IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD R.S.A.No.850 OF 2014(PAR) BETWEEN:
1. Dr.Vanitha Gowda, D/o C.Sonne Gowda, Aged about 47 years.
2. Sri.Vivek Gowda, S/o C.Sonne Gowda, Aged about 45 years.
3. Sri.Vikram Gowda, S/o C.Sonne Gowda, Aged about 43 years.
4. Dr.Vinutha Gowda, S/o C.Sonne Gowda, Aged about 40 years.
All are residing at 7616, Queens Ferry Lane, Dallas, Texas-75248, USA.
Rep. by GPA Holder and Mother Smt. Lalitha Gowda, W/o C.Sonne Gowda, Residing at No.114, Residency Road, 2nd Cross, Bangalore-560 025.
5. Sri.C.Sonne Gowda, S/o Late. Chowde Gowda, Aged about 78 years, Residing at No.114, Residency Road, 2nd Cross, Bangalore-560 025.
6. Smt. Vanajamma, W/o Channaraya Gowda, Aged about 62 years.
7. Smt. Chandrakala, D/o Channaraya Gowda, Aged about 42 years.
8. Sri. Mohan Gowda, S/o Channaraya Gowda, Aged about 34 years.
All are residents of , Chowdadenahalli, Narasapura Hobli-563133, Kolar Tq, Kolar. … Appellants (By Sri.A.Madhusudhan Rao., Advocate) AND:
1. Smt. Savitharamma, W/o Late. Byre Gowda, Aged about 68 years.
2. Sri.Krishna Byre Gowda, S/o Late Byre Gowda, Aged about 41 years.
3. Sri. Gopala Gowda, S/o Late.Byre Gowda, Aged about 39 years.
4. Smt. Manjula, D/o Late. Byre Gowda, Aged about 37 years.
5. Smt. Mangala, D/o Late. Byre Gowda, Aged about 35 years.
6. Sri.Chowde Gowda, S/o Late Byre Gowda, Aged about 33 years.
All are residing at, Garudapalya Village, Narasapura Hobli-563133, Kolar Tq, Kolar.
7. Smt. Shanthamma, W/o Chowda Reddy, Aged about 70 years, Residing at: Malapalli Chintamani Town-563125. ... Respondents (By Sri.C.S.Prasanna Kumar, Advocate for R1 to R6: Sri.M.Munegowda, Advocate for R7.) This RSA is filed under Section 100 of CPC., against the Judgment and Decree dated: 26.03.2014 passed in R.A.No.50/2013 on the file of the II Additional District and Sessions Judge, Kolar, allowing the appeal and setting aside the Judgment and decree dated: 16.02.2013 passed in OS.No.146(A)/2008 on the file of the C/C III Additional Senior Civil Judge and CJM, Kolar.
This RSA, coming on for orders, this day, this Court, delivered the following:
J U D G M E N T The learned counsel for the parties have filed a joint memo dated 27.08.2019 stating that this appeal may be disposed of in terms of the Memorandum of Settlement under Section 89 of the Code of Civil Procedure r/w. Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005 and also they further stated that in the memorandum of settlement submitted by the Mediation Centre, there are some typographical errors. Accordingly, the same has been corrected. In Schedule C and D, the name of the Village wherever it is mentioned as Chodadenahalli instead of Chowdadenahalli. In Schedule D, in Sl.No.1, Sy.No.67/07 shall be corrected as Sy.No.67/06. In schedule D in Sl.No.11, Sy.No.64/14 shall be corrected as Sy.No.64. They state that this appeal may be disposed of in terms of the Memorandum of Settlement filed before the Mediation Centre.
2. The appellant herein has filed a suit in O.S.No.146(A)/2008 for partition and separate possession before the III Addl. Civil Judge, (Sr.Dn.) and CJM, Kolar. The suit was decreed by a judgment and decree dated 16.02.2013. Being aggrieved by the same the defendants have filed an appeal before the II Additional District and Sessions Judge, Kolar in R.A.No.50/2013. The said regular appeal was allowed by judgment and decree dated 26.03.2014. Being aggrieved by the same, plaintiffs have filed this regular second appeal before this Court under Section 100 of Civil Procedure Code. The appeal was admitted on 05.07.2016 and the following substantial questions of law have been framed:
“1. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court, only on the ground that the suit filed by the plaintiff is barred by limitation in view of the provisions of Article 110 of the Limitation Act?
2. Whether the Lower Appellate Court is justified in recording a finding of fact that there is inequality in the partition effected on 24.09.2001 as per Ex.P2?
3. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court, when there is disparity in the division of joint family properties among the family members?
4. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the Trial Court in the facts and circumstances of the present case?”
3. Subsequently, by order dated 04.02.2019 the matter has been referred to Mediation Centre at the request of the parties. By letter dated 31.05.201, the Mediation Centre has sent the Memorandum of Settlement arrived at between the parties under Section 89 of the Code of Civil Procedure r/w. Rules 24 and 25 of the Rules. The parties are present before the Court. They have been identified by their respective counsel. The Memorandum of Settlement reads as hereunder:
“ The parties above named beg to submit as follows:
I. The appellants have filed the above Regular Second Appeal against the Judgment and decree dated:26.03.2014 passed by the Hon’ble II Addl. District & Sessions Judge, Kolar in R.A.No.50/2013 allowing the appeal and dismissing the suit bearing O.S.No.146(A)/2008 before the III Addl. Civil Judge, (Sr.Dn.) at Kolar.
During the mediation, Smt. Lalitha Gowda, GPA Holder for appellant Nos.1 to 4, appellant Nos.5 to 8 along with their advocates and respondent Nos.2 and 3 on behalf of all the respondents along with their advocates participated in the mediation. During the course of mediation, the parties have resolved their differences on the following terms:
1) All the Appellants named above admitting that the registered Partition deed dated:24.09.2001 (hereinafter called the ‘Partition Deed’) effected between the Appellants and Respondents as fair, equitable valid and legal, hereby withdraw all the allegations contained in the plaint questioning the legality and validity of the said Partition Deed.
2) The appellants No.1 to 5 and respondents Nos.1 to 6 accept the total extent of lands allotted to them in the Partition Deed dated 24.09.2001 but they have exchanged certain lands with each other that was allotted to their respective shares. Hence the schedules in the partition deed dated:24.09.2001 was re-worked and the lands now allotted to appellants 1 to 5 is shown in schedule B to this agreement and the lands allotted to respondents 1 to 6 shown in schedule A to this agreement.
3) Respondent No.7 namely Smt. Shanthamma, with an intention to amicably resolve the dispute amongst family members, do hereby unconditionally relinquish/release her entire share in the properties allotted to the share of herself and appellants 6 to 8 as per Schedule D to the partition deed dated 24.09.2001, in favour of the Appellant Nos. 6 to 8 herein and further grants liberty to appellant Nos.7 & 8 to apportion her share amongst themselves and their children with Appellant No.7 and her daughter taking one share and appellant No.8 and his children taking another share.
4) In view of the exchange and relinquishment as mentioned above and after detailed deliberations, the Appellants and the Respondents have mutually agreed to redo the schedules in the partition deed dated 24.09.2001 incorporating changes and the lands allotted to their respective shares as reflected in the schedules to this agreement.
5) The immovable Properties detailed in Schedule ‘A’ hereto are allotted jointly to the share of the Respondent No.1 to 6 namely [1] Smt. Savithramma w/o late Sri.C.Byregowda, [2] Sri.Krishna Byre Gowda S/o late Sri.C.Byregowda, [3] Sri. Gopal Byre Gowda S/o Sri. Late C. Byregowda, [4] Smt. Manjula Byregowda D/o late Sri. Byregowda, [5] Smt. Mangla Patil D/o Sri. late C.Byregowda and [6] Sri.Chowde Byre Gowda s/o late Sri. C.Byregowda.
6) The immovable Properties detailed in Schedule ‘B’ hereto are allotted jointly to the share of the Appellant Nos.1 to 5 namely [1] Sri.C.Sonne Gowda [2] Dr.Vanitha Gowda, [3] Sri.Vivek Gowda, [4] Sri.Vikram Gowda, [5] Smt. Vinutha Gowda;
7) The immovable Properties detailed in Schedule ‘C’ hereto are allotted jointly to the share of the Appellant No.6 & Appellant No.8 namely [1] Smt.Vanajamma w/o Late. Sri.Channarayegowda; and [2] Sri.Mohan s/o Late Sri. Channarayegowda.
8) The immovable Properties detailed in Schedule ‘D’ hereto are allotted solely to share of the Appellant No.7 namely Smt. Chandrakala d/o Late Sri. Channarayegowda.
9) In view of this amicable settlement, the parties shall hereafter be governed and bound by this Agreement and all the Parties shall henceforth be entitled to hold, own, possess and enjoy the Properties allotted to their respective shares without any disturbance, hindrance or claim from each other.
