Karnataka High Court
Peeranna Since Dead By His Lrs vs K M Mahesh S/O Malleshaiah on 10 July, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO. 1856 OF 2006 (PAR)
C/w
R.S.A NO.1041 OF 2007 (PAR)
IN RSA NO.1856/2006
BETWEEN:
1. SRI MALLESHAIAH
AGED ABOUT 53 YRS
SINCE DEAD BY LRs
1A. SMT.BHAGYAMMA
AGED ABOUT 47 YEARS
R/A KARIOANAHALLI,
YESHWANTHPUR HOBLI,
NAGASANDARA POST,
BANGALORE-560073
1B. SRI.GANGADHARA.M
AGED ABOUT 31 YEARS,
S/O LATE MALLESHAIAH
1C. SMT.RENUKA.M
AGED ABOUT 37 YEARS
D/O LATE MALLESHAIAH
1D. SMT.JAYAMALA.M
AGED ABOUT 35 YEARS
D/O LATE MALLESHAIAH
2
ALL ARE R/AT KARIOBANAHALLI,
YESHWANTHPUR HOBLI,
NAGASANDRA POST,
BANGALORE-560073
2. SRI. RENUKARADHYA
AGED ABOUT 49 YRS
3. CHANDRASHEKARA
AGED ABOUT 48 YRS
ALL SONS OF LATE GANGANNA
ALL ARE R/O KARIOBANAHALLI,
YESHWANTHPUR HOBLI,
BANGALORE NORTH TALUK,
BANGALORE - 22
...APPELLANTS
(BY SRI.S.SUSHEELA, SR.COUNSEL A/W
SRI.Y.DHANALAKSHIMI, ADVOCATE FOR A1(B);
SRI.G.R.ANANTHARAM, ADVOCATE FOR A1(A), A2 AND
A3; SRI.T.R.RAMESH, ADVOCATE FOR A1(C & D))
AND:
1. SMT CHANNAMMA
AGED ABOUT 78 YRS
W/O LATE PERANNA
SINCE DEAD BY LRs
1A. SMT.NANJAMMA
AGED ABOUT 60 YEARS,
D/O LATE CHANNAMMA
W/O DODDAMALLAPPA,
R/A KARIONAHALLI, YESHWANTHAPUR HOBLI,
NAGASANDRA POST, BANGALORE-73
3
1B. SMT.MALLAMMA
AGED ABOUT 48 YEARS,
D/O LATE CHANNAMMA
W/O VEERAPPA,
R/A KEMPAPUR, CHIKKABANAVAR POST,
BANGALORE NORTH.
1C. SMT.RENUKAMBA
AGED ABOUT 48 YEARS,
D/O LATE CHANNAMMA
W/O CHIKKANNA
SIDDAPUR TALUK,
MANDYA DISTRICT.
1D. SMT. NEELAMMA
AGED ABOUT 43 YERS,
D/O LATE CHANNAMMA
W/O NAGARAJAPPA
R/O KEMPAPURA
CHIKKABANAVAR POST
BANGALORE NORTH.
2 . NANJAPPA
AGED ABOUT 63 YRS
3. K P REVANNA
AGED ABOUT 61 YRS
SINCE DEAD BY HIS LRs
3A. SMT. VIJAYAMMA
AGED ABOUT 64 YEARS
W/O LATE K.P.REVENNA
3B. RENUKA PRASAD,
AGED ABOUT 34 YEARS,
S/O LATE K.P.REVANNA
3C. SMT.MANJUNATHA
4
AGED ABOUT 30 YEARS,
S/O LATE K.P.REVANNA
ALL ARE R/AT KARIOBANAHALLI,
YESHWANTHPUR HOBLI,
NAGASANDRA POST,
BANGALORE - 560073.
4. K P RAJANNA
AGED ABOUT 46 YRS
5. K P SIDDARAJU
AGED ABOUT 36 YRS
6. K P MAHADEVA
AGED ABOUT 36 YRS
7. K P MALLESHA
AGED ABOUT 34 YRS
2 TO 7 ARE SONS OF LATE PERANNA
1 TO 7 ARE R/AT KARIOBANAHALLI,
YESHWANTHPUR HOBLI,
BANGALORE NORTH TALUK,
BANGALORE - 560022.
...RESPONDENTS
(BY SRI.C S PRASANNA KUMAR, ADVOCATE FOR R1(A-D)
AND R2, R3(A TO C) TO 7 & R5)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 01.06.06 PASSED IN R.A.NO
40/04 ON THE FILE OF THE II ADDL.CIVIL JUDGE (SR.DN.)
BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING
5
THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DTD 28.01.04 PASSED IN OS NO.796/96 ON THE
FILE OF THE ADDL.CIVIL JUDGE (JR.DN.) BANGALORE
RURAL DISTRICT, BANGALORE.
IN RSA NO.1041/2007
BETWEEN:
PEERANNA
SINCE DEAD BY HIS LRS
1. CHANNAMMA @ MOTAMMA
W/O PEERANNA
AGED ABOUT 70 YEARS
(COURT ORDER DATED: 12/04/2011
APPELLANT NO.1 LRs ALREADY ON RECORD
A2 TO A11)
2. NANJAMMA
W/O DADDAMALLAPPA
AGED ABOUT 45 YEARS
1 & 2 ARE R/AT KARIOBANAHALLI VILLAGE,
NELAGADARANAHALLI POST,
BANGALORE-73
3. MALLAMMA
W/O VEERAPPA
AGED ABOUT 39 YEARS
R/A KEMPAPURA, SOLADEVANAHALLI POST,
BANGALORE NORTH TALUK-571424
4. RENUKAMMA W/O CHIKKANNA
MAJOR
R/A SIJJALUR VILLAGE AND POST,
6
MALAVATHI TALUK, MANDYA DISTRICT-571401
5. LEELAMMA W/O NANJAMARI
MAJOR
R/A KEMPAPURA, SOLADEVANAHALLI POST,
BANGALORE NORTH TALUK-571424
6. NANJAPPA S/O PEERANNA
AGED ABOUT 55 YEARS
7. REVANNA S/O PEERANNA
AGED ABOUT 53 YEARS
SINCE APPELLANT NO.7 DEAD HIS
LRs ARE BROUGHT ON RECORD AS PER ORDER
OF THIS COURT DTD: 04.3.2021.
