Karnataka High Court
Chanamallayya S/O Basayya Nirwani vs Rajshekhar Mallappa Nidagundi on 18 April, 2023
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RSA No. 100026 of 2021
C/W RSA No. 100048 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 100026 OF 2021 (PAR-)
C/W
REGULAR SECOND APPEAL NO. 100048 OF 2021
IN RSA 100026/2021
BETWEEN:
1. CHANAMALLAYYA S/O BASAYYA NIRWANI
AGE: 68 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
2. PRAKASH CHANAMALLAYYA NIRWANI
AGE: 40 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
BHARATHI 3. CHANDRAYYA BASAYYA NIRWANI
HM AGE: 53 YEARS, OCC:AGRICULTURE
Digitally signed by
R/O: MUDALAGI, TQ :MUDALAGI
BHARATHI H M
Location: HIGH
DISTRICT: BELAGAVI
COURT OF
KARNATAKA
DHARWAD
...APPELLANTS
(BY SRI. SRINIVAS B NAIK.,ADVOCATE)
AND:
1. RAJSHEKHAR MALLAPPA NIDAGUNDI
AGE: 35 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
2. DANESHWARI W/O MALLAPPA KOPPAD
AGE: 30 YEARS, OCC: AGRICULTURE AND HOUSEWIFE
R/O:BAGOJIKOPPA, TQ:RAMDURG,
DISTRICT:BELAGAVI.
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RSA No. 100026 of 2021
C/W RSA No. 100048 of 2021
3. MALLAPPA BASAVANTAPPA NIDAGUNDI
AGE: 64 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
4. SMT. NEELAVVA W/O MALLAPPA NIDAGUNDI
AGE: 57 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
5. IRAPPA MALLAPPA NIDAGUNDI
AGE 37 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
6. DUNDAPPA LAXMAN FIROJI
AGE: 47 YEARS, OCC:AGRICULTURE & BUSINESS,
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
7. LAXMAN BASAPPA GODIGOUDAR
AGE: 44 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
8. NAGAPPA BASAPPA GODIGOUDAR
AGE: 40 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI.
9. BALAPPA BASAPPA GODIGOUDAR
AGE: 39 YEARS, OCC:AGRICULTURE
R/O: MUDALAGI, TQ :MUDALAGI
DISTRICT: BELAGAVI
...RESPONDENTS
(BY SRI. S A NEELOPANT ADV. FOR R1 & R2(NOC);
SRI. PRASHANT MATHAPATI ADV. FOR R3 TO R5;
R6- SRI. RAVI S BALIKAI;
SRI. CHETAN T LIMBIKAI ADV. FOR R7 TO R9;)
THIS RSA FILED U/SEC.100 OF CPC, 1908, AGAINST THE
JUDGEMENT AND DECREE DATED 29.06.2020 PASSED IN
R.A.NO.388/2019 ON THE FILE OF THE XII ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BELAGAVI, SITTING AT GOKAK, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD
03.08.2019 PASSED IN O.S. NO.90/2008 ON THE FILE OF THE II
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RSA No. 100026 of 2021
C/W RSA No. 100048 of 2021
ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, GOKAK, PARTLY DECREEING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION AND DECLARATION.
IN RSA 100048/2021
BETWEEN:
DUNDAPPA S/O LAXMAN FIROJI
AGE: 58 YEARS,OCC: AGRIL AND BUSINESS,
R/O. MUDALAGI-591301, TQ. MUDALAGI
DIST. BELAGAVI.
...APPELLANT
(BY SRI. RAVI S BALIKAI.,ADVOCATE)
AND:
1. RAJSHEKHAR S/O MALLAPPA NIDAGUNDI
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301
TQ: MUDALAGI, DIST: BELAGAVI.
2. SMT.DANESHWARI W/O.MALLAPAP KOPPAD
AGE: 31 YEARS,OCC: AGRIL AND HOUSEHOLD,
R/O. BAGOJIKOPPA-591327
TQ: RAMDURG, DIST: BELAGAVI.
3. MALLAPPA BASAVANTAPPA NIDAGUNDI
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
4. SMT. NEELAVA W/O. MALLAPPA NIDAGUNDI
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
5. IRAPPA S/O.MALLAPPA NIDAGUNDI
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
6. CHANAMALLAYYA S/O.BASAYYA NIRVANI
AGE: 68 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
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RSA No. 100026 of 2021
C/W RSA No. 100048 of 2021
7. PRAKASH S/O. CHANAMALLAYYA NIRVANI
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
8. CHANDRAYYA S/O. BASAYYA NIRVANI
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
9. LAXMAN BASAPPA GODIGOUDAR
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
10. NAGAPPA BASAPPA GODIGOUDAR
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
11. BALAPPA BASAPPA GODIGOUDAR
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. MUDALAGI-591301,
TQ: MUDALAGI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. S A NEELOPANT ADV. FOR R1 & R2(NOC);
SRI. PRASHANT MATHAPATI ADV. FOR R3 TO R5;
SRI. S B NAIK ADV. FOR R6 TO R8;
SRI. CHETAN T LIMBIKAI ADV. FOR R9 TO R11)
THIS RSA FILED U/SEC.100 OF CPC, 1908, AGAINST THE
JUDGEMENT AND DECREE DATED 29.06.2020 PASSED IN
R.A.NO.400/2019 ON THE FILE OF THE XII ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BELAGAVI, SITTING AT
GOKAK, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DTD.03.08.2019, PASSED IN O.S.