10) This Agreement was drawn up after mutual discussion between parties and this Agreement was sent on email to Appellants No.1 to 4 and the GPA holder has discussed and obtained confirmation of the terms of the agreement from appellant Nos.1 to 4.
11) The Appellants No.1 to 8 and Respondents No.1 to 7 admit and agree to get their lands mutated in their respective names and get their names entered into revenue records.
12) The Respondents No.1 to 6 admit and undertake to get the lands in schedule A and B to this agreement re-surveyed and affix boundaries and to prepare the survey sketch at their cost.
13) All parties admit and agree that they would get their respective share registered at the office of the Jurisdictional Sub Registrar at their costs.
14) All the parties to the above appeal state that they have no claim whatsoever over the Suit Schedule Properties other than the property that is allotted to their share under this Agreement.
15) All parties to the above appeal have agreed to the above settlement/arrangement to avoid any future litigation in respect of the property allotted to their respective shares. The parties further confirm and declare that they have executed this agreement both on their behalf and so also on behalf of all their legal heirs and representatives.
16) All the parties agreed that allotment of share as per this Agreement is a full and final and that they shall not have any future right over the properties allotted to others. The Parties further agree, undertake, declare and confirm they shall have absolute right and liberty to enjoy the properties allotted to them independently without any interference from other parties.
17) The parties are entitled to deal with the properties allotted to their share under this Agreement in any manner of their choice, which shall include right and liberty to alienate, gift, mortgage, release and even further partition amongst themselves the properties allotted jointly to them under this Agreement.
18) All parties to the above appeal further admit that their dispute is resolved fully without there being any undue influence, coercion from anybody.
19) All the appellants and respondents agree and admit that the respective parties are put in possession of the lands allotted to their respective share and therefore prays that a final decree may be drawn according to the terms of this agreement.
II. In view of the aforesaid Agreement entered into between the parties, this Hon’ble Court be pleased to modify the decree in O.S. No.146(A)/2008 before the III Addl. Civil Judge (Sr.Dn.) at Kolar, in terms of the aforesaid agreement and to pass appropriate orders accordingly.
III. In view of the aforesaid agreement, both the parties pray that the Court fee paid in the respective cases be ordered to be refunded.
Schedule ‘A’ hereto is allotted jointly to the share of the Respondent Nos.1 to 6 namely [1] Smt.Savithramma, [2] Sri. Krishna Byre Gowda, [3] Sri. Gopal Byre Gowda, [4] Smt. Manjula.B, [5] Smt. Mangala Patil, and [6] Sri.Chowde Byre Gowda.
Sl.
Schedule-A Sy No Village .
.No. Extent East West North South 1 Garuda palya 2 Garuda palya 1 6.20 Sy.No.61 Kurki border Kharab Sy.No.2 and 3 Gramatana 3
Garuda palya 4 Garuda palya 5 Garuda palya 6 Garuda palya 6 1.22 Sy.No.8 Chowdn a Halli Border Govt Land Canal, Kurki Border 7 Garuda palya 8 Garuda palya 9 Garuda palya 10 Garuda palya Sy.No.1 2
Sy.No.1 1 Sy.No.1 3 3
Sy.No.7 Sy.No.1 Land belongs Sy.No.5 Sy.No.4 Sy.No.9 Sy.No.8 11 Garuda palya to Chowda na Halli Sy.No.
Sy.No.1 4 Sy.No.11 and 12 12 Garuda palya 14 1.19 Tank Land belongs to Chowda na halli Sy.No.
Canal Sy.No.13 13 Garudapal ya 15 0.8 Sy.No.12, 13 and 14 Sy.No.7 Sy.No.7 Sy.No.12 14 Garuda palya 16 4.31 Sy.No.17 Land belongs to Chowda na Halli Sy.No.
