IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR REGULAR FIRST APPEAL NO.291/2007 BETWEEN:
ANANDA SHETTY, AGED ABOUT 66 YEARS, R/A KANNAR KETHUBETTU, CHERKADY VILLAGE, CHERKADI POST, UDUPI – 576 210. …APPELLANT (BY SRI.KARAN BORAIAH.R, ADVOCATE) AND:
1. MANJAYYA SHETTY, S/O MAGAMMA SHEDTHI, HINDU, BUNT & LAND HOLDER, R/AT GALARIMAJALU, HEBRI VILLAGE, KARKALA TALUK, POST HEBRI – 576 112.
2. DARAMA SHEDTHI, SINCE DECEASED BY HER LRS 2(a) SADHU SHETTY, S/O DARAMA SHEDTHI, AGED ABOUT 40 YEARS, 2(b) JAYARAJA SHETTY, S/O DARAMA SHEDTHI, AGED ABOUT 38 YEARS, 2(c) BHOJA SHETTY, S/O DARAMA SHEDTHI, AGED ABOUT 25 YEARS, 2(d) SMT.KITTI SHEDTHI, D/O DARAMA SHEDTHI, AGED ABOUT 36 YEARS, 2(e) SMT.JALAJA SHEDTHI, D/O DARAMA SHEDTHI, AGED ABOUT 34 YEARS 2(f) SMT.GIRIJA SHEDTHI, D/O DARAMA SHEDTHI, AGED ABOUT 32 YEARS 2(g) SMT.SHAKILA SHEDTHI, D/O DARAMA SHEDTHI, AGED ABOUT 30 YEARS (RESPONDENT NOS.2(a) TO 2(g) ARE ALL R/AT URUGODI POST, SIDDARAMATT, KOPPA TALUK, CHIKKAMAGALURU DISTRICT-576 223) (IMPLEADED VIDE COURT ORDER DATED 27.3.2007) 3. CHENNU SHETTY S/O NAGAMMA SHEDTHI, AGED ABOUT 62 YEARS, R/AT KANNAR KISTHABETTU, CHARKODI VILLAGE & POST, UDUPI DISTRICT & TALUK – 576 210.
4. MEENAKKA SHEDTHI, W/O NARAYAN SHETTY, AGED ABOUT 75 YEARS, R/A ANGADIBETTU, HALUVALLI VILLAGE, POST KARJE, UDUPI TALUK & DISTRICT – 576 210.
5. SHARADA SHEDTHI W/O KALAPPA SHETTY. (DELETED VIDE COURT ORDER DATED 9.1.2008) 6. LACHCHU SHEDTHI, W/O NARAYAN SHETTY, AGED ABOUT 52 YEARS, R/A AKSHATHA NILAYA, SETTIBETTU, HOSAMANE, CHERKODY VILLAGE & POST, UDUPI DISTRICT & TALUK – 576 210.
7. VANAJA SHEDTHI, W/O SHAMBU SHETTY SINCE DEAD BY LRS.
7(a) SRIDHAR SHETTY S/O LATE VANAJA SHETTY AND LATE SHANKAR SHETTY. AGED ABOUT 49 YEARS, R/A MULLUGUDDE, CHERKADI POST, PETRI UDUPI TALUK & DISTRICT– 576 215.
7(b) SMT.ANITHA SHETTY D/O LATE VANAJASHETTY, AGED ABOUT 44 YEARS, R/A NO.1-55A, PUTTAMA NILAYA, MELMANE BELLARPADI POST, HIRIYADKA, UDUPI DISTRICT.
7(c) SMT.SAVITHA SHETTY, S/O LATE VANAJA SHETTY W/O SANJEEVA SHETTY AGED ABOUT 42 YEARS, R/AT MADAGA, CHENNIBETTU, ATHRADI POST, UDUPI TALUK AND DISTRICT.
7(d) SMT.KAVITHA SHETTY, D/O LATE VANAJA SHETTY W/O SATHISH SHETTY, AGED ABOUT 40 YEARS, SWAMY SAMARTH CHAWL, KUNDALIK WADI, NO.3, NAVASIL COLONY, RABELI, GANSOLI, NAVI MUMBAI- 400 701.
