Karnataka High Court
Shri.Shivalingappa vs Smt.Radha @ Vijaya on 4 October, 2018
Author: K.Somashekar
Bench: K. Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4TH DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
R.S.A. NO.100899 OF 2016 (Partn. & Sep. Possn.)
BETWEEN
SHRI.SHIVALINGAPPA
S/O CHANABASAPPA GATHVALIMATH,
AGE: 59 YEARS, OCC: ADVOCATE,
R/O: NEAR LAXMI EXTENSION,
LAXMI TEMPLE, TQ: GOKAK,
DIST: BELAGAVI.
..... APPELLANT
(BY SRI JAGADISH PATIL, ADV.)
AND
1. SMT.RADHA @ VIJAYA
W/O MAHANTESH GATHVALIMATH,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O: PLOT NO.26, 20TH CROSS,
KARAGAPPA GARDEN,
DIST: BENGALURU.
2. SHRI.VIVEK
S/O MAHANTESH GATHVALIMATH,
AGE: 26 YEARS, OCC: STUDENT,
R/O: PLOT NO.26, 20TH CROSS,
KARAGAPPA GARDEN,
DIST: BENGALURU.
3. SMT.SHANTAWWA
W/O CHANABASAPPA GATHAVALIMATH,
AGE: 94 YEARS, OCC: HOUSEHOLD WORK,
R/O: NEAR LAXMI EXTENSION,
LAXMI TEMPLE, TQ: GOKAK,
DIST: BELAGAVI.
:2:
4. SHRI.MURGENDRA
S/O CHANABASAPPA GATHAVALIMATH,
AGE: 54 YEARS, OCC: LECTURER,
R/O: PLOT NO.51/52, SHIVANANGAR,
TQ: GOKAK, DIST: BELAGAVI.
5. SMT.MAHADEVI
W/O MAHADEV SOLAPUTMATH,
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: FALLAS ROAD, GOKAK,
TQ: GOKAK, DIST: BELAGAVI.
6. SMT.VIJAYMALA
W/O SHRISHAIL KARDI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: VIJAYAPURA.
7. SMT.UMA
W/O RAJESHEKAR HIREMATH,
AGE: 51 YEARS,
OCC: AGRICULTURE & SERVICE,
R/O: VIJAYAPURA.
..... RESPONDENTS
(BY SRI RAMESH ZIRALI, ADV. FOR
SRI P P JOSHI, ADV. FOR R1 & R2
SRI RAVI BALIKAI, ADV. FOR R-3
SRI K. ANAND KUMAR, ADV. FOR R-4 TO R-7)
THIS RSA IS FILED U/S. 100 OF CPC 1908., AGAINST
THE JUDGEMENT & DECREE DTD:11.08.2016 PASSED IN
R.A.NO.263/2011, ON THE FILE OF THE II ADDITIONAL
DISTRICT JUDGE, BELAGAVI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD:01.08.2011,
PASSED IN OS.NO.137/2007 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, SAUNDATTI, PARTLY DECREEING THE
SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
:3:
JUDGMENT
This appeal has been slatted for orders but with the consent of the learned counsel for the appellant as well as the respondent, this appeal is taken up for final disposal due to filing of compromise petition under Order 23 Rule 3 read with Section 151 of CPC.
2. Factual matrix of this appeal are as under:
The plaintiffs filed a suit against the defendants in O.S.No.137/2007 for partition and separate possession of 1/4th share in the suit schedule property depicted therein in detail. The agricultural land properties bearing block No.417/1, measuring 5 acres 7 guntas situated at Munavalli village, block No.34 measuring 10 acre 18 guntas, situated at Yekkeri village, open site bearing Sy.No.47/A+B+C+D/A, plot No.1, 2 measuring 2 acres 5 guntas 49 anna, situated at Kangralli B.K. Village, Belgaum Taluk, the non-agricultural land bearing Sy.No.206/1A, plot No.5, measuring 4 guntas, situated at Gokak taluk Gokak, open site bearing block No.244, Gram Panchayat No.2405/2 measuring 170 Sq. Meter, situated at Munavalli :4: Taluk, Saundatti, Gram Panchayat No.2405/34 measuring 150 Sq. Meters, situated at Munavalli village, Taluk Saundatti and Gram Panchayat No.2405/3 measuring 150 Sq. Meters situated at Munavalli village, Saundatti Taluk, Gram Panchayat Nos.2690, 2700, 2702, 2709, 2677, 2706, 2707, 2715 and 2725 situated at Munavalli village, Taluk Saundatti are the joint family properties of plaintiffs and defendants. Plaintiffs have furnished the genealogy of the family.