Chowda nahalli Border Sy.No.14 and Tank
Garuda 15 palya Garuda 16 palya Sy.No.1 6 Sy.No.1 7 Chowda na halli Border Chowda na halli Border Tank Tank and Sy.No.20 Garuda 17 palya Sy.No.1 8 Chowda na halli Border Sy.No.21 and 22 18 Garuda palya Tank Sy.No.1 Sy.No.59 8 19 Garuda palya 20 Garuda palya
22 3.18 Sy.No.23 and 25 Sy.no.2 0 Sy.No.2 1 Sy.No.1 9 Sy.No.1 9 Sy.No.58 Sy.No.44
21 Garuda palya 22 Garuda palya 23 Garuda palya 24 Garuda palya 25 Garuda palya Sy.No.2 2 Sy.No.2 3 Sy.No.2 2 Sy.No.1 9 Sy.No.2 6 Sy.No.2 5 Sy.No.2 5 Sy.No.2 6 and 27 Chowda na halli Border Chowda na halli Border Sy.No.44 Sy.No.43 Sy.No.23 and 24 Sy.No.25 Sy.No.25 Garuda 26 palya 27 Garuda palya 28 Garuda palya Sy.No.4 6 Sy.No.4 6 Sy.No.4 6 Sy.No.4 Sy.No.38 0 1 Sy.No.4 Sy.No.39 Sy.No.4 Sy.No.40 2 Garuda 29 palya 30 Garudapal ya Garuda Sy.No.4 3
Sy.No.2 3 Sy.No.5 Sy.No.4 Sy.No.41 and 46 0 1 Sy.No.3 Sy.No.42 Sy.No.2 31 palya Garuda 8 Sy.No.5 3 and 22 Sy.No.4 Sy.No.45 32 palya Garuda 33 palya 34 Garuda palya 6 and 57 Tank, 45 and 47 Sy.No.5 5 and 56 4 Sy.No.46 and 47 Sy.No.4 Kurki Border 2 5 Sy.No.4 Tank 35 Garuda palya 36 Garuda palya 37 Garuda palya 38 Garuda palya Sy.No.5 0 Kurki Border Sy.No.5 1 Gramat ana Tank and 54 Gramat ana Sy.No.5 3 Sy.No.6 0 and 61 Kurki Border Sy.No.50 Sy.No.50 Sy.No.54 and 52 Garuda 39 palya Sy.No.5 2 Sy.No.5 Sy.No.49 3 40 Garuda palya 41 Garudapal ya 42 Garuda palya Sy.No.5 4 Sy.No.5 4 Sy.No.6 0 and Sy.No.5 6 Sy.No.5 7 Sy.No.5 8 and Tank Sy.No.55 Sy.No.56 53 59 43 Garuda palya 44 Garuda palya 45 Garuda palya 46 Garuda palya Sy.No.5 9 Tank Sy.No.6 1 Border Gramat ana and Sy.No.1 Sy.No.2 1 Tank and Sy.No.2 0 Sy.No.5 9 Sy.No.5 9 and Tank Sy.No.57 Sy.No.57,60,61 Sy.No.53 Sy.No.53 Garuda 47 palya
extent of Grama tana Sy.No. 53 and 61 Kurki Sy.No.1 Kurki land and Sy.No.51 SCHEDULE B Properties allotted jointly to the share of Appellant No.1 to 5 namely Sri.C.Sonne Gowda, Dr.Vanitha Gowda, Sri.Vivek Gowda, Sri. Vikram Gowda, Smt.Vinutha Gowda;
Sl.
Sy.
SCHEDULE-B No Village .
No. Extent East West North South
Garuda 4 palya Garuda 5 palya Garuda 6 palya Bommasa
Sy.No.3 1 Sy.No.2 5 and 24 Sy.No.3 2 Sy.No.2 Sy.No.33 9 8 0 Sy.No.2 Sy.No.32 and 43 Sy.No.3 Sy.No.34 7 Garuda palya 8 Garuda palya Garuda 43 0.2 Sy.No.32 Horakere Sy.No.4 3 Remaini ng Extent of Sy.No.4 3 Sy.No.4 Sy.No.3 1 Sy.No.3 1 Sy.No.3 Sy.No.34 Sy.No.42 9 palya 34 6.23 10 Garuda 42 1 palya Border Sy.No.32 and 34 2 and 41 Sy.No.4 6 and 44 2 Sy.No.35 Sy.No.4 Sy.No.41 3 11 Garuda palya 41 1.08 Sy.No.34 Sy.No.4 35 4.11 6 Sy.No.4 2 Sy.No.40 12 6 Garuda palya Horakere Border Sy.No.4 0 SY.No.3 4 Sy.No.36 13 Garuda palya 40 1.28 Sy.No.35 Sy.No.4 Sy.No.4 1 SY.No.39 14 Garuda palya 15 Garuda palya Chowdade 36 5.03 Horakere Border 37 5.15 Horakere Border Property belongs Sy.No.3 9 Sy.No.3 8 Property belongs Sy.No.3 5 Sy.No.3 6 Property belongs Sy.No.37 Kurki Border 16 nahalli 24/3 3.11 to Ramacha ndrappa to Sannaul la to Karimull a Road SCHEDULE ‘C’ Properties allotted jointly to the share of Appellant No.6 & Appellant No.8 namely Smt. Vanjamma and Sri. Mohan.
