Karnataka High Court
S G Sadananda Gowda vs Honnadasegowda on 18 November, 2023
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NC: 2023:KHC:41373
CRP No. 26 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO.26 OF 2021 (IO)
BETWEEN:
S.G. SADANANDA GOWDA
AGED ABOUT 35 YEARS,
S/O. GANGA BYRAIAH,
RESIDING AT DHANANAYAKANAPURA,
HAMLET, SIDDEGOWDANAPALYA,
HIREHALLI POST, UORDIGERI HOBLI,
TUMKUR TALUK.
...PETITIONER
(BY SRI. VIGHNESHWAR S. SHASTRI, SENIOR ADVOCATE FOR
SRI. SHRIKANTH BADARADINNI, ADVOCATE)
AND:
1. HONNADASEGOWDA
AGED ABOUT 65 YEARS,
S/O LATE NARASANNA,
Digitally RESIDING AT NANDIHALLI VILLAGE,
signed by UORDIGERI HOBLI,
SUMA
TUMKUR TALUK-572101
Location:
HIGH
COURT OF 2. GANGA BYRAIAH,
KARNATAKA AGED ABOUT 75 YEARS,
S/O LATE BYRANNA,
RESIDING AT DHANANAYAKANAPURA,
HAMLET, SIDDEGOWDANAPALYA,
HIREHALLI POST, UORDIGERI HOBLI,
TUMKUR TALUK-572101.
3. DAYANANDA
AGED ABOUT 37 YEARS,
S/O. GANGA BYRAIAH,
RESIDING AT DHANANAYAKANAPURA,
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CRP No. 26 of 2021
HAMLET, SIDDEGOWDANAPALYA,
HIREHALLI POST, UORDIGERI HOBLI,
TUMKUR TALUK-572101.
4. RAJESHWARI
AGED ABOUT 39 YEARS,
D/O GANGA BYRAIAH
W/O HANUMAHTARAYAPPA @ ANJINAPPA,
RESIDING AT GANDARAGOLLIPURA,
NEAR K.B.C., NEAR TOLL GATE,
NELAMANGALA TALUK-562123
...RESPONDENTS
(BY SRI. BHARADWAJ K.R., ADVOCATE FOR RESPONDENT NO.1;
NOTICE SERVED ON RESPONDENT NOS.2, 3 AND 4)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST
THE ORDER DATED 04.01.2021 PASSED IN O.S.NO.19/2015 ON
THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND JMFC,
TUMAKURU, DISMISSING THE I.A.NO.40 FILED UNDER ORDER VII
RULE 11(d) READ WITH SECTION 151 OF CPC FOR REJECTION OF
PLAINT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged an order dated 04.01.2021 passed by the III Additional Senior Civil Judge and JMFC, Tumakuru, in O.S.No.19/2015 by which, an application filed by him under Order VII Rule 11(d) read with Section 151 of Civil Procedure Code, 1908 of the Civil Procedure Code was rejected.
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2. The suit in O.S.No.19/2015 was filed for the following reliefs:
"(a) For Cancellation of the compromise decree obtained by the defendants in OS.NO.284/2014 on the file of the Hon'ble 1st Addl Civil Judge (S.D.) Tumkur Dated.
19.09.2014 holding as the same is fraudulent and fraud.
(b) For Declaration of plaintiffs title and possession and to declare the plaintiff is the absolute owner of the suit schedule properties and.
(c) For consequential relief of permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the plaintiff over the suit schedule property."
3. In respect of various agricultural lands, the plaintiff contended that the suit property belonged to Narasegowda, the propositus of a joint family which comprised of his two sons namely, Dasegowda and Bettegowda. The plaintiff is the grand son of Bettegowda, while Dasegowda's son Narasegowda did not have any -4- NC: 2023:KHC:41373 CRP No. 26 of 2021 children. The plaintiff claimed that the suit properties belonged to the joint family of the plaintiff and his senior uncle - Mr.Narasegowda and after all the members of the joint family died, the plaintiff succeeded to the suit property as an absolute owner. He alleged that the defendants who have no manner of right, title or interest over the suit properties, concocted a family tree by claiming that they are the members of the joint family and thereafter filed O.S.No.284/2014, which was compromised on 19.09.2014, in terms of which, the suit properties were partitioned, amongst themselves. In the said suit, the plaintiff was not arrayed as a party. Therefore, the plaintiff sought for the reliefs mentioned above.