3. After receipt of summons, the defendants participated in the suit by filing written statement through their respective counsel. The first defendant denying the genealogy filed by the plaintiffs contended that the plaintiffs are not in joint possession with the defendants.
4. Based upon the pleadings of both the parties in O.S.NO.137/2007 in all six main issues have been framed including three additional issues also have been framed. Whereas the main issues No.1, 4 and 5 answered in the affirmative and issues No.2 and 3 answered in the negative. The additional issues No.1 is answered in the :5: affirmative and issues No.2 & 3 answered in the negative. The same has been reflected in the judgment rendered by the trial Court. The suit of the plaintiffs was decreed in part holding that the plaintiffs No.1 and 2 are together entitled for 8/35th share and defendants No.1 to 3 are entitled for 8/35th share each in all the suit schedule properties. The defendants No.4 to 6 are entitled for 1/35th share in all the suit schedule properties subject to payment of proper Court fee. The same has been incorporated in the operative portion of the judgment in O.S.No.137/2007. The judgment and decree passed by the trial Court has been challenged in R.A.NO.263/2011. The said appeal was preferred by the defendant No.2 which came to be dismissed and the impugned judgment and decree passed by the trial Court in O.S.NO.137/2007 has been confirmed. Being aggrieved by the said judgment, the defendant No.2 has filed this appeal by urging various grounds.
5. In the meanwhile, the appellant and so also respondents have come forwarded to compromise the :6: matter and filed the compromise petition under Order 23 Rule 3 of CPC. The terms of the compromise petition are as under:
The Appellants and the Respondents do hereby agree and admit that the Plaintiffs/Respondents No.1 and 2 Smt. Radha @ Vijaya W/o. Mahantesh Gathavalimath and Vivek S/o. Mahantesh Gathavalimath, have been allotted the following properties out of suit schedule properties towards their share:
(i) Open site bearing V.P.C.NO.2405/2 (Sl.No.2684) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Plot No.2405/3,
Towards West - Plot No.2405/1,
Towards North - Road,
Towards South - Plot No.2405/31.
(ii) Open site bearing Sl.No.2706 (V.P.C.NO.2405/23) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Plot No.2405/22,
Towards West - Plot No.2405/22,
Towards North - Plot No.2405/10,
Towards South - Road.
:7:
(iii) Open site bearing Sl.No.2677 New No.2697
(V.P.C.No.2405/14) situated in Munavalli village, Tal: Saundatti, Dist: Belagavi, bounded as:
Towards East - Plot No.2405/15 & Plot
No.2405/16,
Towards West - Plot No.2405/13,
Towards North - Road,
Towards South - Plot No.2405/19.
(iv) Open site bearing Sl.No.2715(V.P.C.No.2405/31) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Plot No.2405/30,
Towards West - Plot No.2405/32,
Towards North - Plot No.2405/1,
Towards South - Road.
(v) Open site bearing V.P.C.NO.2405/34 (Sl.No.2719) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Plot No.2405/30,
Towards West - Plot No.2405/32,
Towards North - Plot No.2,
Towards South - Road.
(vi) An agricultural landed property, bearing Block No.34, situated in Yekkeri village, Tal: Saundatti, :8: Dist: Belagavi, totally measuring 10 Acres 18 guntas, out of this middle portion of 3 Acres 20 Guntas, as shown in the sketch annexed herewith, and this portion is bounded by Towards East - Block No.33 & 35,, Towards West - Block No.23, Towards South - Portion of land allotted to the share of Respondents No.5, 6 and 7.
Towards North - Portion of land allotted to the share of Appellant Shivalingayya Chanabasayya Gathavalimath.
In the total area of 10 Acres 18 Guntas, an area of about 18 guntas situated on the Eastern side is kept in common for use and wahiwat of the sharers in this land and the same is shown in the sketch.
