registered Sale Deed dated 04.04.1987 registered on 18.04.1987 and agree that the respondents No. 1 to 8 are the absolute owners of the suit property.
(b) The appellants do hereby admit that they are the tenants of portion No. (1) hereinafter referred as 'Shop No. 1' as shown in the rough sketch produced along with this compromise petition. The appellants have hereby agreed to give up their claim, right, title and interest of whatsoever nature over the said portion of shop premises as per the suit agreement dated 16.09.1986 and the right accrued to them as per the decree passed in O.S. No. 129/1987 in lieu of the consideration that they would be paid by the respondents No. 1 to 8 as mentioned hereunder.
(c) That the respondents No. 1 to 8 have hereby agreed to pay a sum of Rs. 15,00,000/- (Rupees Fifteen Lakhs only) to the appellants towards the full and final settlement of their claim in respect of the 12 suit property and this amount is agreed to be paid in two installments:-
(i) That the respondents No. 1 to 8 would deposit a sum of Rs. 8,00,000/- (Rupees eight lakhs only) before this Hon'ble Court by way of Demand Draft bearing No. 001111 drawn in Saraswat Bank, Belgaum, dated 24.02.2016 payable in favour of the appellant no. 4, namely, Sri Ajit Appaji Majukar, who is also the power of attorney holder of the appellants No. 1 to 3, and 5 to 7. The said demand draft shall be kept in the safe custody of this Hon'ble Court and the same would be handed over to the appellants herein at the time of delivering the vacant possession and handing over the keys of the said shop No. 1 to the respondents No. 1 to 8.
(ii) That the balance amount of Rs.7,00,000/- (Rupees seven lakhs only) is agreed to be paid by the respondents No. 1 to 13 8 on or before 15.03.2016. On payment of the said balance amount of Rs.7,00,000/-, the appellants shall hand over the vacant possession of the shop No. 1 portion and hand over the keys of the shop no. 1 to the respondents No. 1 to 8 without seeking any further extension of time to hand over the vacant possession. The D.D. of Rs.8,00,000/-
(rupees eight lakhs only) which is deposited before this Hon'ble Court by the respondents no.1 to 8 would be paid to the appellants along with the amount of Rs. 7,00,000/- (Rupees seven lakhs only) would be paid to the appellants on or before 15.03.2016. It is specifically agreed by both the appellants and the respondents No. 1 to 8 that the appellants shall hand over vacant possession of the shop No. 1 to the respondents No. 1 to 8 on receipt of the balance amount of Rs. 7,00,000/- on 15.03.2016.
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(d) The appellants do hereby agree and admit that they would not have any claim of whatsoever nature over the suit property, i.e., Shop no. 1 including the shop area recently acquired by the City Municipal Corporation, Belagavi under the Road widening scheme and they would have no objection for the respondents no. 1 to 8 to claim and receive the damages/ compensation for the acquired shop area from the competent authorities including the Municipal Corporation, Belagavi.
(e) The appellants after receiving the entire amount of Rs.15,00,000/- (Rupees Fifteen lakhs only) as stated supra, shall give up all the claims in respect of the suit property and in view of the settlement herein, the appellants do hereby admit that the respondents no. 1 to 8 are the lawful owners of the suit property. The appellants would have no objection to modify the judgment and decree passed by the Courts below as per the terms of the settlement.
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(f) That there is a registered partition deed dated 21.06.1999 that has taken place between the respondent no. 2 Narayanrao Krishnarao Gaikwad and his cousin respondent no.8 Shri Vikram Shankarrao Gaikwad, and the suit property has fallen to the share of the respondent nfo. 2 late Narayanrao Krishnarao Gaikwad and the respondent no.8, Vikram Shankarrao Gaikwad has taken Rs.1,90,000/- in lieu of his share. Therefore, the respondent no.8 is not arrayed as party to this compromise as he has no subsisting right, title or interest over the suit property.
(g) That the respondents no. 9 to 18 are appellants in R.S.A. No. 1118/2003 arising out of judgment and decree passed in connected suit in O.S. No. 128/1987 and they are formal parties in this appeal and hence they are not necessary parties to the present compromise petition.
(h) That the respondents No. 19 and 20 are the original defendants no.1 and 2 in O.S. No. 129/1987. 16 They have executed the registered sale deed in respect of the suit property in favour of the respondents no.1 to 8, i.e., the defendants no. 3 to 5 and 7 to 11 on 04.04.1987 and registered on 18.04.1987. The respondents no. 19 and 20 have no right, title or interest over the suit property after executing the sale deed. Therefore, the respondents no. 19 and 20 are formal parties to this appeal and hence they are not necessary parties to this compromise petition.
(i) The appellants do hereby admit and state that they have not created any 3rd party rights or interest in respect of the suit schedule property. Further, the appellants do hereby agree that they would not damage the suit property in any manner.
(j) That the appellants do hereby agree that they shall clear all dues in respect of the electricity bills, telephone charges etc. if any up to the date of handing over the vacant possession of the suit property to the respondents no.1 to 8. The 17 respondents no.1 to 8 are not liable to pay such arrears till the date of delivery of possession to them.
(k) That the appellants do hereby agree to lend their signatures for charge of khata in favour of the respondents no. 1 to 8 before the Corporation Revenue and City Survey Authorities and by issuing 'no objection' if necessary. Similarly, the appellants do hereby agree to lend their signatures for the change of electricity connection and meter no. and R.R. No. in the name of the respondents no.1 to 8 in respect of the suit property as and when the same are required.
(l) It is hereby agreed and admitted by the appellants and the respondents that they would not have any further claims against each other henceforth.
It is therefore prayed by the appellants and the respondents that this Hon'ble Court be pleased to modify the judgment and decree dated 15.07.1994 18 passed in O.S. No. 129/1987 on the file of the II Addl. Civil Judge Sr. Dn., Belgaum and the judgment and decree dated 26.09.2003 passed in R.A. No. 41/1994 on the file of the II Addl. District and Sessions Judge, Belgaum and the above appeal may be disposed of in terms of the compromise petition and a decree may be passed in terms of the above compromise petition, in the interest of justice and equity.
7. The appeal is disposed of in terms of the compromise petition between the parties. Office to draw up decree in terms of the compromise. In the circumstances, the judgment and decree of the Courts below is substituted by the compromise arrived at between the parties herein.
Registry is directed to refund 75% of the amount of Court fee paid in the appeal to the appellants under Section 66(1) of the Karnataka Court Fees & Suits Valuation (Amendment) Act, 2014.
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Registry is directed to keep in safe custody the demand draft and the memo and put up the demand draft and the memo along with the Court records on 15.03.2016.
Although the appeal is disposed of in terms of the compromise, the matter shall be listed before this Court on 15.03.2016 for the purpose of performance of the rest of the terms of the compromise as narrated above.
Sd/-
JUDGE bvv