7(A). VIJAYAMM,
WIDOW OF REVANNA,
AGED ABOUT 63 YEARS
7(B). RENUKA PRASAD,
S/O LATE REVANNA,
AGED ABOUT 33 YEARS
7(C). MANJUNATH,
S/O LATE REVANNA,
AGED ABOUT 29 YEARS
ALL ARE R/AT KARIOBANAHALLI VILLAGE,
YESHWANTHPUR HOBLI, NAGASANDRA POST,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT.
8. RAJANNA S/O PEERANNA
AGED ABOUT 38 YEARS
7
9. SIDDARAJU S/O PEERANNA
MAJOR
10 . MAHADEV S/O PEERANNA
AGED ABOUT 26 YEARS
11 . MALLESH S/O PEERANNA
AGED ABOUT 26 YEARS
APPELLANTS NO.2, 6 TO 11 ARE
R/AT KARIOBANAHALLI VILLAGE,
YESHWANTHAPUR HOBLI,
NELAGADARANAHALLI POST,
BANGALORE-73.
...APPELLANTS
(BY SRI.C S PRASANNA KUMAR, ADVOCATE FOR A2 TO
A6, A7(A TO C), 8 TO 11;
V/O DTD: 12.4.2011 A2 TO 11 ARE TREATED AS LRs OF
A1).
AND:
1. K M MAHESH S/O MALLESHAIAH
MAJOR
R/A KARIOBANAHALLI VILLAGE,
YESHWANTHPUR HOBLI, BANGALORE NORTH
TALUK, BANGALORE DISTRICT-73.
DECEASED ON 27.02.2019 LRs ARE
BROUGHT ON RECORD.
1(A). SMT. BHAGYAMMA
AGED ABOUT 50 YEARS,
MOTHER OF LATE K.M.MAHESH
8
1(B). SMT.PRIYANKA
AGED ABOUT 30 YEARS,
WIFE OF LATE K.M.MAHESH
1(C). SAINU,
AGED ABOUT 4 YEARS,
S/O LATE K.M. MAHESH
1(D). DEXITH
DAUGHTER OF LATE K.M.MAHESH
AGED ABOUT 2 YEARS
RESPONDENT NO.1(C) & (D) ARE
MINORS, REPRESENTED BY HER MOTHER
RESPONDENT NO.1(B).
ALL ARE RESIDING AT
KARIOBANAHALLI VILLAGE,
YESHWANTHPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT - 73.
2. K M GANGADARA S/O MALLESHAIAH
MAJOR
R/O KARIOBANAHALLI VILLAGE
YESHWANTHPUR HOBLI
BANGALORE NOTH TALUK,
BANGALORE DISTRICT-73
3. MALLESHAIAH S/O LATE GANGANNA
MAJOR
AS PER THE COURT ORDER 24.03.2016
SINCE DEAD BY HIS LRs
3(A). SMT. BHAGYAMMA
W/O LATE MALLESHAIAH
AGED ABOUT 52 YEARS
9
3(B). JAGADAMBA @ RENUKA.M
D/O LATE MALLESHAIAH,
AGED ABOUT 34 YEARS
3(C). JAYAMALINI
D/O LATE MALLESHAIAH,
AGED ABOUT 32 YEARS
3(D). MAHESH
S/O LATE MALLESHAIAH,
AGED ABOUT 31 YEARS
3(E). GANGADHARA
S/O LATE MALLESHAIAH,
AGED ABOUT 28 YEARS
ALL ARE RESIDENTS OF
KARIVOBANAHALLI VILLAGE,
NAGASANDRA POST, YESHWANTHAPURA HOBLI,
BANGALORE-560073.
4. RENUKAARADYA S/O LATE GANGANNA
MAJOR
5. CHANDRASEKARA S/O LATE GANGANNA
MAJOR
6. ARASAMMA W/O LATE GANGAMMA
AGED ABOUT 65 YEARS
(COURT ORDER DATED: 12/04/2011
RESPONDENT NO.6 THEIR LRs ARE
ALREADY ON RECORD AS R3 TO 5).
RESPONDENT NO.3 TO 6 ARE
R/AT KARIOBANAHALLI VILLAGE,
YESHWANTHPUR HOBLI,
NELAGADARANAHALLI POST,
10
BANGALORE-73
...RESPONDENTS
(BY SRI.S.SUSHEELA, SR.COUNSEL A/W
SRI.Y.DHANALAKSHMI, ADVOCATE FOR R2;
SRI.G.R.ANANTHARAM, ADVOCATE FOR R1(A), R3(A), R4
AND R5;
V/O DTD: 12.4.2011 R3-5 ARE TREATED AS LRs OF R6;
SRI.T.R.RAMESH, ADVOCATE FOR R3(B & C);
SRI.K.SHRIDHARA, ADVOCATE FOR R1(B), R1(C) & R1(D)
ARE MINOR REPRESENTED BY R1(B);
R3 (D & E) ARE ALREADY ON RECORD AS R1 & 2)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 22.2.2007 PASSED IN
R.A.NO.174/2000 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-II, BANGALORE RURAL
DIST, BANGALORE, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED 31.8.2000
PASSED IN OS.NO. 697/1996 ON THE FILE OF THE
PRL.CIVIL JUDGE (JR.DN.), BANGALORE RURAL DIST,
BANGALORE.
THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 23.02.2023, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
11
JUDGMENT
These two captioned second appeals are filed questioning the judgment and decree passed by the Appellate Court in R.A.No.40/2004 and R.A.174/2000. RSA.No.1856/2016 is filed by defendants in O.S.No.796/1996 questioning the judgment and decree passed in RA.40/2004. RSA.No.1041/2005 is filed by defendants in O.S.No.697/1996 questioning the judgment and decree passed in RA.No.174/2000.
