Karnataka High Court
Sri Chennigaramaiah' vs Sri Byralingashetty S/O ... on 5 September, 2013
1 RSA 1036/08
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF SEPTEMBER, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.1036 OF 2008
BETWEEN:
Chennigaramaiah,
S/o. Kasthuri Ramaiah,
Aged about 63 years,
Agnivamsha Kshatriya by Caste,
R/o. Brahmasandra Village,
Kallambella Hobli,
Sira Taluk,
Tumkur District-572 212. ... APPELLANT/S
[By Sri. K. Hanumantharayappa, Adv.]
AND:
1. Byralingashetty,
S/o. Siddaiahshetty,
Since Dead by L.Rs.,
Gangamma,
W/o. late Byralingashetty,
Brahmasandra Village,
Kallambella Hobli,
Sira Taluk,
Tumkur District-572 212.
2 RSA 1036/08
2. Siddalingappa,
S/o. Late Byralingashetty,
Age: Major,
R/o. Kumarike,
Hanumantha Nagar,
Kallambella Hobli,
Sira Taluk,
Tumkur District-572 212.
3. Jayanna,
S/o. late Byralingashetty,
Age: Major,
Agnishamaka Dala,
Hosadurga,
Chitradurga District.
4. Nataraja,
S/o.late Byralingashetty,
Age: Major,
R/o. Brahmasandra Village,
Kallambella Hobli,
Sira Taluk,
Tumkur District-572 212. ... RESPONDENT/S
[By Sri. S. Siddappa &
Sri. S. Sunil Dutt, Advs. for R1, 2 & 4.
Appeal is abated as against R3
V.C.O. dt. 12.03.2013]
***
This RSA is filed u/Section 100 of CPC against
the Judgment & Decree dt. 20.2.08 passed in R.A.
No.78/05 on the file of the Civil Judge, (Sr.Dn.),
Sira, dismissing the appeal and confirming the
Judgment and Decree dt. 29.7.02 passed in O.S.
No.146/99 on the file of the Addl. Civil Judge,
(Jr.Dn.) and JMFC., Sira.
3 RSA 1036/08
This RSA coming on for Admission this day, the
Court delivered the following:
JUDGMENT
The unsuccessful plaintiff has approached this Court in this second appeal challenging dismissal of his suit for declaration, injunction and for possession confirmed in the first appeal by the first appellate Court.
2. The facts relevant for the purpose of this appeal are as under:
The parties are referred to as per their rank before the trial Court.
The appellant herein is the plaintiff, whereas the respondents are the legal representatives of deceased defendant. The suit property is the agricultural land bearing Sy. No.19, measuring 3 acres 23 guntas of Brahmasandra village, Kallambella Hobli, Sira Taluk, Tumkur, with the boundaries mentioned in the schedule to the plaint. It is 4 RSA 1036/08 contended that the plaintiff purchased the suit property under the registered Sale Deed dated 01.09.1982 from its erstwhile owner Venkataramaiah and he is said to be in possession of the same on the basis of the said registered Sale Deed. The deceased defendant had instituted the suit against the plaintiff in O.S. No.105/1990, seeking the relief of declaration of his title over 1 acre and 9 guntas of land out of suit property and on 06.06.1990, the deceased defendant is said to have obtained a decree as prayed for. It is his contention that the said decree is void and as it is an unregistered document, it does not create any right, title or interest in the suit property, which was subject matter of the said compromise decree.
It is also his contention that the said compromise is hit by the provisions of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act. Hence, sought for declaration that he is the 5 RSA 1036/08 absolute owner and also in possession of the suit property.
The deceased defendant filed his written statement alleging that he has been in possession of 1 acre 9 guntas of land much earlier to purchase of the suit property by the plaintiff and in such circumstances, he instituted the suit in O.S. No.105/1990 for declaration of his title to the property to an extent of 1 acre 9 guntas on the basis of adverse possession. He contends that there was a compromise and the present plaintiff having been agreed for title of the deceased defendant, entered into a compromise and a decree was passed on 06.06.1990. Therefore, it is his contention that he has been in possession of the said portion out of the suit land since long and the possession and his title continued over the said property. On these grounds he has sought for dismissal of the suit.
On the basis of these pleadings the trial Court framed as many as 7 issues and 2 additional issues. 6 RSA 1036/08 The plaintiff examined himself as P.W.1 and a witness P.W.2 and in their evidence documents Exs.P1 to 7 were marked. The deceased defendant was examined as D.W.1 and a witness D.W.2 and in their evidence documents Exs.D1 to 7 were marked.
