IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1550 of 2011 c/w REGULAR SECOND APPEAL No.2579 of 2011 (DEC/INJ) IN RSA No.1550 of 2011 BETWEEN 1. SADGUNA, S/O LATE SHETTAPPA, AGED ABOUT 36 YEARS, 2. BASAVAKUMAR, S/O LATE SHETTAPPA, AGED ABOUT 34 YEARS, BOTH ARE RESIDING AT KALLANAKERE VILLAGE, DAWARANAHALLI POST, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT – 572 101.
...APPELLANTS (BY SRI S.N. BHAT, ADVOCATE) AND 1. GOWRAMMA, W/O. B. SHADAKSHARAIH, AGED ABOUT 56 YEARS, 2. PARVATHAMMA, W/O. LATE SHETTAPPA, AGED ABOUT 55 YEARS, BOTH ARE RESIDING AT KALLANAKERE VILLAGE, DAWARANAHALLI POST, KASABA HOBLI, TURUVEKRE TALUK, TUMKUR DISTRICT – 572 101.
… RESPONDENTS (BY SRI B.N. PUTTALINGAIAH, ADVOCATE for R1; SRI S.S. PARIKSHIT, ADVOCATE FOR R2.) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 08.04.2011 PASSED IN R.A.No.50 of 2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, TIPTUR, DISMISSING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 21.01.2008 PASSED IN O.S.No.90 of 2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC., TURUVEKERE.
IN RSA No.2579 of 2011 BETWEEN 1. SADGUNA, S/O LATE SHETTAPPA @ SHETTY GOWDA, AGED ABOUT 36 YEARS, 2. SRI BASAVAKUMAR, S/O LATE SHETTAPPA @ SHETTY GOWDA, AGED ABOUT 34 YEARS, BOTH ARE RESIDING AT KALLANAKERE VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT.
...APPELLANTS (BY SRI S.N. BHAT, ADVOCATE) AND 1. B. SHADAKSHARAIAH, S/O LATE BASAVAIAH, AGED ABOUT 64 YEARS, RESIDING AT KALLANAKERE VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT.
2. SMT. PARVATHAMMA, W/O. LATE SHETTAPPA @ SHETTIGOWDA, AGED ABOUT 60 YEARS, RESIDING AT KALLANAKERE VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMKUR DISTRICT.
… RESPONDENTS (BY SRI B.N. PUTTALINGAIAH, ADVOCATE for R1; SRI S.S. PARIKSHIT, ADVOCATE FOR R2.) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 01.07.2011 PASSED IN R.A.No.228 of 2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, TIPTUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 23.07.2008 PASSED IN O.S.No.83 of 2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC., TURUVEKERE.
THESE REGULAR SECOND APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Since common questions of law and facts are involved in these appeals, they are taken up together and disposed of by the common judgment.
2. The appellants/defendant Nos.2 and 3 have filed RSA No.1550/2011 assailing the judgment and decree passed in OS No.90/2006 by the Civil Judge (Sr.Dn.) and JMFC, Turuvekere, (hereinafter referred to as ‘Trial Court’) dated 21.01.2008 and the judgment and decree passed by the Fast Track Court, Tiptur, (hereinafter referred to as ‘First Appellate Court’) in RA No.50/2008, dated 08.04.2011.
Whereas, RSA No.2579/2011 is filed by the same appellants challenging the judgment and decree passed by the Civil Judge (Sr.Dn.,) & JMFC, Turuvekere, (hereinafter referred to as ‘Trial Court’) in OS No.83/2007 (old No.93/2004), dated 23.07.2008, which was reversed by the Fast Track Court, Tiptur, (hereinafter referred to as ‘First Appellate Court’) in RA No.228/2008 by judgment dated 01.07.2011.
3. Heard the argument of learned counsel for both the parties.
4. The status of the parties before the Trial Court is retained for the sake of convenience.
5. Respondent No.1-Gowramma in RSA No.1550/2011 filed a suit in OS No.90/2006 seeking for a declaration to declare herself as the owner of the property and to cancel the compromise decree passed in OS No.169/2003. Whereas, the plaintiff, who is none other than the husband of the plaintiff in OS No.90/2006, also filed a suit in O.S.No.83/2007 for declaration that he is the owner of the suit schedule property item Nos.1 to 4 and to set aside the compromise decree passed in OS No.169/2003.