NO.90/2008 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS
GOKAK, PARTLY DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION AND DECLARATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100026 of 2021
C/W RSA No. 100048 of 2021
JUDGMENT
RSA No.100026/2021 is preferred by defendant Nos.7 to 9 assailing the judgment and decree dated 29.06.2020 in RA No.388/2019 on the file of the XII Additional District and Sessions Judge, Belagavi, confirming the judgment and decree dated 03.08.2019 in OS No.90/2008 on the file of the II Additional Senior Civil Judge and JMFC, Gokak. RSA No.100048/2021 is preferred by the defendant No.6 assailing the judgment and decree dated 29.06.2020 in RA No.400/2019 on the file of the XII Addl. District and Sessions Judge, Belagavi, sitting at Gokak confirming the judgment and decree dated 03.08.2019 in OS No.90/2008 on the file of the II Additional Senior Civil Judge and JMFC, Gokak, whereby the suit of the plaintiffs by partition and separate possession was decreed.
2. Learned counsel for the parties have filed common compromise petition in both the appeals under order 23 Rule 3 of CPC and duly signed by parties and their respective counsel.
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4. The compromise petition is taken on record.
5. In the light of the compromise the plaintiffs 1 and 2 who are the respondent Nos.1 and 2 have agreed to pay a sum of Rs.7,00,000/- through DD No.119847 dated 17.02.2023 drawn on State Bank of India, Mudalagi Branch, to defendant Nos.10 to 12 towards full and final settlement of claim / dispute and defendant Nos.10 to 12 have agreed to accept the amount.
6. Portion of compromise petition reads as under:-
"B. The plaintiffs 1 and 2 have agreed to pay sum of Rs.7,00,000/- through demand draft bearing No.119847 dated 17/02/2023 drawn on State of India Mudalgi Branch to defendant No.10 to 12, towards full -7- RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021 and final settlement of the claim/dispute, the defendants 10 to 12 have agreed to accept the said offer.
C. Further the defendants 7 and 8 have agreed to pay a sum of Rs. 55,00,000/- (FiftyFive Lakh Rupees only) to defendants No.10 to 12 towards full and final settlement of the claim/dispute, their defendants 10 to 12 and have agreed and accepted the said offer. In view of the settlement the defendants 7 and 8 have already paid a sum Rs.41,00,000/- (Forty One Lakh Rupees only), on even dates to defendants No.10 to 12, the said amount is already received by the defendants 10 to 12 on even dates and it is acknowledged by them.Further the defendant No.7 and 8
have given a cheque bearing No.002090 dated 18/04/2023 drawn on The Mudalgi Cooperative Bank Ltd, for Rs. 4,00,000/ (Four Lakh Only) in favour defendant No.11, cheque bearing No. 002091 dated 18/04/2023 drawn on The Mudalgi Cooperative -8- RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021 Bank Ltd for Rs. 5,00,000/- (Five Lakh Only) in favour of defendant No.12 and cheque bearing No.002092 dated 18/04/2023 drawn on The Mudalgi Cooperative Bank Ltd for Rs.
5,00,000/ (Five Lakh Only) in favour of defendant No.10. Further the defendants 10 to 12 have received total agreed of Rs.55,00,000/- amount towards full and final settlement of the claim/dispute and defendants No.10 to12 have agreed that there would be no further claim what so ever in regard to the present dispute and suit schedule B properties.
D. Further in view of the above payments made to the defendants 10 to 12 by the Plaintiff and Defendants 7 and 8, the defendants 10 to 12 have agreed that sale deeds executed by defendant No.6 in favour of defendant No.7 dated 19/12/2002 and subsequent sale deeds executed by defendant No.7 in favour of defendant No. 10 to 12 dated 10/01/2008 and sale deed executed by defendant No.7 in favour of defendant No.12 -9- RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021 dated21/02/2008 stands cancelled as null and void and nonest in law. It is further agreed by the defendants 6 to 12 that the plaintiffs along with defendants No. 1 to 3 have become absolute joint owners of the suit Schedule properties B and they are entitle to their respective shares in the said properties as per judgement and decree dated 03/08/2019 passed in OS No.90/2008.