2. For the sake of convenience the parties are referred to as per their rank before the trial Court in O.S.No.697/1996.
3. Family tree is as under:
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Late Nanajappa |
-------------------------------------------------------------------------------------------------------------------
| | |
Gangaiah-Arasamm (Wife) Revanna Peranna (Plaintiff No.1)(OS 796/96)
@ Ganganna (Deft.11 in OS 697/1996) | (Defendant No.4 in OS 697/96)
(Dead) Wife Channabasamm (dead) Smt.Channamma (wife) (dead)
| | |
------------------------------------------------------------------------- -----------
| | | | | | (Plt No.8) (Res 1)
Malleshaiah Renukaradhya Chandrashekar Tharadevi Rathnamma Nirmala Nanjappa in OS 796/96 in RSA
(D1 in OS (D2 in OS 796/96 (D3 in OS 796/96 (Not parties tosuits) Renuka 1856/06
796/96 & & OS 697/96) & OS 697/96) Mallakka -Nanjappa (Plf 2)
Wife Appellant 2 (D2) Appellant 3 (D3) Revamma (respondent No.2)
Bhagyamma Wife Nagarathna Wife Rathnamma Neelamma -K.P.Revanna(Plf 3)
App 1(a) | | (Respondent No.3)
D1(a) ---------------- MeghanaLokesh -K.P.Rajanna(Plf 4)
| | | (Respondent No.4)
| Raju Manjula -K.P.Siddaraju(Plf5)
| (Respondent No.5)
---------------------------------------------------- -KP.Mahadeva(Plf 6)
| (Respondent No.6)
Renukamba Jayamala K.M.Mahesh K.M.Gangadhara RSA 1856/2006
App 1(C) App 1(d) App 1(e) App 1(b) -K.P.Mallesha (Plf 7)
Plf 1 in OS Plf 2 in OS 697/96 (Respondent No.7)
| -Smt.Nanjamma
Widow-Priyanka (Res 1(a) in RSA.1856/06
| -Smt.Mallamma(Res 1(b)
--------------------- in RSA 1856/06
| | -Smt.Renukamba (Res 1(C)
Deekshitha Sanvi in RSA 1856/06
10 Years 6 years -Smt.Neelamma (Res 1(d)
in RSA 1856/06.
13
4. The dispute between the plaintiffs and defendants has got a checkered history and therefore, I deem it fit to cull out the chart submitted by the learned counsel for the defendants which would enable this Court to narrate the facts. The same is as under:
O.S.No.136/1996 O.S.No.268/1996 By R3 to R5 By Appellants Declaration 3 acres 9 Declaration and Injunction 6 acres 18 guntas 27/02/1996 guntas 16/04/1996 Withdrawn in pursuance of Settled in pursuance of compromise in O.S.No.268/1996 Compromise petition dated 12/08/1996 R3-R5: 5 acres 18 guntas Appellants:
1 acre O.S No.796/1996 By Appellants O.S.No.697/1993 By R1 & R2 Declaration and Injunction In (Minors) Partition and Declaration pursuance of Compromise 04/12/1996 that Compromise is null & void 24/10/1996 Dismissed Plaintiffs failed to Partly decreed Minors are entitled establish their title, the for Partition. Dismissed in respect compromise conferred no title of the nullification of the 28/01/2004 Compromise And also, the suit in respect of the item No.1(b) is dismissed 31/08/2000 R.A. No.40/2004 By Appellants R.A.No.174/2000 By R1 & R2 06/02/2004 (Minors) Challenging the dismissal 09/10/2000 Allowed Appellants are declared as Appeal Allowed absolute owners in possession of the Compromise does not bind the suit property 01/06/2006 appellants Suit decreed in its entirety 22/02/2007 R.S.A No.1856/2006 R.S.A No.1041/2007 By R3 to R5 By Appellants 29/06/2006 12/04/2007 14
5. One late Nanjappa had three sons by name Ganganna, Revanna and Peranna. The ancestral properties were divided among said three sons under partition deed dated 5.4.1944. Survey No.16 is the subject-matter of the present suit which measures 6 acres 18 guntas. In the said partition, the ancestor of plaintiffs namely Ganganna was allotted 6 acres 18 guntas and the second son Revanna was allotted 3 acres 9 guntas. Defendant No.4-Peranna was not allotted any portion in Survey No.16.
6. A dispute arose between Peranna and Ganganna in respect of the property bearing Survey No.16. Defendant No.4-Peranna filed a suit in O.S.136/1996 against defendants 1 to 3 who are the ancestors of the present plaintiffs herein seeking relief of declaration to declare him as absolute owner of the suit schedule property and for consequential relief of perpetual injunction. The subject matter of the suit in 15 O.S.No.136/96 is the land measuring Survey No.16 measuring 3 acres 9 guntas .
7. Defendants 1 to 3 also filed a suit for declaration and injunction in O.S.No.268/1996 seeking relief of declaration that they are absolute owners and in possession of 5 acres 18 guntas which is referred as schedule A and one acre in the very same Survey number which is referred as Schedule B property.
8. The plaintiffs' ancestors who are defendants 1 to 3 in O.S.No.136/1996 entered into compromise with defendant No.4-Peranna. Defendants 1 to 3 restricted their title only to an extent of 5 acres 18 guntas and gave up their claim in respect of one acre of land. Therefore the suit filed by defendants 1 to 3 in O.S.No.268/1996 was disposed of in terms of the compromise. Compromise decree was drawn declaring defendants 1 to 3 as absolute owners of 16 schedule A property in O.S.No.268/1996 i.e. 5 acres 18 guntas in Survey No.16. In the said compromise petition, the remaining one acre in Survey No.16 which is referred as Schedule B property was handed over to defendant No.4. In terms of compromise, defendants 1 to 3 were declared as absolute owners of 5 acres 18 guntas in Survey No.16. The suit filed by defendant No.4 in O.S.136/96 was dismissed as withdrawn in view of compromise arrived at in O.S.No.268/1996.
9. Though a compromise was arrived at the end and a compromise decree was passed in O.S.No.268/1996, the present plaintiffs who are the sons of Malleshaiah have filed the present suit in O.S.No.697/1996 seeking the relief of partition and separate possession and the declaration that compromise arrived at by his father Malleshaiah-
defendant No.1 and defendant No.4-Peranna in 17 respect of one acre of land in Survey No.16 is null and void and not binding on their legitimate share.
10. As a counter to the suit, defendant No.4- Peranna along with other defendants also filed a suit for declaration and injunction based on a compromise recorded in O.S.No.268/1996.
11. The trial Court dismissed the suit filed by defendant No.4 in O.S.No.796/1996 thereby holding that defendant No.4 and other defendants who are plaintiffs in O.S.No.796/1996 have failed to establish their title. The trial Court further held that the compromise does not confer any title. While the plaintiffs' suit in O.S.No.697/1996 seeking the relief of partition and declaration was partly allowed. The plaintiffs in O.S.No.697/1996 were allotted their legitimate share in the suit schedule properties while 18 the relief of declaration in regard to compromise in respect of item No.1(b) was dismissed.