(AMENDED VIDE COURT ORDER DATED 12.9.2017) 8. SAKUNTALA T SHETTY, W/O TIMMAPPA SHETTY, AGED ABOUT 37 YEARS.
9. ROOPA T SHETTY, D/O TIMMAPPA SHETTY, AGED ABOUT 21 YEARS 10. SARITHA T SHETTY, D/O TIMMAPPA SHETTY, AGED ABOUT 19 YEARS.
11. SUSLUNA T SHETTY, D/O TIMMAPPA SHETTY, AGED ABOUT 11 YEARS 12. HARSHA KUMAR S/O TIMMAPPA SHETTY, AGED ABOUT 7 YEARS (RESPONDENT NOS.7 TO 12 ARE R/A INDRALI VILLAGE, ROOPA NILAYA, UDUPI TALUK, INDVALI POST & DISTRICT-576 210) 13. RAMADASA SHETTY, S/O KALAPPA SHETTY, AGED ABOUT 44 YEARS 14. VASANTHI SHEDTHI, D/O KALAPPA SHETTY, AGED ABOUT 43 YEARS.
15. SADANANDA SHETTY, S/O KALAPPA SHETTY, AGED ABOUT 37 YEARS.
16. TARA SHETTY, D/O KALAPPA SHETTY, AGED ABOUT 41 YEARS.
17. POORNIMA R SHETTY, D/O KALAPPA SHETTY, AGED ABOUT 39 YEARS.
(RESPONDENT NOS.13 TO 17 ARE R/A DODDANAGUDDE, GUNDIBAILU, SHIVALLI VILLAGE, UDUPI DISTRICT & TALUK- 576 210. …. RESPONDENTS (BY SRI.P.H.RAGHUPATHI & SMT.SATHYABHAMA, ADVS. FOR R-2(A TO G), R-4, R-6, AND PROPOSED R-7(A-D), R-14, R-16, R-17 R-5, R-8, R-9, R-10, R-11, R-12 AND R-13 ARE SERVED & UNREPRESENTED;
NOTICE TO R-1 IS HELD SUFFICIENT VIDE COURT ORDER DATED 20.3.2017; SRI.K.R.LAKSHMINARAYAN RAO, ADV. FOR R17;
SRI.VEERANNA G TIGADI, ADV. FOR IMPLEADING RESPONDENT, R11 AND R12 ARE MINORS.
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 31.10.2006 PASSED IN O.S.NO.127/1992 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN), UDUPI, PARTLY DECREEING THE SUIT FOR PARTITION.
THIS RFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal filed by fifth defendant challenging the judgment and decree passed in O.S.No.127/1992 by the Principal Civil Judge (Sr.Dn.), Udupi on 31.10.2006, whereunder suit filed by the first respondent – plaintiff for partition and separate possession of suit schedule properties came to be decreed in part by decreeing the suit and granting 1/8th share in plaint A-schedule properties and claim for partition in B-schedule property came to be dismissed.
2. This appeal had been listed for final disposal before this Court on 30.9.2011 and during the pendency, the fifth defendant-Anand Shetty and plaintiff-Manjayya Shetty (brothers) filed their respective affidavits and sought for disposal of the appeal in terms of the affidavits filed by them. It was stated in the affidavit filed by the fifth defendant / appellant herein that he has been cultivating schedule A property and had made improvements including construction of house, by investing huge amount out of his own funds and he had filed Form No.7 before the Land Tribunal in his individual capacity and as such the land came to be granted in his favour on 11.1.1979 by the Land Tribunal. It was also stated by fifth defendant that except himself and first respondent that is plaintiff, none of the respondents have made their appearance in the appeal. In the affidavit filed by the first respondent - plaintiff, he admitted that suit O.S.No.127/1992 filed by him was misconceived and was under a wrong advice and that fifth defendant / appellant herein had been cultivating schedule A property and had also made lot of improvements. It was also admitted by him that Land Tribunal had granted occupancy rights in favour of fifth defendant and order of the Land Tribunal would not enure to the benefit of joint family but it was in respect of claim made by fifth defendant in his individual capacity. He has also stated that except himself, none had contended that schedule A property is a joint family property and as such, he had consented for the judgment and decree dated 31.10.2006 passed by the trial court being set aside. On the basis of said affidavit, appeal came to be allowed by this Court on 30.9.2011 and judgment passed by the trial court came to be set aside.