4. The suit was contested by the defendants who claimed that Honnadasegowda @ Dasegowda was the propositus of the family of the defendants, who had son named Narasegowda @ Doddanarasegowda @ Bhyranna and the defendant No.1 is the son of Narasegowda @ Doddanarasegowda. They claimed that the name of the father of the defendant No.1 was referred as Narasegowda in -5- NC: 2023:KHC:41373 CRP No. 26 of 2021 the revenue records, while in some records, it was mentioned as Doddenarasegowda and also as Bhyranna. They claimed that propositus - Honnadasegowda is the grand father of defendant No.1 and Narasegowda @ Bhyranna is the father of the defendant No.1. They contended that the suit properties were the family properties of the defendants. They alleged that due to differences between the defendant No.1 and them, a suit in O.S.No.284/2014 was filed, which was amicably settled and a compromise petition was filed, in terms of which, the suit properties were divided. They contended that the plaintiff was in no way concerned with the family of Narasegowda and that his claim that he was the son of Narasegowda was false and concocted. With this and other contentions, the defendants contended that the suit for the reliefs sought is not maintainable. When the case was set down for arguments, an application under Order VII Rule 11(d) of Civil Procedure Code was filed to reject the plaint on the ground that a separate suit to set aside the compromise decree was not maintainable in view of Order XXIII Rule 3(a) of Civil Procedure Code and under Section 34 of the Specific Relief Act, 1963. This application -6- NC: 2023:KHC:41373 CRP No. 26 of 2021 was opposed by the plaintiff who contended that bar under Order XXIII Rule 3A of Civil Procedure Code, is not applicable, as the plaintiff was not claiming under the defendants, but was claiming independently. He also contended that it is for the plaintiff to establish his title to the suit property and relief 'B' in the suit related to declaration of the plaintiff's title and possession and to declare that the plaintiff is the absolute owner of the suit property. The Trial Court after considering the contentions urged by the defendant No.3 as well as the plaintiff rejected the application holding that the application was filed at a belated stage that too when the case was set down for arguments and also that there is no bar to question the validity of a compromise decree entered into between the stranger and the persons claiming under him. Being aggrieved by the same, this revision petition is filed by the defendant No.3.
5. The learned Senior Counsel for the defendant No.3 submitted that Order XXIII Rule 3A of Civil Procedure Code is specifically designed to restrict the forum to not only -7- NC: 2023:KHC:41373 CRP No. 26 of 2021 persons claiming under the parties to a suit which is compromised, but also all others. He submitted that the reasons for including all persons into Order XXIII Rule 3A Civil Procedure Code is to ensure that the decree passed by a Court is annulled by it. He therefore, submits that this suit filed to set aside the compromise decree in O.S.No.284/2014 is per se not maintainable. In this regard, he relied upon the judgment of the Hon'ble Apex Court in the case of Triloki Nath Singh Vs. Anirudh Singh (Dead) Through Legal Representatives and others - (2020) 6 SCC 629.
6. Learned Senior Counsel however, did not dispute the fact that the plaint filed meets the requirement of Section 34 of the Specific Relief Act, 1963, as the plaintiff had sought for declaration of his title to the suit schedule property and for consequential reliefs.
7. Per contra, the learned counsel for the plaintiff submitted that the plaintiff and the defendants are not related by blood and therefore, the compromise entered inter se between the defendants in respect of the suit schedule property does not bind the plaintiff. Consequently, -8- NC: 2023:KHC:41373 CRP No. 26 of 2021 the plaintiff is entitled to set at naught an illegal compromise entered into between the defendants in respect of the property which belonged to the plaintiff. The learned counsel distinguished the judgment of the Hon'ble Apex Court in the case of Triloki Nath Singh (supra) and contended that in the said judgment the Hon'ble Apex Court was considering a case where the purchaser from one of the defendants in the suit, had questioned the compromise and therefore, the Hon'ble Apex Court held that the purchaser is entitled to invoke the provision contained in Order XXIII Rule 3A of Civil Procedure Code. He contends that in the present case, the plaintiff and defendants are not related and therefore such a compromise being one obtained fraudulently, is not binding upon the plaintiff and hence, he is entitled to seek for setting aside such a compromise by filing a separate suit.