12. Feeling aggrieved by the dismissal of the suit in O.S.No.796/1996, defendant No.4 and other defendants preferred an appeal in R.A.No.40/2004. Simultaneously, the plaintiff in O.S.No.697/1996 feeling aggrieved by the dismissal of the suit insofar as relief of declaration relating to compromise decree is concerned, preferred an appeal in R.A.No.174/2000. R.A.No.40/2004 filed by defendant No.4 was decided on 1.6.2006. The appellate Court allowed the appeal and the suit filed by defendant No.4 and other defendants in O.S.No.796/1996 was decreed thereby declaring defendant No.4 as absolute owner of the suit property measuring 1 acre in Survey No.16. Though this judgment was produced in R.A.No.174/2000, the appellate Court allowed the appeal filed in R.A.No.174/2000 and dismissal of the suit in 19 O.S.No.697/1996 insofar as item No.1(b) is concerned was set aside. The appellate Court in R.A.No.174/2000 held that the compromise arrived at between the plaintiffs' father i.e. defendant No.1 and his brothers and defendant No.4 would not bind on plaintiffs' legitimate share even in respect of Survey No.16 i.e. disputed portion measuring 1 acre in Survey No.16 which is referred as item No.1(b).
13. Feeling aggrieved by the judgment and decree passed in R.A.No.174/2000, the legal heirs of defendant No.4 and other defendants have preferred an appeal in RSA.No.1041/2007. The plaintiffs have challenged the judgment and decree passed in R.A.No.40/2004 in RSA.No.1856/2006.
14. This Court while admitting the appeal in RSA.No.1041/2007 on 6.6.2008 has formulated the 20 following substantial questions of law for consideration:
"a. Whether the Courts below have committed an error in holding that the compromise entered into between the partner is not valid; and b. Whether the said finding could have been given on the face of the Order XXVIII Rule 3-A of C.P.C.?"
This Court also held that the connected RSA.No.1856/2006 has to be decided in the light of the substantial questions of law framed in RSA.No.1041/2007.
15. The learned Senior Counsel Smt. Susheela appearing for the legal representatives of plaintiff No.2 referring to Ex.P5 which is a compromise recorded in O.S.No.268/1996 would vehemently argue and contend that the plaintiffs who represented Ganganna's branch are held to be the owners of the suit property. Referring to Para (2) of the 21 compromise petition, she would point out that the original defendant No.4-Peranna has admitted the title of plaintiffs over the entire extent i.e. 6 acres 18 guntas. Referring to Para (3) of the compromise petition, she would further point out that the wordings used therein clearly indicates that the suit measuring one acre is agreed to be given to defendant No.4 and therefore, the right being conferred for the first time will not culminate into absolute right for want of registration of compromise decree. She would further contend that the panchayath award vide Ex.P1 will also not confer any right and title in favour of defendant No.4. She would come back to compromise decree vide Ex.P5 and contend that on reading the operative portion, the suit filed by defendants 1 to 3 in earlier round of litigation in O.S.No.268/1996 will also not create any right in favour of defendant No.4. By way of compromise, the suit filed by defendants 1 to 3 22 is decreed in respect of 5 acres 18 guntas excluding one acre. Therefore, she would point out that there is no decree in favour of defendant No.4. Referring to Ex.D7, she would further contend that defendant No.4, based on the compromise decree, made an attempt by seeking rectification by filing an application under Section 152 of CPC. The said application is rejected.
16. Referring to Section 17(2) of the Registration Act, she would vehemently argue and contend that the suit filed by defendant No.4 asserting title based on a compromise decree has to fail as the compromise decree is not registered and therefore, there is no transfer of title inspite of compromise being recorded in O.S.No.268/1996.
17. The learned Senior Counsel would further take this Court through the findings recorded by the 23 appellate Court in R.A.No.40/2004. Referring to the findings recorded by the appellate Court, she would point out that the findings recorded by the appellate Court that defendant No.4 has acquired title pursuant to compromise decree passed in O.S.No.268/1996 is patently erroneous. To buttress her arguments, she has placed reliance on the judgment rendered by the Apex Court in Bhoop Singh .vs. Ram Singh1 and Ripudaman Singh .vs. Tikka Maheshwar Chand2.
18. The learned counsel appearing for the legal heirs of plaintiff No.1-K.M. Malleshaiah arguing in the same vein accepting the arguments canvassed by the learned Senior Counsel would add up two grounds. Referring to the compromise petition vide Ex.P5, he would vehemently argue and contend that possession was agreed to be delivered. Therefore, he would point out that the family never lost possession. He would 1 (1995) 5 SCC 709 2 (2021) 7 SCC 446 24 further contend that if the suit of defendant No.4 in O.S.No.136/1996 is dismissed as withdrawn, no right is accrued in favour of defendant No.4 and therefore, plaintiffs are entitled to seek their legitimate share even in respect of one acre which was agreed to be given by defendants 1 to 3 who are the ancestors of plaintiffs. Reliance is placed on the judgment rendered by the Orissa High Court in the case of Chandrashekhar Patel .vs. Ukiabati Patel and others3.
19. Learned counsel appearing for legal representatives of Defendant No.4 and other defendants however would counter the arguments canvassed by the learned counsel appearing for plaintiffs. His first submission is that in the registered partition deed vide Ex.D1 there is no reference that suit properties are co-parcenary properties and all the 3 AIR 1977 ORISSA 82 25 three sons of Ganganna have partitioned under the registered partition deed and have received the properties in their individual capacity and not as co- parceners. Therefore, he would contend that the present plaintiffs in O.S.No.697/1996 have no independent right and therefore, they have no locus to question the compromise recorded in O.S.No.268/1996 by their father Malleshaiah, who was arrayed as defendant No.1 in O.S.No.697/1996. He would also point out that the present plaintiffs were not even born in 1944 when partition was effected in the family and therefore, he would contend that the suit filed by plaintiffs in O.S.No.697/1996 is not maintainable. Referring to Panchayath award vide Ex.P1, he would point out that parties have voluntarily agreed to modify the 1944 partition insofar as Survey No.16 is concerned. This modification is confined only in respect of 6 acres 8 guntas allotted to the branch of 26 Ganganna, who is the propositus of present plaintiffs herein. Therefore, he would contend that the panchyath award was further the subject matter of O.S.268/1996 and plaintiffs' father and their uncles i.e. defendants 2 and 3 have restricted their title to an extent of 5 acre 18 guntas and in terms of amicable settlement, they have given up their rights in favour of defendant No.4 by admitting title of defendant No.4. He would further contend that para 6 of the compromise petition vide Ex.D4 amounts to modification of 1944 partition insofar as survey No.16 measuring 6 acres 18 guntas is concerned. Referring to the recitals in the panchayath award vide Ex.P1, he would contend that the word 'marpadu' further strengthens the claim of defendant No.4 and therefore, the subsequent suit filed by the present plaintiffs in O.S.No.697/1996 is not at all maintainable.