3. Seeking clarification and recall of said order dated 30.9.2011 and to condone the delay in filing the said application, I.As.1/16 and 2/17 had been filed by respondent No.17. This court by order dated 7.8.2017 had allowed both the applications, by taking into consideration that matter has been compromised by the parties by filing a compromise petition under Order XXIII Rule 3 CPC. Said compromise petition had been filed before this Court on 7.8.2017 which was entered into between appellant and respondent Nos. 2(a) to 2(g), 4, 6, 7(a) to 7(d), 14 to 17. Since parties to said compromise petition who were present before court were more in number, this court directed them to appear before Registrar (Computers) for recording said compromise. Accordingly, parties appeared before Registrar (Computers) and as directed report dated 8.8.2017 came to be submitted recording the statements made by the parties. Contents of the reported, which reads as under:
“Parties to this Compromise Petition is D-5/Appellant as one Party and LRs of Defendant-1/Respondent-2 as R-2(a to g), Defendant-3/Respondent-4, LRs of Defendant-4/Respondent-5 as Respondent-14 to 17, Defendant- 6/Respondent-6, LRs of Defendant- 7/Respondent-7 (LRs in IA.9/2017) as R-7 (a to d) as another party.
2. The parties have presented the compromise petition before the Hon’ble Court along with 3 annexures. Registrar (Computers) is directed to submit report by confirming the Compromise entered into between the parties in terms of the Compromise Petition.
3. At the first step, rank of the parties to the compromise is ascertained with reference to their rank before the Trial Court. Plaintiff/R-1,D-1/R-2, D-2/R- 3, D-3/R-4, D-4/R-5, D-5/Appellant, D-6/R-6, D-7/R-7, D-8 to 17/R-8 to 17. Defendant No.1 is dead- represented by LRs i.e., R-2(a to g), Defendant No.4 is dead – represented by LRs i.e., R-14 to 17, Defendant No.7 is dead represented by LRs i.e., R-7 (a to d). Defendant No.2, 8 to 13 are not parties to this Compromise Petition.
4. The terms of the compromise has been read over to all the parties i.e., D- 5/Appellant, LRs of D-1/R-2 i.e., R-2 (a to g), LRs of D-4/R-2 i.e., R-14 to 17, D-6/R-6, LRs of D-7/R-7 i.e., R-7 (a to d), in Kannada Language which is known to them.
5. The parties admits that the schedule property to compromise is consists of 12 Guntas in Sy.No.103/3 at Cherkady Village, Bramhavara Hobli, Udupi Taluk & District is given in favour of LRs of D-1/R-2 (a to g), D-3/R-4, LRs of D-4/R-5 i.e., R-14 to 17, D-6/R-6, LRs of D-7/R-7 i.e.,R-7(a to d) by D- 5/Appellant.
6. D-3/R-4 is represented by her son GPA Holder- Mr.Ranganatha Shetty. D-4/R-5 since dead R-14 to 17 representing as LRs, R-6 is represented in person and D-7/R-7 is dead represented by LRs at R-7 (a to d).
7. D-5/Appellant has agreed that is giving away 12 Guntas of land in Sy.No.103/3 at Cherkady Village, Bramhavara Hobli, Udupi Taluk & District in favour of D-1/R-2 LRs i.e., R-2 (a to g), D-3/R-4, D-4 LRs i.e., R- 14 to 17, D-6/R-6 and D-7 LRs i.e.,R-7 (a to d).
8. The 12 Guntas of Land given by D- 5/Appellant is distributed equally by D-1, D-3, D-4, D-6 & D-7 branches to an extent of 2.4 Guntas each as per the Annexure-3-Sketch No.2. Anenxure-2 is the sketch No.1, indicating 10 feet road given up by D- 5/Appellant from Bramhavara-Hebri Main Road till Sy. No.103/3 for enjoyment of this 12 Guntas.