The trial Court after hearing the parties and on appreciation of the material on record, dismissed the suit of the plaintiff on the ground that it is barred by limitation as the deceased defendant was in possession of 1 acre 9 guntas out of suit land for more than 12 years and the suit is not filed within time and it also held that the compromise decree is in-operative and it is not a registered document. But, anyhow, dismissed the suit to the extent of the portion said to be in possession of the defendant on the ground of limitation. Aggrieved by the Judgment and Decree, the plaintiff approached the first appellate Court in R.A. No.78/2005.
7 RSA 1036/08
During the pendency of the appeal, the defendant died and his legal representatives who are the respondents in the appeal were brought on record.
The first appellate Court framed two points for its determination about the validity of the compromise Judgment and Decree of the trial court. Ultimately, it held that the plaintiff ought to have sought for cancellation of the compromise decree and he is precluded from praying for the relief of declaration that he is the absolute owner of suit property, which includes the suit property of earlier suit. But, anyhow, the appellant had not sought for cancellation of the compromise decree and the suit having been barred by time. Aggrieved by the Judgments and Decrees of the Courts below, the present appeal is filed.
3. I have heard learned counsel for the parties.
8 RSA 1036/08
4. The point that arises for my consideration is;
Whether the appellant has made out any substantial question of law for consideration to admit this appeal?
5. Learned counsel for the appellant would contend that the compromise decree dated 06.06.1990 passed in O.S. No.105/1990 was obtained by fraud and it is not a lawful decree as the deceased defendant was not in possession of the suit property under the compromise petition for a period exceeding 12 years. He contends that the plaintiff had purchased the property in the year 1982 and the suit came to be instituted in the year 1990 and as the erstwhile owner has not been impleaded as a party in O.S. No.105/1990, the decree is unlawful and it is void and is not enforceable in law. So also, it is his contention that the appellant has sought for the relief of declaration and the relief of cancellation of the decree was not necessary. Hence, he submits 9 RSA 1036/08 that the Court below committed an error in dismissing the suit of the appellant despite the fact that the said compromise decree was inoperative and no title is conveyed to the deceased defendant on the basis of the compromise decree.
On the other hand, learned counsel for the respondent supported the Judgments and Decrees of the Courts below and it is her contention that the suit is barred by limitation and that the compromise decree is binding upon the parties and in the absence of any relief of cancellation of the compromise decree, the suit cannot be maintained. She submits that both the Courts below have rightly dismissed the suit of the appellant.
6. It is not in dispute that the plaintiff has a registered Sale Deed dated 01.09.1982 in his favour, so also there is no dispute that there is a compromise decree dated 06.06.1990 between the plaintiff and the deceased defendant. The suit 10 RSA 1036/08 property measures 3 acres 23 guntas, out of which the deceased defendant claims that he has been in possession of 1 acre 9 guntas of the land which was subsequently divided and numbered as Sy. No.19/2. So, as per the version of the defendant, he has been in possession of Sy. No.19/2 all along since earlier to purchase of the suit survey number by the plaintiff. Therefore, he submits that he had instituted a suit for declaration in O.S. No.105/1990 alleging that he has been in possession of the land measuring 1 acre 9 guntas subsequently numbered as Sy. No.19/2 for more than 12 years and sought for the relief of declaration of title by adverse possession. So, this suit was compromised and the appellant even does not dispute the signature on the compromise petition and his presence in the Court on the date of the compromise. What is contention of the plaintiff is that this compromise is in-operative for the sole reason that the compromise decree is unlawful.
11 RSA 1036/08
7. As could be seen from the provisions of Order XXIII Rule 3 CPC., the provisions of 3A was inserted by an amendment to CPC by Act No.104 of 1976 and it provides;
"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."