27
20. The counsel while countering the arguments advanced by the learned Senior Counsel on panchayath award, would contend that under Ex.P1 plaintiffs and defendants have themselves settled the matter in the presence of panchas and therefore, the question of passing an award would not arise for consideration. He has also placed reliance on the commentary on Joint Property and partition by Mithra. Referring to the relevant commentary, he would vehemently argue and contend that compromise or family arrangement is based on the assumption that there is an antecedent title and therefore, amicable settlement therein acknowledges and defines the title in that regard and also indicates the relinquishment of claims by the parties therein and therefore, the fact that suit filed by defendants 1 to 3 in O.S.No.268/1996 was partly decreed declaring defendants 1 to 3 as absolute owners to an extent of 28 5 acres 18 guntas excluding one acre has finally crystallized the rights of respective parties. Therefore, the subsequent suit filed by the children of defendant No.1 in O.S.No.697/1996 is not at all maintainable. He would also contend that the present suit in O.S.No.697/1996 is hit by the provisions of Order XXIII Rule 1A. Referring to the said provisions, he would contend that neither defendants 1 to 3 nor the children can maintain a separate suit to overcome the compromise recorded in O.S.No.268/1996. He would further contend that the family arrangement is already acted upon and therefore, the judgment rendered by the appellate Court in RA.No.40/2004 declaring defendant No.4 and other defendants as absolute owners would not warrant any interference in RSA.1856/2006 and consequently, he would submit that RSA.1041/2007 has to be allowed by answering substantial question of law in favour of legal 29 representatives of defendant No.4 and consequently, the suit filed by plaintiffs insofar as one acre of land in Survey No.16 is concerned is liable to be dismissed.
21. Referring to Ex.D1(registered partition deed), he would contend that entire extent measuring 6 acres 18 guntas was allotted to the branch of Ganganna and therefore, pre-existing right of defendant No.4, if any, stood terminated pursuant to partition in the family in 1944. He would contend that the principles of estoppel is not applicable as compromise is not registered. He has placed reliance on Section 49A of Registration Act. He has also placed reliance on following judgments:
"1. Bhoop Singh Vs Ram Singh - (1995) 5 SCC 709.
2. Ripudaman Singh Vs. Tikka Maheshwar Chand - (2021) 7 SCC 446.30
3. K.B.Saha and sons Private Limited Vs. Development Consultant Limited - (2008) 8 SCC 564.
4. Tinsukia Municipal Board and Another Vs. Harikrissen Lohia and others - 1956 SCC Online Gau 15: AIR 1957 Assam 10 (DB).
5. Shyam Narayan Prasad Vs. Krishna Prasad and others - (2018) 7 SCC 646."
22. To record finding on substantial questions of law, more particularly, the second substantial question of law which pertains to maintainability of suit filed in O.S.No.697/1996. O.S.No.268/1996 was instituted by plaintiffs' father Malleshaiah and his two brothers namely Renukaradhya and Chandrashekar who are arrayed as defendants 1 to 3 in the present suit bearing O.S.No.697/1996. Plaintiffs' father Malleshaiah and his two brothers who are defendants 1 to 3 in the present suit, filed suit seeking the relief of declaration and injunction. The title was sought in two parts. Schedule A pertains to 5 acres 18 guntas 31 in Survey No.16. Schedule B pertains to one acre which is the subject matter of the present suit.
23. Defendant No.4 by way of counter also filed a suit in O.S.No.796/1996 and claimed title to an extent of 3 acres 9 guntas in Survey No.16. It is also relevant to note here that there is no dispute that the ancestor of plaintiffs' and defendants 1 to 3 namely Ganganna was allotted 6 acres 18 guntas in Survey No.16 under registered partition deed of 1944 vide Ex.D1. Therefore, the present controversy between the parties is in respect of one acre of land. The branch of defendant No.4 though admits 1944 partition, it appears defendant No.4 was however asserting possessory rights over a portion of the property which was allotted to plaintiffs' ancestor. 32
24. Now let me cull out the relevant portion of compromise petition filed in O.S.No.268/1996, which reads as under:
"3. The Plaintiffs by the intervention of the panchayatdars, relatives, well wishers and also out of humanitarian consideration agreed to give, 1 acre of land in the suit schedule property to the defendant 1 to 7, for the use, possession and enjoyment, in whatsoever manner, they like the said 1 acre of land in the suit schedule property is described as Schedule 'B of this compromise petition.
4. The property retained by the Plaintiffs in the suit schedule property, measuring 5 acres 18 guntas is described as schedule 'A' to this compromise petition.
5. The Plaintiffs and the defendants have only blood relationship with each other, either parties or their legal heirs have no manner of right, title or interest in respect of property changed and possessed by either properties to the suit."
25. It would be also useful to cull out the compromise decree recorded in O.S.No.268/1996, which reads as under:
33
"The plaintiffs filed this suit for declaration of title and also for permanent injunction in respect of 6 acres 18 guntas land in Sy.No.16 of karihobanahalli village. The defendants have appeared through their counsel and both plaintiffs and defendants, have filed compromise petition u/o 23 Rule 3 of CPC,. The contents of the compromise petition were read over and explained to both the parties in kannada language known to them and they admitted the contents of the same and also the execution of the same. In the compromise petition it is stated that except 1 acre of land which forms Eastern end portion of the suit schedule property the remaining 5 acre 16 guntas of land out of the suit schedule property belongs to the plaintiffs and the plaintiffs are in possession and enjoyment of the same,. It is also stated in the compromise petition that out of humanitarian grounds, 1 acre of land in the suit schedule property situated on the Eastern end side is given to the defendants and the defendants can enjoy the same. In the compromise petition, the property of the plaintiffs measuring 5 acres 18 guntas out of the suit property has been described as 'A' schedule property and 1 acre of land given to the defendants out of the suit property has been described as 'A' schedule property. In the compromise petition it is stated that the suit be decreed in terms of the compromise petition, but in this suit, the defendants have not paid the court fee for declaration or for injunction in respect of 1 acre of land which forms the Eastern and portion of the suit schedule property. Hence, the suit of the plaintiffs has to be decreed only in respect of 5 acres 16 guntas of land which according to compromise petition belongs to 34 the plaintiffs and which is in their possession and the suit in respect of remaining 1 acre of land which has been given to the defendants in the compromise petition has to be dismissed. Hence, I pass the following order:
ORDER In view of the compromise petition filed by the parties, this suit is decreed as prayed for in respect of the suit schedule property except 1 acre of land which forms the Eastern end portion of the suit schedule property. The suit in respect of the above said 1 acre of land which forms the Eastern end portion of the suit schedule property is dismissed. No costs."