8. I have considered the submissions made by learned senior counsel for the defendant No.3 and learned counsel for the plaintiff.
9. Since the suit is filed for declaration of title of the plaintiff to the suit schedule property, and for perpetual -9- NC: 2023:KHC:41373 CRP No. 26 of 2021 injunction, the question of plaintiff not complying with Section 34 of the Specific Relief Act, 1963 does not arise as the plaintiff has sought for all reliefs to which he is entitled to.
10. Now turning to the question whether the suit was barred under Order XXIII Rule 3A Civil Procedure Code, it is necessary to refer to the Order XXIII Rule 3A Civil Procedure Code, which is extracted below:
"ORDER XXIII WITHDRAWAL AND ADJUSTMENT OF SUITS
1. xxxx
2. xxxx
3. xxxx 3A. Bar to suit.-No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful."
11. It is trite that a decree binds only parties to the suit and none else and therefore, the mandate under Order XXIII and Rule 3A Civil Procedure Code, applies not only to the parties to the suit, but also to their legal representatives or assignees/transferees. It is for this reason, that under
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NC: 2023:KHC:41373 CRP No. 26 of 2021 Sections 49 and 50 of Civil Procedure Code, it is made clear that every transferee of a decree shall hold the same subject to the equities (if any), which the judgment-debtor might have enforced against the original decree-holder. Likewise, a legal representative is bound by the decree that may be passed against his predecessor. As rightly contended by the learned counsel for the plaintiff, in the present suit, the plaintiff claimed that the defendants have no manner of right, title and interest in the suit schedule properties and that they were not related to the plaintiff in any manner whatsoever. The case of the plaintiff seems to be that the defendants being absolute strangers had brought about a collusive compromise in respect of a property which did not belong to them, but belonged to the plaintiff and therefore, he was entitled to take appropriate measure to annul such compromise decree, which eclipsed his title to the suit schedule property.
12. The Hon'ble Apex Court in the case of Triloki Nath Singh (supra) held at Paragraph No.23 as under:
"23. In other words, the appellant can only claim through his predecessor -
Sampatiya, to the extent of rights and
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remedies available to Sampatiya in reference to the compromise decree. Merely because the appellant was not party to the compromise decree in the facts of the present case, will be of no avail to the appellant, much less give him a cause of action to question the validity of the compromise decree passed by the High Court by way of a substantive suit before the civil court to declare it as fraudulent, illegal and not binding on him. Assuming, he could agitate about the validity of the compromise entered into by the parties to the partition suit, it is only the High Court, who had accepted the compromise and passed decree on that basis, could examine the same and no other court under the proviso to Order 23 Rule 3 CPC. It must, therefore, follow that the suit instituted before the civil court by the appellant was not maintainable in view of specific bar under Rule 3-A of Order 23 CPC as held in the impugned judgment."
13. Therefore, the plaintiff was entitled to file a separate suit to set at naught the compromise entered into between the defendants inter se and the Trial Court was justified in holding that the suit was not barred under Order XXIII Rule 3A of Civil Procedure Code. Yet another ground
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NC: 2023:KHC:41373 CRP No. 26 of 2021 on which, the application deserves to be dismissed is that the application was filed at the fag end of the proceedings. The defendants may have as well awaited the out come of the suit and they not having filed such an application at the earliest point in time, is a sure indicator that this application is filed to protract the proceedings.
14. In that view of the matter, the revision petition lacks merits and is dismissed.
15. Notwithstanding the dismissal of this revision petition, the defendant No.3 is entitled to urge the question regarding maintainability of the suit and the Trial Court may consider that question uninfluenced by the observations made herein above.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 14