6. The facts of the case of the plaintiffs in both the suits are that, the plaintiff-Shadaksharaiah in OS No.83/2007 had purchased the suit schedule properties in both the suits i.e. item No.1 in OS No.90/2006 and item Nos.1 to 4 in OS No.83/2007 from Shettappa, the husband of defendant No.1 and father of defendant Nos.2 and 3 under the under the sale deed dated 28.11.1970 for a valuable consideration and the plaintiff was in possession and enjoyment of the suit schedule property. Subsequent to the purchase, some difference arose between the husband and wife i.e. plaintiffs in both the suits and in view of the compromise between them, the plaintiff-Shadaksharaiah relinquished the right over the land in Sy.No.65/5b measuring 1 acre 24 guntas in favour of his wife Gowramma, the plaintiff in OS No.90/2006 towards her maintenance. Thereby, she became the owner of the land in the said survey number and both the plaintiffs are in possession and enjoyment of the suit schedule properties respectively. Defendant Nos.2 and 3 filed a suit in OS No.169/2003 against their mother Parvathamma, who is defendant No.1 for partition and separate possession of five items of the suit schedule properties and after appearance of their mother in the said suit, they entered into a compromise by filing compromise petition under Order 23 Rule 3 of CPC and compromised the suit as partitioned vide decree dated 20.03.2004. Subsequently, after the knowledge of the compromise decree between the children and the wife of Shettappa, the plaintiffs filed their respective suit before the Trial Court contending that the defendants filed a collusion suit and obtained fraudulent decree, therefore, prayed for declaring them as the owners of the suit schedule properties and to set aside the compromise decree. Pursuant to the notice, the defendants appeared before the Trial Court and filed their written statement denying the averments made by the plaintiffs and contended that they became the owners of the property after the death of Shettappa. Therefore, they filed the suit for partition and separate possession and obtained decree and prayed for dismissal of the suit of the plaintiffs.
7. Based upon the rival pleadings, the Trial Court framed the following issues in OS No.90/2006, which are as follows:
“1. Whether the plaintiff proves that her husband had purchased the suit schedule property during the year 1970?
2. Whether the plaintiff proves that the suit schedule property came to her share in an oral partition between herself and her husband?
3. Whether the plaintiff proves that she is in possession and enjoyment of suit schedule property?
4. Whether the plaintiff proves that defendants have obtained a fraudulent judgment and decree dated 20.03.2004?
5. Whether the plaintiff is entitled for reliefs claimed?
6. What order or decree?”
8. To substantiate the contention, the plaintiff- Gowramma in OS No.90/2006 examined herself as PW.1 and examined Shadakshariah as PW.2 and got marked 11 documents as per Exs.P.1 to P.11. On behalf of the defendants, DW.3-Basavakumar was examined as DW.1 and got marked six documents as per Exs.D.1 to D.6. After hearing the argument, the Trial Court answered issue Nos.1 to 5 in the affirmative and ultimately, decreed the suit holding that the plaintiff got right title over the suit schedule property and restrained the defendants from interfering with the peaceful possession and enjoyment of the property by the plaintiff.
9. Assailing the judgment and decree passed by the Trial Court, the defendants filed the appeal before the Fast Track Court, Tiptur in RA No.50/2008 and the First Appellate Court after hearing the argument confirmed the decree of the Trial Court by dismissing the appeal of the defendants. However, the First Appellate Court clarified the decree also for cancellation of the judgment and decree passed in OS No.169/2003, dated 20.03.2004. Assailing the judgment of both the Court below, the defendants filed the second appeal in RSA No.1550/2011.
10. In OS No. 83/2007, the defendants have taken similar contentions as taken in OS No.90/2006 and prayed for dismissal of the suit.
11. In order to substantiate the contention, the plaintiff- Shadakshariah got himself examined as PW.1 and got marked nine documents as per Exs.P.1 to P.9. On behalf of the defendants, defendant No.3 was examined as DW.1 and examined another witness as DW.2 and got marked 17 documents as per Exs.D.1 and D.17. After considering the rival pleadings, framed the following issues;
“ 1. Whether the plaintiff proves that he is the owner of the suit schedule properties?
2. Whether the plaintiff proves that the defendants have obtained judgment and decree dated 20.03.2004 in OS 169/03 by colluding with each other and by suppressing real facts?
3. Whether the plaintiff proves that he is in possession and enjoyment of the schedule properties?
4. Whether the plaintiff is entitled for the reliefs claimed?
5. What order or decree?”
12. After hearing the argument, the Trial Court answered issue Nos.1 to 4 in the negative against the plaintiff and dismissed the suit. Assailing the judgment of the Trial Court, the plaintiff filed the appeal before the Fast Track Court, Tiptur in RA No.228/2008 and the First Appellate Court after formulating points for consideration, answered the points in favour of the plaintiff and ultimately allowed the appeal and decreed the suit vide judgment dated 01.07.2011. Assailing the same, the defendants filed appeal in RSA No.2517/2011.