E. It is agreed by defendant No 8 and 9 that registered agreement of sale in their favour executed by plaintiff No.1 on 24/05/2001 stands cancelled and it is null and void and not binding upon the shares of the plaintiffs and defendants 1 to 3.
F. The defendant No.6as agreed that the GPA (General Power of Attorney) dated24/05/2001 stands cancelled and same is null and void.
G. The defendant No.7 as agreed that the sale deed dated 19/12/2002 executed by the defendant No.6 on the basis of GPA (General Power
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RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021Attorney) dated 24/05/2001 also stands cancelled and same is null and void and sale deed dated 19/12/2002 is not binding upon the shares of the plaintiffs and defendants 1 to 3.
H. In view of the settlement mentioned above the plaintiffs and the defendants 2 and 3 have agreed for the allotment of the shares in the suit Schedule-B to D properties as under;
I. The plaintiffs and defendants No.2and 3 have amicably with free will and consent have agreed to allot item No.1 to 9 of suit Schedule-B properties solely in the name of plaintiff No.1.
II. The plaintiffs and defendants No.2 and 3 have amicably with free will and consent have agreed to allot item No.1 to 6 of suit Schedule-C properties jointly in the name of plaintiffs and defendants No.1 to 3.
III. The plaintiffs and defendants No.2 and 3 have amicably with free will and consent have agreed to allot house property bearing TMC No.556
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RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021i.e., suit Schedule-D property solely in the name of defendant No.2.
IV. The plaintiff No.2 and defendants No.2 and 3 have agreed to allot the suit Schedule-A properties in favour of plaintiff No.1 alone in the compromise entered into between them in suit O.S. No.90/2008 on 04.04.2009 and the plaintiffs and defendants No.2 and 3 have agreed to accept and continue the same and are not altering the terms of the said compromise.
V. The plaintiffs and defendants No.2 and 3 are entitled to get their names entered in the concerned record of rights of suit Schedule-A to D properties as per the terms of the present compromise petition for which the defendants No.6 to 12 have no objection and will not henceforth obstruct plaintiffs and defendants No.2 and 3 for entering their names in the record of rights and also amicably agreed that, they will not in future disturb the peaceful possession and enjoyment of the plaintiffs and
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RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021defendants No.1 to 3 and have no right, title and interest over the suit schedule properties.
VI. The defendants No.10 to 12by virtue of the present compromise petition have amicably agreed to clear off any debt / encumbrance raised over the suit schedule properties of their own within one month from the date of entering into present compromise petition. For which debt the plaintiffs and defendants No.2 and 3 are not liable.
9. All the parties have agreed that they would not interfere with each other, or raise any quarrel in regard to the present dispute. Further all the parties have agreed to maintained peace and abide by the law and order and the conditions mentioned above.
10. The plaintiff No.1 has filed a complaint in Mudalgi Police Station crime No.24/2020 for offences punishable under section 143,147,447,427,504,506,149, of IPC
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RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021against the some of the defendants herein and others. In the said matter after investigation charge sheet is filed for the above offences and the same is pending in CC No.1084/2020 on the file of Civil Judge and JMFC Mudalgi. The Plaintiff No.1 has agreed to get the matter compounded and cooperate with the accused therein to get the matter quashed.
11. The defendant No.2 has filed a complaint in Mudalgi Police Station crime No.175/2016 for offences punishable under section 143, 147, 323, 504, 506, 149, of IPC against the some of the defendants No. 6 to 12 herein and others. In the said matter after investigation charge sheet was filed for the above offences and the same is pending in CC No.705/2016 on the file of Civil Judge and JMFC Mudalgi. The defendant No.2 has agreed to get the matter compounded and cooperate with the accused therein to get the matter quashed.
12. The plaintiff No.1 has filed a private complaint in PC No.169/2009,
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RSA No. 100026 of 2021 C/W RSA No. 100048 of 2021and as per order dated 27/10/2009 the said private complaint was referred to investigation, as referral order a case in Gokak Police Station crime No. 159/2010 was registered for the offences punishable under section 419, 420, 465, 468, 471, 109, of IPC against the some of the defendants 6 to 9 herein. The said matter after investigation charge sheet is filed for the above offences and the same is pending in CC No. 118/2011 on the file of Principal Civil Judge and JMFC Gokak. The Plaintiff No.1 has agreed to get the matter compounded and cooperate with the accused therein to get the matter quashed."
7. Accordingly, judgment and decree of the Courts below stands modified in terms of the compromise between the parties.
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RSA No. 100026 of 2021 C/W RSA No. 100048 of 20218. The compromise petition forms part and parcel of the Order.
9. Decree to be drawn accordingly.
Sd/-
JUDGE VMB List No.: 1 Sl No.: 57