9. Parties to this compromise do admit that they have easementary right over 10 feet road from Brahmavar-Hebri Road till 12 guntas of land in Sy.No.103/3. D-5/Appellant concedes easementary right in their favour for ever. D-5/Appellant undertakes to execute a registered document in respect of easementary right over 10 feet road from his children in favour of D-1, D-3, D-4, D-6 & D-7 branches at Sub-Registrar office at Bhamhavara within 2 months from 08.08.2017.
10. Apart from above, D-5/Appellant offered DD for Rs.67,858/- each bearing No.237546, 237547, 237548, 237549 & 237550 dated 04.08.2017 drawn on Vijaya Bank, Moodabet and DD Nos. 625722, 625723 dated 05.08.2017 drawn on Vijaya Bank, Shimoga, wherein R-2 (a to g) agrees to receive the same before the Hon’ble Court.
11. D-5/Appellant offered DD for Rs.4,75,000/- bearing No. 625721 dated 05.08.2017 drawn on Vijaya Bank, Shimoga and GPA of D-3/R-4 Ranganatha Shetty agrees to receive the same before the Hon’ble Court. D- 6/R-6 agrees to receive the DD for Rs.4,75,000/- bearing No.513871 dated 04.08.2017 drawn from ICICI Bank, Vijaynagar, Bengaluru from D- 5/Appellant before the Hon’ble Court.
12. R-7 (a to d) being the LRs of D-7/R-
7 each agrees to receive before the Hon’ble Court DD for Rs.1,18,750/- bearing No.237555, 237556, 237557 dated 04.08.2017 and DD.No.237558 dated 05.08.2017 respectively drawn on Vijaya Bank, Moodabet as offered by D-5/Appellant.
13. The LRs of D-4/R-5 i.e., R-14 to 17 agrees to receive before the Hon’ble Court DD for Rs.1,18,750/- bearing Nos. 237551, 237552, 237553, 237554 dated 04.08.2017 drawn on Vijaya Bank, Moodabet as offered by D- 5/Appellant.
14. D-5/Appellant offers Rs.6,00,000/- in cash, wherein R-2 (a to f) agrees to receive before the Hon’ble Court Rs.17,143/- each, R-2(g) agrees to receive before the Hon’ble Court Rs.17,142/-, GPA holder of R-4 agrees to receive before the Hon’ble Court Rs.1,20,000/- and R-6 agrees to receive before the Hon’ble Court Rs.1,20,000/-, R-14 to 17 and R-7 (a to d) agrees to receive before the Hon’ble Court Rs.30,000/- each.
15. LRs of D-1/R-2, LRs of D-4/R-5, LRs of D-7/R-7 and GPA Holder D- 3/R-4 and D-6 accepts and admits the Settlement Deed executed by Smt. Geetha Shetty on 03.08.2017 in the document bearing No. BHV-1- 00284/2017 Book No.1 in the office of Sub-Registrar, Bramhavara Taluk, Udupi District in favour of D- 5/Appellant.
16. Thus D-5/Appellant giveup under compromise 12 Guntas of Land in Sy. No.103/3 at Cherkady Village, Bramhavara Hobli, Udupi Taluk & District and offered payment of a sum of Rs.29,75,000/- in favour of D-1, D-
3, D-4, D-6 & D-7 branches before the Hon’ble Court. Parties to the compromise petition do admit that they have no claim over the suit schedule property and they agreed and ratified the Judgment of the Hon’ble High Court of Karnataka in RFA No.291/2007 dated 30.09.2011 and binding on them.
17. Parties who are present submits that there is family diety temple in the house yard of D-5/Appellant. D- 5/Appellant admits the right of pooja, kola and other family tradition being carried out by all the branches of Smt. Nagamma Shedthi and he has no objection for them entering into said temple premises and to offer family traditional poojas. Parties to compromise do admits the version of D-5/Appellant including the similar right of D-5/Appellant. Parties do also admits D-5/Appellant being elder member of the entire family of Smt. Nagamma Shetty is managing the temple and it is under his custody and he may further do so without affecting the rights of other branches.