Sl.
Sy.
SCHEDULE-C No Village .
No. Extent East West North South Chodadena 1 halli 2 Chodadena halli Chodadena 8 4.2 38/10 0.03 Muniv enkata ppa Hosak ere Kattu Ganga Chikkav allabi Road Vadarra Narayan appa P.Muniy Venka tappa K.N.M univen katap pa Chand Land allotted to Chandrakala G.Venkataswamap pa 3 halli 64/20 0.12 ppa Shara appa rayap pa Venka Chandrayappa 4 Chodadena halli Chodadena 64/24 0.09 damm a Byrap E.Nagar aju talaks hmam ma Nanju E.Nagaraju 5 halli 76/4 0.08 pa Road ndapp a Pakar Narayanappa mma 6 Chodadena halli 83/1 0.15 Tank Own Property ahalli Krishn appa Old Well halli 7 Chodadena 83/2 0.12 Own proper ty Barial Ground Bacha Old Well 8 Chodadena halli 9 Chodadena halli 10 Chodadena halli Chodadena 92/5 0.34 C.Byre gowda 93/4 0.06 C.Prab u Hannura ppa Own Property Jayara mappa Muniy appa Chana rayap pa
Govt Canal Canal Chanrayappa mma 11 halli Canal C.Sonnegowda 12 Chodadena halli 146/3 0.38 Deva pa/thim maraya ppa C.Byra ppa R.Munegowda 13
Chikkavala bi 14 Chikkavala bi bi 15 Doddavalla 160 1.03 Chodadena gowda Naray anapp a Naray h Laxmaia Canal Tank B.Mun 16 halli 173 1.06 Doddavalla anapp a Malles Canal Raviku iyappa Canal Naray 17 bi 164/3 0.26 haiah mar Vekatap anapp a Canal 18 Chodadena Site 319 Halli Chikkavala 60x54(Half site or 50%) Road Own pa, Chinnap pa House Govt Land Sonne Arjundev and Venkateshappa Property 19 bi 22 1.13 proper ty Road gowda Road NOTE: Sy.No.18/2 schedules will be subject to fixing boundaries.
SCHEDULE’D’ Properties allotted to Appellant No.7 namely Smt. Chandrakala D/o late Sri. Channarayegowda.
Sl.
Sy.
SCHEDULE-D No Village .
No. Extent East West North South 1 Chodadena halli 67/07 0.11 Vem agal Roa d Shardam ma/Jayam ma N.Son nappa Pakarahalli Krishnappa 2 nna Chikkavalla bi 24/2 1.33 Son Own Property Own Proper Doddavallabi Road 3 Chikkavalla bi 24/3 2.37 site ppa /Kri shn app a Son nap pa Chik Own Property ty Najan na/So nnapp a N.Ram Road 4 Chodadena halli Chodadena No.13 6 site 26x50 kae nga ppa Own Own house akrish nappa Rama Road 5 halli 137 55x61 Hou se Own own house krishn appa Rama Road 6 Chodadena halli 7 Chodadena halli Chodadena Site 138 site 319 (50% half site on the south side) 19x53 Hou se d 60x54 Roa R.Kr ishn Road Venkatapp a, Chinnappa House Lashmidev krishn appa House Govt Land Lashm ideva Road Arjundev and Venkateshappa Property Lashmidevamma/C 8 halli 149/2 0.39 halli 9 Chodadena 149/3 0.05 halli 10 Chodadena 149/4 1 bi 11 Chikkavalla 64/14 1.12/1/2 app a Byr app a Byr app a Ban di Dari amma/Ch owdamma Lashmidev amma/Ch owdamma Own Property Tank mma/ Chowd amma Lashm ideva mma/ Chowd amma Own Proper me ty Dodda valabi Road howdamma Hakku Darri land/Thoppu Hakku Darri land/Thoppu Own Property 12 Chikkavalla bi 18/2* 2.24 Ra Own property C.Byre gowda Own Property 13 Chodadena halli 8 4.2 Gow da Mun iven kata ppa Chikkavall bi Road Remai ning Sy.No. allotte d to Mohan Krishnappa *NOTE:Sy/No.18/2 schedules will be subject to fixing boundaries.
4. In terms of the Memorandum of Settlement filed by the parties, this appeal is disposed of.
Office is directed to draw the decree in terms of the Memorandum of Settlement.
It is further clarified that in respect of the Schedule C and D properties are concerned, appellants 6 and 8 should get the property jointly surveyed and get the lands phoded.
Sd/- JUDGE Cm/-