IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.1620/2011 BETWEEN:
DODDAMUTHAIAH @ CHIKKAMOGA S/O CHIKKANNA AGED ABOUT 53 YEARS R/O NAGARAKERE VILLAGE KASABA HOBLI, MADDUR – 571 428 MADDUR TALUK, MANDYA DISTRICT.
SINCE DEAD BY HIS LR’S VIZ., 1(a). SMT. PUSHPAVATHI W/O LATE DODDAMUTHAIAH @ CHIKKAMOGA AGED ABOUT 46 YEARS.
1(b). N D NAGESH S/O LATE DODDAMUTHAIAH @ CHIKKAMOGA AGED ABOUT 27 YEARS.
1(c). N D MANJUNATH S/O LATE DODDAMUTHAIAH @ CHIKKAMOGA AGED ABOUT 23 YEARS.
1(d). N D MATHURAJU S/O LATE DODDAMUTHAIAH @ CHIKKAMOGA AGED ABOUT 21 YEARS.
ALL ARE RESIDING AT R/O NAGARAKERE VILLAGE – 571 428 KASABA HOBLI, MADDUR TALUK MANDYA DISTRICT.
…APPELLANTS (BY SRI H C SHIVARAMU, ADVOCATE) AND:
1. KENCHAMMA @ MARIKENCHAMMA W/O LATE HOLASALAIAH AGED ABOUT 57 YEARS C/O GOVINDARAJU, BEHIND GOVERNMENT HIGH SCHOOL MADDUR – 571 428.
2. M CHANDRA SON OF LATE MUTAIAH AGED ABOUT 40 YEARS R/O 4TH CROSS, IN FRONT OF KARNATAKA TALKIES LELAVATHI EXTENSION MADDUR – 571 428.
3. IMTIAZUNNISSA FATHER NAME NOT KNOWN TO THE APPELLANT No.1065, 1ST BLOCK BEHIND GOVERNMENT HIGH SCHOOL MADDUR – 571 428.
...RESPONDENTS (BY SRI S V PRAKASH, ADVOCATE FOR R-1 R-3 IS DELETED V/O DTD.17.6.2014 R-2 IS DELETED V/O DTD.28.1.2019) THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 1.6.2011 PASSED IN R.A.No.72/2008 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, MANDYA, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED:31.3.2008 PASSED IN O.S.No.25/2001 ON THE FILE OF THE CIVIL JUDGE(SR.DN) MADDUR.
THIS RSA COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is directed against the judgment and decree dated 1.6.2011 passed in R.A. NO.72/2008 by the Principal District Judge, Mandya.
2. The learned counsel for the appellants files a memo dated 28.1.2019 stating that Smt. Pushpavathi, Appellant 1(a) may be treated as legal representative of appellant No.1(d)- N.D.Muthuraj who died on 2.4.2018. Memo is taken on record.
3. In the light of the memo dated 28.1.2019, appellant 1(a) Smt. Pushpavathi who is already on record is treated as legal representative of deceased appellant No.1(d)-N.D.Muthuraj.
4. Learned counsel for appellants filed a memo dated 14.1.2019 seeking deletion of respondent No.2-
M. Chandra who is said to be a tenant in the schedule property.
5. In the light of the said memo, respondent No.2- M,Chandra, is deleted at the risk of the appellants.
6. The learned counsel appearing for both the parties filed a Compromise petition dated 14.1.2019 under Order XXIII Rule 3 of CPC duly signed by the parties and identified by them and the same is taken on record.
7. The parties to the lis are present and their presence is placed on record.
8. The compromise petition dated 14.1.2019 read as under:.
1.Upon the intervention of elders, well- wishers and relatives, the parties to the above appeal have amicably settled their dispute which gives rise to prefer the above appeal.
2. It is an admitted fact that Doddamuttaiah who is now represented by the appellant as his legal heirs is the nephew of Kenchamma @ Mari Kenchamma who is first respondent in this appeal.
3. Before adverting to the terms of the settlement, it is necessary to state the circumstances which led to prefer the above appeal.