18. Identity of the parties is concerned:- D-5/Appellant, R-2 (a,c,d,g), D6/R-6, D-7 (a to c), R-14 to 17 have produced their Aadhar Card, same were verified in Aadhar Website.
19. Name of R-2 (b) is referred as Jayaram Shetty in Aadhar Card, wherein in Court Proceedings, his name is referred as Jayaraja Shetty. Father name is verified as Narayana Shetty by comparing with Election ID Card of Smt. Daramma, in which her husband name is Narayana Shetty. Hence, R-2(b) is asked to file an affidavit to clarify discrepancy in his name.
20. LR of D-1, i.e., R-2(e) is produced her Election ID Card, which is verified in the Website of Election Commission of India Portal.
21. The name of R-2(f) in Aadhar Card is referred as Vanaja, wherein in Court Proceedings name is referred as Girija. Hence, R-2(f) is asked to clarify the discrepancy in the name by filing an affidavit.
22. The original GPA is produced by Mr. Ranganatha Shetty which is said to be have been executed by his mother D-3/R-4 Smt. Meenakka Shedthi. His Aadhar Card and Aadhar Card of his mother are verified in Aadhar Website.
23. R-7(d) Smt. Kavitha, is not possessing any ID proof viz., Election ID Card, Aadhaar Card, Ration Card, Driving License or any kind of ID proof. Her photo is taken, colour printout is taken, her signature is obtained and identified by the learned Advocate for R-17. R-7(d) is asked to file her affidavit about her identity. Other parties to compromise do identify R- 7(d) as Smt. Kavitha Shetty.
24. The recording of Compromise is Photographed, colour print out is taken out, signature of the parties present and their learned advocates is taken and annexed herewith along with signature of the Registrar (Computers).
26. The learned Advocates for D- 5/Appellant and D-17/R-17 have identified all the parties present before the Registrar (Computers) as per their identity referred in the Compromise Petition. On the safer side, learned Advocate of D-17/R-17 is requested to file the Vakalat of parties in person before the Hon’ble Court along with the Affidavits of R-2 (b), R-2 (f), R-7 (d).
27. Since the parties have agreed for the terms of the Compromise, each one of them identify the others, there is no collusion, threat to the parties or coercion. Parties are very clear about the terms of settlement as narrated in the Compromise Petition. Hence, report is placed before the Hon’ble Court for acceptance.”
4. Since there was difference of opinion with regard to the ingress and egress of the land which came to be allotted to some of the defendants under the compromise, viz., there being ambiguity with reference to the width of the road to be used by the defendants including fifth defendant, it was submitted by the learned Advocates appearing for the parties that necessary deed would be executed in respect of said road as reflected in sketch -1 appended to the compromise petition dated 7.8.2017.
5. In the light of the said submission made, this Court did not accept the compromise petition so filed and it was ordered as under:
“Pursuant to said order, a report has been filed by Registrar (Computers) today whereunder it is reported that parties through compromise petition have resolved their disputes as set out in the compromise petition and it is stated thereunder that in order to have ingress and egress to the property allotted to each of the party as specified in Sketch-II as indicated in the compromise petition, existinng road is permitted to be used by them by fifth defendant namely, appellant. However, fact remains that said property where the road is said to be in existence is not in the ownership of appellant/fifth defendant. It is also not in dispute that appellant has settled this property (where road is said to be in existence) in favour of his sons and daughters, who are now the owners of said property and it is agreed to by the appellant that he would obtain appropriate registered deed from them by conferring the easementary right in favour of respondents, so that respondents would be able to make use of said road as ingress and egress to the property allotted to them by way of easementary right without obstruction from any quarter.
In the light of compromise petition also disclosing that payment is being made by the appellant to respondents in lieu of respondent Nos.2(a) to 2(g), 4, 6, 7(a) to 7(d), 14, 15, 16 and 17 giving up their right in remaining land of Sy.No.103/3 except to the extent as indicated in the Rough Sketch – II appended to the compromise petition whereunder respondents as indicated in the compromise petition are being allotted different portions and deed conferring the easementary right in favour of respondents is yet to be executed, it would not be appropriate at this stage itself to accept the compromise petition, that too, even before such deed has come into existence.