26. On reading the terms of the joint compromise petition filed by plaintiffs' father and his uncles, it is clearly evident that plaintiffs' father Malleshaiah and his two uncles who were arrayed as defendants 2 and 3 in the present suit have restricted their right and title only to an extent of 5 acres 18 guntas which is referred as schedule A. Though the terms of the joint compromise petition are not happily worded, on conjoint reading of Paras 3 to 5 of the joint compromise petition clearly gives an impression 35 that under the compromise, one acre was delivered to defendant No.4, which is also the subject matter of present suit which is referred as schedule 1(B) measuring 1 acre in Survey No.16.
27. Paragraph 3 refer to wordings "use, possession and enjoyment in whatsoever manner". Further at paragraph 5, there is a further averment that respective parties have no manner of right, title and interest in respect of the property "changed or possessed" by either parties to the suit. The wordings used in para 4 of the joint compromise petition would further establish that property retained by plaintiffs and defendants 1 to 3 post compromise recorded in OS.268/1996.
28. In terms of joint compromise petition, the suit filed by defendants 1 to 3 in O.S.No.268/1996 is disposed of declaring the present defendants 1 to 3 as 36 absolute owners of schedule A property, which measures 5 acres 18 guntas. The suit in respect of remaining one acre [referred as schedule 1(b) in the present suit bearing No.697/1996] which is the subject matter of the present second appeal is dismissed.
29. The present second round of litigation is initiated by the children of first plaintiff in O.S.No.268/1996 namely, Malleshaiah, who is defendant No.1 in the present suit. The children of first defendant have filed a suit for partition and separate possession and have also sought declaration that compromise recorded between defendants 1 to 3 and defendants 4 to 10 in O.S.268/1996 is null and void and not binding on plaintiffs. The plaintiffs have also sought injunction against defendants 4 to 10. 37
30. The connected suit in O.S.No.796/1996 is filed by defendant No.4 to 10 only against defendants 1 to 3, who are plaintiffs in O.S.No.268/1996, seeking declaration based on a compromise decree and for injunction. Defendants 1 to 3 though admit the filing of suit in O.S.No.268/1996, however, have strangely disputed the compromise decree. The right of defendants 4 to 10 over one acre of land in terms of the compromise recorded in O.S.No.268/1996 is also disputed by defendants 1 to 3.
31. The validity of compromise recorded in O.S.No.268/1996 and the judgment rendered by the appellate Court in RA.No.40/2004 would have a direct bearing on the claim made by plaintiffs in O.S.No.697/1996 insofar as one acre of land which is referred as Schedule 1(b) property. Both the parties have advanced arguments extensively to substantiate their claim. It is not in dispute that Survey No.16 38 measuring 6 acres 18 guntas was allotted to the share of Ganganna who is the ancestor of plaintiffs and defendants 1 to 3. This entire 6 acres 18 guntas was the subject matter of O.S.No.268/1996. The disputed portion measuring 1 acres was referred as schedule B in O.S.No.268/1996 and the same is referred as schedule 1(b) in O.S.No.697/1996. The learned Senior Counsel and the advocate appearing for plaintiffs Sri. G.R. Anantharam have placed reliance on Section 17(2), 23 and 49(A) of the Registration Act, while disputing the compromise decree and panchayath award. This Court has to take congnizance of the terms of joint compromise petition submitted in O.S.No.268/1996.
32. Defendants 1 to 3 having entered into compromise, which is culled out supra, cannot question the compromise. The decree passed in O.S.No.268/1996 clearly reveals that defendants 1 to 39 3 were declared to be owners only to an extent of 5 acres 18 guntas and their suit was dismissed in respect of one acre which is the subject-matter of the second appeal. I am not inclined to accede to the arguments advanced by the plaintiffs that the compromise does not create right in favour of defendants 4 to 10. The fact that defendants 1 to 3 were declared to be owners only to an extent of 5 acres 18 guntas as the parties have signed the compromise memorandum voluntarily, the compromise decree relates to both the properties mentioned in the original suit i.e. O.S.No.268/1996. Therefore, the plaintiffs claim that defendant No.4 has not acquired any right and title over schedule 1(b) property measuring one acre is found to be totally misconceived.
40
33. The panchayath award at Ex.P1 coupled with joint compromise petition filed by defendants 1 to 3 and defendant No.4 in O.S.No268/1996 needs to be looked into by this Court to ascertain whether the compromise decree recorded in O.S.No.268/1996 binds the present defendants 1 to 3 and therefore, the connected suit filed by the children of first defendants in O.S.No.697/1996 for partition and separate possession is not maintainable insofar as suit schedule 1(b) property measuring one acre in Survey No.16 is concerned. On reading the terms of panchayath award vide Ex.P1, which is further taken forward and a joint compromise petition is filed vide Ex.D5 in O.S.No.268/1996, it is clearly evident that present defendants 1 to 3 have arrived at a amicable settlement and have given up their right and title over one acre in Survey No.16. Therefore, a plea of estoppel can be invoked and therefore, the defence 41 set up by defendants 1 to 3 in O.S.No.796/1996 resisting the claim of defendants 4 to 10 in terms of compromise recorded in O.S.No.268/1996 cannot be entertained. Section 6(a) of the Transfer of Property Act is a rule of substantive law, while Section 115 of Evidence Act enacts a rule of estoppel, which is one of evidence. These two provisions operate in different fields and under different circumstances. Therefore, defendants in the light of the compromise recorded in O.S.No.268/1996 are clearly shut out from asserting anything contrary to compromise recorded in OS.268/1996. Even if the doctrine of estoppel cannot be applied to the present case on hand, nevertheless, it is a Rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a settlement voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that 42 and avoiding it at the later stage. Therefore, defendants 1 to 3 having restricted their title to an extent of 5 acres 18 guntas in Survey No.16 and further having restricted their possessory rights to the above said extent have consciously and voluntarily made their election and therefore, they are bound by the compromise recorded in O.S.No.268/1996.