The Appellants and the Respondents do hereby agree and admit that the Defendant No.2/Appellant Shri Shivalingayya S/o. Chanabasayya Gathavalimath, has been allotted the following properties out of suit schedule properties towards his share:
(i) Open site portion measuring about East-West 33 feet and North-South 65 feet, out of :9: R.S.NO.206/1A, Plot No.5, situated in Gokak and it is bounded by:
Towards East - House portion of the same property allotted to the share of Smt. Shantawwa W/o. Chanabasayya Gathavalimath (Defendant No.1), Towards West - House of Kulkarni, Towards North & South - Government Road.
It is agreed by the parties that if the Defendant No.1 is going to construct the building on the allotted open space, she shall leave a set back to the extent of 1 and ½ feet towards East i.e. from the Western wall of the house allotted to the share of Smt. Shantawwa W/o. Chanabasayya Gathavalimath (Defendant No.1). Now the appellant is residing at same premises he undertakes to vacate the same on or before 31- 12-2020.
(ii) Open site bearing Sl.No.2707 (V.P.C.No.2405/24) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Plot No.2405/23,
Towards West - Plot No.2405/25,
: 10 :
Towards North - Plot No.2405/9,
Towards South - Road.
(iii) Open site bearing Sl.No.2690 (V.P.C.No.2405/7) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as :
Towards East - Plot No.2405/8,
Towards West - Plot No.2405/6,
Towards North - Road,
Towards South - Plot No.26.
(iv) An agricultural landed property, bearing Block No.34, situated in Yekkeri village, Tal: Saundatti, Dist: Belagavi, totally measuring 10 Acres 18 Guntas, out of this Northern portion of 3 Acres, as shown in the sketch annexed herewith, and this portion is bounded by:
Towards East - Block No.33 & 35,
Towards West
And North - Block No.23,
Towards South - Portion of land allotted to
the share of Respondents
No.1 & 2/Plaintiffs No.1 &
2 Smt. Radha M.
Gathavalimath and Vivek
M Gathavalimath.
In the total area of 10 Acres 18 guntas, an area of about 18 guntas situated on the Eastern side is kept in common for use and wahiwat of the : 11 : sharers in this land and the same is shown in the sketch.
The Appellants and the Respondents do hereby agree and admit that the Defendant No.1/Respondent No.3, Smt. Shantawwa C. Gathavalimath has been allotted the following properties out of suit schedule properties towards her share:
(i) House portion measuring about East-West 33 feet and North-South 65 feet, out of R.S.NO.206/1A, Plot No.5, situated in Gokak and it is bounded by:
Towards East - House of Sulebhavi, Towards West - Open space portion of the same property allotted to the share of Defendant No.3 Shivalingayya C. Gathavalimath, Towards North And South - Government Road, It is agreed by the parties herein that if the Defendant No.3 is going to reconstruct the house portion on the allotted to her share, he shall leave a set back to the extent of 1 and ½ feet towards West i.e. from the Western wall of the house allotted to the share of Smt. Shantawwa W/o. Chanabasayya Gathavalimath (Defendant No.1) : 12 :
(ii) Open site bearing R.S.No.47/A/B+C+D/A, Plot No.1-
P2, situated in Kangrali B.K. village, Tal & Dist:
Belagavi, out of this 1/3rd joint share, the other 2/3rd share being given to Defendant No.3 Murgendra C. Gathavalimath and Defendant No.4 Smt. Mahadevi M. Solapurmath and this property is bounded as:
Towards East - Temple,
Towards West - House of Pattar,
Towards North - Government Road,
Towards South - House of Gokuram.
The Appellants and the Respondents do hereby agree and admit that the Defendant No.3/Respondent No.4, Murgendra S/o. Chanabasayya Gathavalimath, has been allotted the following properties out of suit schedule properties towards his share:
(i) Open site bearing Sl.No.2702 (V.P.C.NO.2405/19) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Plot No.2405/17 &
Plot No.2405/18,
Towards West - Plot No.2405/20,
Towards North - Plot No.2405/13,
Towards South - Road.