Though this provision does not apply to the case where a decree was obtained by fraud or misrepresentation. It is relevant to note that in the pleadings by the plaintiff, there are no particulars or details of fraud or misrepresentation. On the basis of which this decree was obtained by deceased defendant. In fact, he was present before the Court and he has signed the compromise petition and in pursuance of the compromise petition, a decree was drawn in the suit. In the absence of any pleadings about the particulars of fraud or misrepresentation, a compromise decree cannot be set 12 RSA 1036/08 aside though it is contended that a relief of declaration of title by adverse possession can be granted in case if the possession is more than 12 years and the learned counsel submits that as the suit property was purchased by the plaintiff in the year 1982 and the suit was instituted in O.S. No.105/1990 only 8 years have elapsed and therefore grant of compromise decree for the relief of declaration of title is an unlawful decree. On this aspect of the matter, there is no material placed on record and even considering the pleadings in the suit in O.S. No.105/1990, wherein it is contended by the plaintiff in the said suit [deceased defendant in this appeal] that he was in possession of the suit portion measuring 1 acre 9 guntas even much earlier to the Sale Deed dated 01.09.1982 in favour of the plaintiff. It is no-doubt true that the erstwhile owner of the suit survey number was a necessary party to the decree in the suit in O.S. No.105/1990. The parties have waived their right to 13 RSA 1036/08 implead the erstwhile owner as a party to the proceedings in the said suit. In such circumstances, after waiving the right for impleading the erstwhile owner, a contention cannot be taken after lapse of about 9 years in the present suit solely on the ground that the plaintiff had waived his contention with regard to impleadment of erstwhile owner as a party in O.S. No.105/1990. Therefore, the decree in O.S. No.105/1990 is unlawful and cannot be ground to challenge the validity of the compromise.
8. So far as the validity of the compromise decree obtained in O.S. No.105/1990 is concerned, it is relevant to note that no right accrued in favour of the deceased defendant under the compromise decree and therefore, the question of its registration does not arise for consideration. On this aspect of the matter, learned counsel for the respondent has placed reliance on the decision of the Apex Court reported in AIR 2006 Supreme Court 14 RSA 1036/08 3297 [Som Dev and Ors. Vs. Rati Ram and Anr.], wherein the Apex Court took into consideration the provisions of Section 17 of the Registration Act has held that a compromise decree need not be registered in case if the property was the subject matter of the said suit and furthermore, that in such a suit, the right do not accrue in favour of the deceased defendant under the said decree as it was the relief of declaration of title on the basis of the adverse possession.
9. Learned counsel for the appellant has placed reliance on the decision of the Apex Court reported in AIR 1993 Supreme Court 1139 [Banwari Lal Vs. Smt. Chando Devi (through L.R.) and another]; wherein the facts reveal that there was an allegation that the compromise was not lawful. The material placed on record reveal that the compromise was not lawful within the meaning of Order XXIII Rule 3 CPC and the Apex Court held that the compromise can be recalled. The perusal of the 15 RSA 1036/08 facts reveal that there was a remedy of appeal under Section 96 of CPC or an application could have been filed to set aside the compromise. But, on the facts of the aforesaid case, there was request to recall the compromise and as the decree obtained therein was unlawful, it came to be recalled. No such effort has been made by the plaintiff either by filing an application to set aside the compromise decree or challenge the decree by way of an appeal and in such circumstances, I do not think that the principles laid-down therein are applicable to the facts on hand. Furthermore, in view of specific bar to entertain a suit for setting aside the compromise under the provisions of Order XXIII Rule 3A CPC., I do not think that in the absence of the pleadings and the proof of fraud or misrepresentation, the appellant is entitled to the relief to set aside the compromise.
10. That apart, the compromise decree obtained between the parties in O.S. No.105/1990 was a valid 16 RSA 1036/08 decree and no fraud or misrepresentation was played and in the absence of any pleading the Courts below have rightly held that the plaintiff has utterly failed to prove any fraud or misrepresentation. Therefore, a compromise petition cannot be held to be invalid or unlawful.
That apart, in a suit for declaration of title, it was necessary for the plaintiff to seek cancellation of the compromise decree as could be seen from the provisions of Section 34 of the Specific Relief Act. Even under the provisions of the Limitation Act, Article 59 provides limitation of 3 years to seek the relief of cancellation or setting aside an instrument or a decree or for the rescission of a contract and the limitation commences from the date of the knowledge of the decree. It is not in dispute that the plaintiff was present before the Court on the date of the compromise decree was passed by the Court and he had the knowledge of the compromise decree and the suit 17 RSA 1036/08 was not instituted within the period of 3 years from the knowledge of the compromise decree as permissible under Article 59 of the Limitation Act. Even on this count also, the suit instituted by the plaintiff is barred by limitation. It is relevant to note that as contended by the deceased defendant, he was in possession of the suit property as on 1990 and he continued the possession till long and the suit came to be instituted for the first time in the year 1999 i.e., more than 12 years to cancel the decree. Therefore, the Courts below have rightly held that the suit is barred by limitation insofar as the relief of possession is concerned. Taking into consideration the facts and circumstances of the case, I do not find any substantial question of law for consideration in this appeal.
In the result, the appeal fails and it is dismissed.
Sd/-
JUDGE.
Ksm*