34. The material on record, clearly demonstrates that defendants 1 to 3 unequivocally assented for a settlement with full knowledge of the facts and this settlement in all probability was arrived at between defendants 1 to 3 and defendant No.4 to bring about family peace and to avoid future disputes. I have given my anxious consideration to the terms of the compromise decree. The settlement entered in the earlier suit to my mind appears to be a bonafide settlement. The material on record also gives an indication in regard to the existence of doubtful claims 43 concerning one acre of land in Survey No.16 and a semblance of possessory rights asserted by defendant No.4 even though 6 acres 18 guntas in Survey No.16 was allotted to Gangaiah. The motive of settlement in O.S.No.268/1996 leads to an inference that the parties intended to settle the existing disputes. Therefore, plaintiffs' ancestors i.e. defendants 1 to 3 and defendant No.4 resolved to put an end to the dispute and accordingly, joint compromise petition was filed and a compromise decree was drawn in O.S.No.268/1996.
35. The contention of the learned counsel appearing for plaintiffs that there was severance in the family pursuant to the registered partition deed executed in 1944 and therefore, defendant No.4 who was not allotted any portion in Survey No.16 has no antecedent title and therefore, the compromise recorded in O.S.No.268/1996 does not confer any 44 right and title for want of registration cannot be acceded to having regard to the facts and circumstances of the case. While arriving at a settlement, the general principle governing the validity of settlement among family members should indicate that the parties entering into settlement have some antecedent title, claim or interest. Even a possible claim in the property, if acknowledged by other party would be sufficient. In such event, the compromise decree vide Ex.D6 cannot be termed as a vehicle for transfer of rights. It is not in dispute that admittedly suit schedule 1(b) property is also an ancestral property.
36. There is no bar for family members to seek settlement and readjust their shares inspite there being severance in the family by way of a registered partition deed. There is also no bar to reopen a partition in respect of any one property. Therefore, 45 the compromise recorded in O.S.No.268/1996 binds defendants 1 to 3. The recitals in the joint compromise petition clearly establishes that defendants 1 to 3 acknowledged the possession of defendant No.4 insofar as suit schedule 1(b) property is concerned. If defendants 1 to 3 and plaintiffs are not in possession of suit schedule 1(b) property, the present suit for partition and separate possession filed by plaintiffs insofar as suit schedule 1(b) property is concerned is not maintainable.
37. Though the compromise recorded in O.S.No.268/1996 may not bind the plaintiffs, there are sufficient properties held by the plaintiffs' and family of defendants 1 to 3. In fact, under the compromise the plaintiffs and defendants 1 to 3 have retained 5 acre 18 guntas. Therefore, plaintiffs have to work out their rights and seek share in the property retained by defendants 1 to 3.
46
38. It is a trite law that Court leans strongly in favour of family arrangements that bring about harmony in a family and compromise is intended to do complete justice to its family members. If such an agreement is entered into bonafide and the terms thereto are fair in the circumstances, the Court could more readily give an assent to such an agreement then to avoid it. Though the compromise recorded in O.S.No.268/1996 was intended to give a quietus over the disputed portion of one acre in Survey No.16. It can be easily inferred that it is defendants 1 to 3 who have initiated the second round of litigation through their children. Admittedly, plaintiffs claim to be minors and the suit is filed represented by the mother of the plaintiffs. Therefore, defendants 1 to 3 are clearly estopped in laying a claim over one acre of land when they had under unequivocal terms given up their rights while recording a compromise in 47 O.S.268/1996. One must examine the true intent and purpose of settlement. The joint compromise petition tendered in O.S.No.268/1996 by defendants 1 to 3 clearly signifies that the amicable settlement was arrived at with consensus and the same is found to be voluntary.
39. The material on record clearly reveals that defendant No.1 has tried to re-litigate by filing a suit through his sons. The compromise recorded in O.S.No.268/1996 though may not operate as res judicata against the plaintiffs but it will create an estoppel between the parties. The judgment by consent between defendants 1 to 3 and defendant No.4 is as effective as estoppel. If defendant No.4 succeeds in O.S.No.796/1996 based on a compromise recorded in O.S.No.268/1996, no relief can be granted in the connected suit bearing No.697/1996 insofar as suit item No. 1(b) measuring one acre in Survey 48 No.16 is concerned. If plaintiffs and defendants 1 to 3 are not in possession of one acre of land, the relief of partition in respect of one acre of land even otherwise is not maintainable.
40. The appellate Court in R.A.No.174/2000 by allowing the appeal filed by the plaintiffs and granting share even in respect of item No.1 (b) has rendered a conflicting judgment. It is borne out from records that the judgment rendered in R.A.No.40/2004 was allowed and the suit filed by defendant No.4 in O.S.No.796/1996 was decreed thereby declaring defendant No.4 as absolute owner and in possession of suit item No.1(b). This was brought to the notice of the appellate Court in R.A.No.174/2000. Therefore, appellate Court erred in rendering a conflicting judgment. If title and possession of defendant No.4 was upheld in R.A.No.40/2004, the appellate Court 49 ought to have proceeded to dismiss the appeal insofar as suit schedule 1(b) property.
41. In the light of discussions made supra, the first substantial question of law framed in RSA.No.1041/2007 has to be answered in the affirmative and against the plaintiffs. Defendants 1 to 3 have failed to substantiate as to how compromise decree is not binding on them. The contention of plaintiffs and defendants 1 to 3 that the compromise stands vitiated on account of non-registration also cannot be acceded as it is borne out from the records that defendant No.4 had an antecedent title. The compromise decree recorded in O.S.No.268/1996 has to be read as a whole in order to gather intention of parties. Having interpreted the terms of joint compromise petition submitted in O.S.No.268/1996, I am of the clear opinion that the 1944 partition stands partially modified which can be gathered from paras 3 50 and 4 of the compromise petition and therefore, the compromise decree has to be deemed as a lawful adjustment and therefore, it would not vitiate on the ground that the compromise decree is not registered. There is no absolute bar for reopening of the partition.