: 13 :
(ii) Open site bearing Sl.No.2700 (V.P.C.No.2405/17) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Road,
Towards West - Plot No.2405/14 &
Plot No.2405/15,
Towards North - Plot No.2405/16,
Towards South - Road,
(iii) Open site bearing Sl.No.2725 New No.2724
(V.P.C.No.2405/39) situated in Munavalli village, Tal: Saundatti, Dist: Belagavi, bounded as:
Towards East - Plot No.2405/40,
Towards West - Plot No.2405/38,
Towards North - Road,
Towards South - Block No.246.
(iv) An agricultural land bearing Block No.417/1 situated at Munavalli village, Tal: Saundatti, Dist: Belagavi, totally measuring 05 Acres-07 guntas. The Appellant and the Respondents do hereby agree that their family is having joint 1/5th share in this land and the remaining joint 4/5th share is belonging to their cousins and relations. The appellant and the Respondents No.1 to 3 and 5 and 6 do hereby state that they do not have any share in this land and the joint 1/5th share owned by their entire family has : 14 : been allotted to the share of the Defendant No.3/Respondent No.4, Murgendra C. Gathavalimath and he is at liberty to take further steps to carve out his separate 1/5th share in this land by filing appropriate suit for partition and separate possession against the other joint owners.
(v) Open site bearing R.S.NO.47/A/B+C+D/A, Plot No.1-
P2, situated in Kangrali B.K. village, Tal & Dist:
Belagavi, out of this 1/3rd joint share, the other 2/3rd share being given to the Defendant No.1 Smt. Shantawwa C. Gathavalimath and Defendant No.4 Smt. Mahadevi M. Solapurmath and this property is bounded as:
Towards East - Temple,
Towards West - House of Pattar,
Towards North - Government Road,
Towards South - House of Gokuram.
(vi) An agricultural landed property, bearing Block No.34, situated in Yekkeri village, Tal: Saundatti, Dist:
Belagavi, totally measuring 10 Acres 18 Guntas, out of this southern portion of 2 Acres 20 Guntas, as shown in the sketch annexed herewith, and this portion is bounded by:
Towards East - Block No.33 & 35,
Towards West - Block No.23,
: 15 :
Towards South - Block No.24,
Towards North - Portion of land allotted to
the share of Respondents
No.5, 6 and 7.
In the total area of 10 Acres 18 Guntas, an area of about 18 Guntas situated on the Eastern side is kept in common for use and wahiwat of the sharers in this land and the same is shown in the sketch.
The Appellants and the Respondents do hereby agree and admit that the Defendant No.4/Respondent No.5, Smt. Mahadevi W/o. Mahadev Solapurmath, has been allotted the following properties out of suit schedule properties towards her share:
(i) Open site bearing R.S.No.47/A/B+C+D/A, Plot No.1-
P2, situated in Kangrali B.K. Village, Tal & Dist:
Belagavi, out of this 1/3rd joint share, the other 2/3rd share being given to Defendant No.1 Smt. Shantawwa C. Gathavalimath and Defendant No.3 Murgendra C. Gathavalimath and this property is bounded as:
Towards East - Temple,
Towards West - House of Pattar,
Towards North - Government Road,
Towards South - House of Gokuram.
: 16 :
(ii) An agricultural landed property, bearing Block No.34, situated in Yekkeri village, Tal: Saundatti, Dist:
Belagavi, totally measuring 10 Acres 18 Guntas, out of this joint 1/3rd share in the middle portion of 1 Acre, as shown in the sketch annexed herewith, and the remaining joint 2/3rd share in the said 1 Acre being allotted to Defendants No.6 and 7/Respondents No.6 and 7 and this portion is bounded by:
Towards East - Block No.33 & 35,
Towards West - Block No.23,
Towards South - Portion of land allotted to
Respondent No.4,
Towards North - Portion of land allotted to
the share of plaintiffs/
Respondents No.1 and 2.
It is further agreed by all the parties herein that in the total area of 10 Acres 18 guntas, an area of about 18 Guntas situated on the Eastern side is kept in common for use and wahiwat of the sharers in this land and the same is shown in the sketch.