4. The first respondent herein has laid the suit in O.S. No.25/2001 on the file of learned Senior Civil Judge, Maddur praying for a judgment and decree for declaration and consequential prayer of permanent injunction against late Doddamuttaiah in respect of the land measuring 10 guntas comprised in Sy.No.60/6 (new Sy.No.60/5), Sy.No.39/4A measuring 20 guntas situated at Goravanahalli village, kasaba Hobli, Maddur Taluk and property bearing TMC No.1065, site No.5, Katha No.807/762 measuring east to west 40 feet, north to south 40 feet situated at Kaverinagar, behind Government High School, Maddur and property bearing panchayath Katha No.364 measuring east to west 33 feet, north to south 60 feet situated at Nagarakere village, Kasaba Hobli, Maddur Taluk. It is also a matter of record that the said suit having been dismissed by a judgment and decree dated 31.03.2008, the first respondent (Kenchamma) scaled it to the court of learned Principal District and Sessions Judge, Mandya by way of regular appeal in R.A.No.72/2008. The learned District Judge upon marshalling the materials available on record by a judgment and decree dated 01.06.2011 decreed the suit as prayed for after setting aside the judgment and decree of the trial court. Late Doddamuttaiah making grouse against eh judgment and decree of the lower appellate court has preferred the above appeal. In the meantime, it is also admitted fact, that the first respondent sued out the judgment and decree passed in R.A.No.72/2008 before the learned Senior Civil Judge, Maddur in Ex.Case No.84/2013 which is pending consideration.
5. It is submitted that Doddamuttaiah during his life time alienated 3 guntas of land comprised in Sy. No.39/4A of Goravanahalli village, Kasaba Hobli, Maddur Taluk I favour of B Appajigowda. In order to give quietus to the dispute once for all and to buy peace, the purchaser of said 3 guntas of land B.Appajigowda has also been made a party to this compromise petition. Now, the parties having settled their dispute amicably, the terms of the same are set out hereunder:-
(i) The parties have mutually agreed that the properties morefully mentioned and described in A-schedule to this petition are allotted to the appellant. Similarly the properties mentioned and described in the B-schedule to the petition are allotted to the share of the first respondent. Similarly, the property mentioned i.e. 3 guntas of land has been assigned to B.Appajigowda which he had purchased from late Doddamuthaiah which is morefully mentioned and described in the C-schedule to this petition.
((ii) The parties have agreed that henceforth they shall enjoy the properties allotted as per schedule to this petition. The appellants have no right title, interest of whatsoever nature in the properties allotted to the first respondent as per schedule-B to this petition and the property allotted to B.Appajigowda as per C-schedule. Similarly, the properties allotted to the appellant as per A-schedule to this petition and also over the property allotted to B.Appajigowda as per C- schedule to this petition.
((iii) The parties have agreed that they shall approach the competent revenue authorities to have the Katha entered in their name in respect of the agricultural lands allotted to them as per schedule to this petition and also approach the competent authority to have the Katha entered in respect of non-agricultural properties and they mutually agreed that they would give their no objection if necessary before the above said authorities in the matter of transfer of Katha.
(iv) The parties to this petition have agreed to set up apart 2 guntas of land comprised in Sy.No.39/4A of Goravanahalli village for the purpose of as a right of way in order to have ingress and egress to reach their respective properties and same is more fully mentioned and described in the schedule-D to this petition and also separately shown in the sketch which has been appended to this compromise petition. The parties have agreed that said common passage shall be used by all of them without obstructing others to use the same and the said properties is described herein below.
6. The parties have been put in possession of their respective properties as shown in schedules A to C to this petition and they are entitled to continue in possession and enjoy the same as absolute owners without any let or hindrance.
7. The parties to this compromise petition have agreed that the 10 guntas of land allotted to first respondent inSy.No.60/6 of Goravanahalli village, Kasaba Hobli, Maddur Taluk has been now assigned with new survey number as 60/5. However, Katha in respect of both numbers namely Sy.No.60/6 and 60/5 entered in the name of Pushpavathi wife of late Doddmuthaiah. The appellants have agreed to give their no objection to enter the Katha of the first respondent in respect of 10 guntas of land in Sy.No.60/5 and to cancel the entry in respect of land bearing Sy.No.60/6 by approaching competent revenue authorities.
8. Since, the parties to this compromise petition have been put in possession of their respective properties the first respondent agreed to withdraw the execution petition filed by her in ex.case No.84/2013 by producing the copy of the decree that would be drawn pursuant to the terms of this compromise petition.
9. The parties have agreed to bear their respective costs.
10. The parties have agreed that the sketch produced along with the compromise petition shall be the part of the decree that would be drawn based on the terms of this compromise petition.
11. The parties have agreed that the land in Sy.No.39/4A of Goravanahalli village is one of the properties subject matter of the dispute and the same has been correctly shown I the revenue records. However, while describing the said property it was wrongly shown as Sy.No.39/4B. Therefore, parties have agreed that the said survey number henceforth shall be read as Sy.No.39/4B instead of Sy.No.39/4A of Goravanahalli village.”
Wherefore, the appellants and respondent most respectfully pray that this Hon’ble court may kindly be pleased to allow the above appeal in terms of this compromise petition and the decree passed by the lower appellate court may be modified accordingly, in the interest of justsice.”
9. Placing the statements made in the compromise petition on record, the appeal is disposed of in terms of the compromise petition.
Sd/- JUDGE tsn*