At this juncture, Sri.Karan Boraiah, learned counsel appearing on behalf of appellant would submit that if two (2) weeks time is granted, necessary deed would be executed by owners namely, children of appellant in favour of respondent Nos.2(a) to 2(g), 4, 6, 7(a) to 7(d), 14, 15, 16 and 17 in respect of road indicated in the Sketch-1 appended to the compromise petition and said deed would also be placed on record, for which Smt. Sathyabhama, learned counsel appearing for respondent Nos.2(a) to 2(g), 4, 6, 7(a) to 7(d), 14, 15, 16 and 17 would also agree.
It is stated by Smt. Sathyabhama, learned counsel that respondent No.15 – Sri. Sadananda Shetty is physically challenged and has been brought before the Court on wheelchair. This Court has ascertained from respondent No.15, who is present before Court today on a wheelchair as to whether he has affixed his LTM to the compromise petition and whether he has also authorised his sister, respondent No.14 – Smt. Vasanthi Shedthi to appear on his behalf to receive the amounts indicated in the compromise petition, he has answered in the affirmative. Hence, presence of respondent No.15 on the next date of hearing stands dispensed with.
Registrar (Computers) has also taken photographs at the time of admitting the execution of compromise petition and in token of parties having appeared before Registrar (Computers), they have also affixed their signatures and LTM including respondent No.15. Respondent No.15, who is present before Court also admits and states that he has no objection for Smt.Vasanthi Shedthi – respondent No.14 to appear on his behalf on the next date of hearing and receive the amount as indicated in the compromise petition. His submission is placed on record.
An affidavit is also filed by Smt. Girija Shetty – respondent No.2(f) whereunder it is stated that prior to her marriage she was called as “Girija Shetty” and now she is known and called as “Vanaja, W/o. Sudhakar Shetty”. Said affidavit is placed on record.
Respondent No.2(b) – Sri. Jayaraja Shetty has also filed an affidavit deposing thereunder that though his name is shown in the Court proceedings as “Jayaraja Shetty”, his actual name is “Jayaram Shetty”. Photo identity card (Aadhaar Card) issued by the Government of India would also evidence this fact. Said affidavit is placed on record.
List this matter on 23.08.2017.”
6. Thereafter matter came to be adjourned from time to time at the request of parties. Subsequently, on 11.9.2017, learned Advocates appearing for parties submitted that there are minor changes in the settlement/compromise arrived at between the parties and sought leave of the Court to incorporate the same.
7. In view of the fact that parties had earlier appeared before the Registrar (Computers) for recording the compromise, this Court was of the considered view that it would be appropriate to refer the matter to the Registrar (Computers) and as such, by order dated 11.9.2017, parties to earlier compromise petition dated 07.08.2017 were directed to appear before Registrar (Computers) by receiving the proposed revised compromise petition. Interlocutory Application No.11/2017 filed for amendment the compromise petition came to be allowed by order dated 12.9.2017. Pursuant to the direction issued by this Court to the parties to appear before Registrar (Computers), they have appeared and revised compromise petition came to be recorded by the Registrar (Computers) and a report came to be submitted on 12.9.2017 and this Court while accepting the report dated 12.9.2017 adjourned the matter for hearing on the compromise petition. In the report dated 12.9.2017, it has been recorded by the Registrar (Computers) as under:
“x x x Since it is stated in clause (6) of the above report that parties have agreed to receive cash component before Court, appellant has handed over cash of Rs.6 lakhs to Sri Sadhu Shetty - respondent-2(a) and it is stated by the parties present before Court viz., respondents-2(b) to (g), respondent-4 represented by GPA Holder (Sri Ranganatha Shetty – son of respondent-4), respondents-6, respondent-7(a), respondent-7 (b) through GPA Holder (Sri Sridhar Shetty – brother), respondents-7(c) and 7(d), respondent-14 through GPA Holder (Smt.Vasanthi K Shetty – sister), respondent-15, respondent-16, respondent-17 that he can receive the amount and accordingly, he acknowledges a receipt of Rs.6 lakhs. All the persons who are present before Court referred to herein above reiterate and admit that Sri Sadhu Shetty – respondent No.2(a) on behalf of them has received said amount. Likewise, demand drafts for the amount as indicated in the compromise petition dated 07.08.2017 at paragraph 8(iv) to (viii) drawn in favour of the above said respondents has also been handed over to respective respondents by the appellant and said respondents have acknowledged the receipt of same and have affixed their signatures to the order sheet.”