42. I have come to the conclusion that O.S.No.697/1996 is instituted by defendant No.1 through his children. First defendant has initiated the second round of litigation through his children only to over come the compromise recorded in O.S.No.268/1996. Therefore, the present suit insofar as suit item 1(b) is concerned is clearly not maintainable in view of Order 23 Rule 3(A) of CPC. Under the garb of seeking partition against defendant No.1 and other defendants, plaintiffs are indirectly questioning the compromise decree recorded in O.S.No.268/1996. Therefore, the second substantial question of law is answered in the negative and 51 against the plaintiffs. The findings recorded by the Appellate Court in R.A.No.174/2000 in declaring that the compromise recorded between defendants 1 to 3 and defendant No.4 in respect of suit 1(b) property is not binding on plaintiffs' legitimate share is perverse, patently erroneous. The present suit for partition is squarely hit by the provisions of Order 23 Rule 3(A) of CPC. Therefore, the appellate Court erred in decreeing the suit of the plaintiffs in entirety. Appellate Court erred in reversing the finding of the trial Court in O.S.No.697/1996 insofar as suit 1(b) property is concerned.
43. In view of the above discussions, this Court would arrive at the following conclusions:
(i) If defendants 1 to 3, have made a concession in the previous suit bearing OS.No.268/96, they cannot be permitted to resile the terms of 52 settlement arrived at in previous suit bearing OS. No.268 of 1996.
(ii) On examining the records, I am more than satisfied that defendant No.1 has made an attempt to overcome the compromise decree recorded in OS No.268 of 1996.
(iii) Even if plaintiffs are not bound by the compromise decree recorded in OS.No.268/1996, plaintiffs are not entitled to seek relief of declaration to the effect that the compromise decree is null and void and not binding on their share.
(iv) The bar to file fresh suit in respect of same subject matter, where a former suit is compromised, is not only based on principle of res judicata, but due to express provision contained in sub-rule (4) of order XXI of CPC. The material on record clearly demonstrates that defendant No.1 having voluntarily 53 entered into compromise in OS.No.268/1996 has filed the present suit through minor sons.
(v) This Court has also taken cognizance of the fact that defendant no.1 has not contested partition suit filed by his children in OS.No.697/1996, but defendant No.1 has contested the suit filed by defendants 4 to 10 in OS.No.796/1996. While assessing the conduct of defendant No.1, an inference can be drawn that present suit filed by minor sons of defendant No.1 is a collusive suit and the same is intended only to overcome the compromise recorded in OS No.268 of 1996.
(vi) If plaintiffs are denied relief of partition in respect of schedule 1(b), no prejudice is caused to the plaintiffs as the family owns sufficient properties and they can work out their rights in the remaining 5.18 guntas in Survey No.16 and also six items of agricultural lands which are not the subject-matter of 54 these appeals and therefore appellate Court erred in granting relief of declaration insofar as suit schedule 1(b) is concerned and also erred in granting share in schedule 1(b) property measuring 1 acre which was voluntarily abandoned by defendant No.1 and his brothers i.e. defendants 2 and 3. Therefore the suit schedule 1(b) property which is not in possession of plaintiffs and defendants 1 to 3 family cannot be the subject-matter of the present partition suit in O.S.No. 697 of 1996 .
(vii) The partition suit filed by plaintiffs is also not maintainable in so far as schedule 1(b) property is concerned. The compromise decree passed in OS.No. 268/1996 clearly reveals that plaintiffs and defendants 1 to 3 are not in possession of suit schedule 1(b) property. Therefore, plaintiffs are not entitled for relief of declaration and consequently are also not entitled for share as family has already lost suit schedule 1(b) 55 property and therefore appellate court erred in granting a share in schedule 1(b) property also.
(viii) While arriving at a settlement, the general principle governing the validity of settlement among family members should indicate that the parties entering into settlement have some antecedent title, claim or interest. Even a possible claim in the property, if acknowledged by other party would be sufficient. In such an event, the compromise decree vide Ex.D6 cannot be termed as a vehicle for transfer of rights. It is not in dispute that admittedly suit schedule 1(b) property is also an ancestral property. Therefore, I am not inclined to accept the contention of the plaintiffs that compromise decree vide Ex.D6 requires registration.
(ix) There is no bar for family members to seek settlement and readjust their shares inspite of there being severance in the family by way of a registered 56 partition deed. There is also no bar to reopen a partition in respect of any one property. Therefore, the compromise recorded in O.S.No.268/1996 binds defendants 1 to 3. The recitals in the joint compromise petition clearly establishes that defendants 1 to 3 acknowledged the possession of defendant No.4 insofar as suit schedule 1(b) property is concerned. If defendants 1 to 3 and plaintiffs are not in possession of suit schedule 1(b) property, the present suit for partition and separate possession filed by plaintiffs insofar as suit schedule 1(b) property is concerned is not maintainable.
(x). What can be gathered from the panch award and compromise arrived at in a pending suit bearing O.S.No.268/1996 is that defendants 1 to 3 along with defendants 4 to 10 with a view to give a quietus to the dispute in regard to one acre in Survey No.16 though it was allotted to the ancestors of 57 defendant No.1 and plaintiffs 1 to 3 have entered into a compromise and defendants 1 to 3 in unequivocal terms have made a statement while entering into the compromise that one acre is agreed to be given to defendants 4 to 11. There is absolutely no material on record to substantiate that the said settlement arrived at in O.S.No.268/1996 is tainted with malafides. On the contrary, I am more than satisfied that the settlement recorded in O.S.No.268/1996 is found to be bonafide and the same was entered into to resolve disputes and rival claims between the family members and since the rights of defendants 4 to 10 can be traced having regard to the nature of the property which is admittedly an ancestral property, the compromise recorded in O.S.No.268/1996 binds defendants 1 to 4 and therefore, the partition suit filed by plaintiffs in O.S.No.697/1996 is liable to be dismissed insofar as schedule 1(b) is concerned. 58
44. For the foregoing reasons, I pass the following:
ORDER
(i) RSA.No.1856/2006 is dismissed.
Consequently, RSA.No.1041/2007 is allowed.
(ii) The judgment and decree dated 22/02/2007 passed in R.A.No.174/2000 insofar as suit item No.1(b) measuring one acre in Survey No.16 is set aside. Consequently, the suit for partition filed by plaintiffs in O.S.No.697/1993 stands dismissed insofar as item No.1(b) measuring one acre in Survey No.16.
(iii) Office to draw the decree accordingly.
Sd/-
JUDGE *alb/-