The Appellants and the Respondents do hereby agree and admit that the Defendant No.5/Respondent No.6, Smt. Vijayamala W/o. Shrishal Karadi, has been allotted the following properties out of suit schedule properties towards her share:: 17 :
(i) Open site bearing V.P.C.NO.2405/3 (New V.P.C.No.2405/18) situated in Munavalli village, Tal:
Saundatti, Dist: Belagavi, bounded as:
Towards East - Road,
Towards West - Plot No.2405/19,
Towards North - Plot No.2405/17,
Towards South - Road.
(ii) An agricultural landed property, bearing Block No.34, situated in Yekkeri village, Tal: Saundatti, Dist:
Belagavi, totally measuring 10 Acres 18 Guntas, out of this joint 1/3rd share in the middle portion of 1 Acre, as shown in the sketch annexed herewith, and the remaining joint 2/3rd share in the said 1 Acre being allotted to Defendants No.5 and 7/Respondents No.5 and 7 and this portion is bounded by:
Towards East - Block No.33 & 35,
Towards West - Block No.23,
Towards South - Portion of land allotted to
Respondent No.4,
Towards North - Portion of land allotted to
the share of Plaintiffs/
Respondents No.1 and 2.
It is further agreed by all the parties herein that in the total area of 10 Acres 18 Guntas, an area of about 18 Guntas situated on the Eastern side is kept in common for : 18 : use and wahiwat of the sharers in this land and the same is shown in the sketch.
The Appellants and the Respondents do hereby agree and admit that the Defendant No.6/Respondent No.7, Smt. Uma W/o. Rajashekar Hiremath has been allotted the following properties out of suit schedule properties towards her share:
(i) Open site bearing Sl.No.2709 (V.P.C.NO.2405/26) situated in Munavalli village, Tal: Saundatti, Dist:
Belagavi, bounded as:
Towards East - Plot No.2405/25,
Towards West - Plot No.2405/27,
Towards North - Plot No.2405/7,
Towards South - Road.
(ii) An agricultural landed property, bearing Block No.34, situated in Yekkeri village, Tal: Saundatti, Dist:
Belagavi, totally measuring 10 Acres 18 guntas, out of this joint 1/3rd share in the middle portion of 1 Acre, as shown in the sketch annexed herewith and the remaining joint 2/3rd share in the said 1 Acre being allotted to Defendants No.5 and 6/Respondents No.5 and 6 and this portion is bounded by:
Towards East - Block No.33 & 35,
: 19 :
Towards West - Block No.23,
Towards South - Portion of land allotted to
Respondent No.4,
Towards North - Portion of land allotted to
the share of Plaintiffs/
Respondents No.1 and 2.
It is further agreed by all the parties herein that in the total area of 10 Acres 18 guntas, an area of about 18 guntas situated on the Eastern side is kept in common for use and wahiwat of the sharers in this land and the same is shown in the sketch.
It is hereby agreed and admitted by the Plaintiffs and Defendants that they have been in peaceful possession and enjoyment of the above said properties allotted to their respective shares as mentioned in the paragraphs. That the Plaintiffs and Defendants have become the absolute owners of the above said respective properties that have fallen to the respective shares and they would not have any claim over the other properties other than those which have been allotted to their respective shares in the amicable partition as stated supra.
It is hereby agreed by the Plaintiffs and the Defendants that they shall enjoy the properties that have fallen to their respective shares independently without any hindrance as absolute owners. They would not have any further claims against each other henceforth.: 20 :
That the Plaintiffs and the Defendants do hereby agreed that the entries as per the above settlement and amicable partition be given effect to by the Revenue Authorities by entering their respective names to the respective properties that have fallen to their respective shares as stated above. In this regard the Plaintiffs and the Defendants do hereby agree that they would file necessary application/wardi to the Revenue Authorities to enter the names of respective persons to the properties allotted to their respective shares.
All the parties and their respective counsel have subscribed their signatures on the compromise petition.
Accordingly, the compromise petition filed by the appellant and respondents under Order 23 Rule 3 of CPC is hereby accepted. Consequently, the judgment and decree dated 11.08.2016 passed by the first appellate Court in R.A.No.263/2011 and the judgment and decree dated 01.08.2011 passed by the trial Court in O.S.No.137/2007 are hereby modified in terms of the compromise petition.
Office to draw the decree accordingly.
Sd/-
JUDGE Naa