8. It would be necessary to observe at this juncture itself that Registrar (Computers) while forwarding the reports above referred to, has also appended the photographs of the parties who appeared before him and the print out of the scanned copies has also been appended to the said reports. As agreed to between the parties before Registrar (Computers) on 12.09.2017, payment of cash came to be made by the appellant in open court which came to be recorded by this Court on said date i.e, 12.9.2017 and it reads as under:
“Since it is stated in clause (6) of the above report that parties have agreed to receive cash component before Court, appellant has handed over cash of Rs.6 lakhs to Sri Sadhu Shetty - respondent- 2(a) and it is stated by the parties present before Court viz., respondents- 2(b) to (g), respondent-4 represented by GPA Holder (Sri Ranganatha Shetty – son of respondent-4), respondents-6, respondent-7(a), respondent-7 (b) through GPA Holder (Sri Sridhar Shetty – brother), respondents-7(c) and 7(d), respondent-14 through GPA Holder (Smt.Vasanthi K Shetty – sister), respondent-15, respondent-16, respondent-17 that he can receive the amount and accordingly, he acknowledges a receipt of Rs.6 lakhs. All the persons who are present before Court referred to herein above reiterate and admit that Sri Sadhu Shetty – respondent No.2(a) on behalf of them has received said amount. Likewise, demand drafts for the amount as indicated in the compromise petition dated 07.08.2017 at paragraph 8(iv) to (viii) drawn in favour of the above said respondents has also been handed over to respective respondents by the appellant and said respondents have acknowledged the receipt of same and have affixed their signatures to the order sheet.”
9. It is also not in dispute that pursuant to the order dated 7.8.2017, appellant herein has executed a deed confirming easementary rights relating to the road as indicated in Sketch 1 appended to the compromise petition dated 12.9.2017. The sketch appended to the compromise petition has been agreed to form part and parcel of the decree.
10. In the light of compromise having been entered into between the parties, as noticed hereinabove, the reports submitted by Registrar (Computers) also disclosing that he was satisfied with regard to execution of compromise and also the identity of the parties present before him and said parties have also appeared before this Court and admitted the execution of the compromise terms without any force, threat or coercion, this Court is of the considered view that there is no impediment for amended compromise petition being accepted. Accordingly it is hereby accepted.
11. In the light of the aforestated facts, judgment and decree passed in O.S.No.127/1992 by the Principal Civil Judge (Sr.Dn.), Udupi dated 31.10.2006, requires to be modified to the said extent.
For the reasons above stated, I proceed to deliver the following:
JUDGMENT (1) Appeal is hereby allowed in part. Judgment and decree passed by the Principal Civil Judge (Sr.Dn.), Udupi in O.S.No.127/1992 dated 31.10.2006 stands modified to the extent of the terms agreed to between the parties as per the compromise petition.
(2) In the light of affidavit dated 30.09.2011 filed by the first respondent, the judgment and decree of the trial court stands modified to the said extent also.
(3) Registry is directed to draw the decree in terms of the amended compromise petition dated 12.09.2017. Sketch Nos.1 and 2 and Release Deed dated 03.08.2017 appended to the compromise petition shall form part and parcel of the decree.
(4) Parties to get the decree registered as required under Section 17(1)(b) and (e) of the Registration Act, 1908 within three months from the date of receipt of certified copy of the decree.
All pending applications and memos shall stand consigned to record.
Sd/- JUDGE RS/* ct:dn