13. Learned counsel appearing for the appellants/ defendants in both the case strenuously argued that the First Appellate Court committed error in declaring the respondents as owners of the suit schedule properties and granting injunction against both the appellant. Even though the compromise decree cannot be challenged by way of filing a separate suit, but in both the cases, the Court below allowed the plaintiffs to file a separate suit assailing the judgment and compromise decree, even though there was compromise petition filed under Order 23 Rule 3 of CPC. Learned counsel for both the appellant contended that though this question of law was not raised either before the First Appellate Court or before the Trial Court, but the bar for separate suit is the question of law raised in these appeals. Therefore, prayed for allowing the appeals by setting aside the judgment of the First Appellate Court and also dismiss the suit. Learned counsel also relied upon the judgment of this Court in the case of Kasturevva Hemappa Basureddy v. Smt. Jayashree w/o Late Basavareddy Basureddy reported in AIR 2015 Kar. 190 and another judgment of the High Court of Judicature at Madras in the case of P. Chinnaraj @ P. Rajan vs. C.Ramasamy and others reported in C.R.P.(NPD) No.2375/2014 and M.P.No.1 of 2014.
14. Per contra, learned counsel for the respondents supported the judgment of the First Appellate Court and contended that the bar under Order 23 Rule 3A of CPC is applicable to the case, where the parties to the suit have compromised the dispute and they cannot file a separate suit for challenging the compromise decree in view of the bar under Order 23 Rule 3A of CPC, whereas plaintiffs are the third parties and are not parties to the suit in OS No.169/2003. Therefore, there is no bar to file a separate suit for challenging the decree.
15. Learned counsel for the respondents contended on the merits of the case that the suit schedule property has been purchased by the respondents from Shettappa, the father of defendant Nos.2 and 3 and husband of defendant No.1 on 28.11.1970, prior to the marriage of Parvathamma with the Shettappa and the defendants were born subsequent to the sale deed effected by their father Shettappa. Therefore, the sale deed of their father was not at all challenged. Such being the case, they filed a collusion suit before the Court in OS No.169/2003 and application for compromise. Both the Courts rightly set aside the compromise as unlawful. Therefore, prayed for dismissing the appeal.
16. Upon hearing the argument of learned counsel for both parties, the substantial question of law involved in both the appeals is as follows;
i) Whether the suits filed by plaintiffs in OS No.90/2006 and OS No.83/2007 (OS No.93/2004) are barred under Order 23 Rule 3A of CPC?
17. The appellants raised substantial question of law while filing the appeal in respect of non-production of the documents by the plaintiffs in the suit and decreeing of the suit, but after hearing the argument, with the consent of learned counsel, the above said substantial question of law is framed by this Court.
18. On perusal of the record, it is not in dispute that the suit schedule properties in both the cases have been purchased by the Shadaksharaiah the plaintiff in OS No.83/2007 from Shettappa the father of defendant Nos.2 and 3 and husband of defendant No.1 under the sale deed dated 28.11.1990. It is argued that Shettappa married Parvathamma after the death of his first wife and defendant Nos.2 and 3 were born subsequent to the sale deed dated 28.11.1970. It is also an admitted fact that defendant Nos.2 and 3 filed OS No.169/2003 against their mother Parvathamma and after the appearance of their mother in the said suit, they filed an application under Order 23 Rule 3 of CPC and entered into the compromise and got partitioned the properties thereby, the suit came to be compromised and decreed on 20.03.2004. The case of the plaintiffs Shadaksharaiah and Gowramma was that due to some family dispute between the husband and wife, Shadaksharaiah gave a property measuring 1 acre 24 guntas in SY.No.65/5b to his wife Gowramma towards her maintenance thereby, she became the owner of the property and assailing the compromise decree, she filed the suit in OS No.90/2006. Likewise, in respect of the remaining property, Shadaksharaiah, the husband of Gowramma filed OS No.83/2007. The suit of Gowramma came to be decreed and the suit of Shadaksharaiah came to be dismissed only on the ground that the sale deed dated 28.11.1970 has not been filed. In fact, the said sale deed has been produced and marked as Ex.P.5 in OS No.90/2006 and in the appeal RA No.228/2008, the plaintiff filed the said sale deed by way of additional evidence under Order 41 Rule 27 of CPC. The same was allowed and the suit of the plaintiff Shadaksharaiah was also decreed by reversing the judgment of the Trial Court. The only question for consideration of this Court is whether separate suits filed by both the plaintiff by challenging the compromise decree passed in OS No.169/2003 are not sustainable in view of the bar under Section 23 Rule 3(A) of CPC. In this regard, learned counsel for the appellant relied upon the judgment of this Court in the case of Kasturevva Hemappa Basureddy (supra) wherein, it has been held as follows:
“Civil P.C. (5 of 1908), O. 23, Rr.3, 3A-
Constitution of India, Art.226 – compromise decree – Party disputing about awareness of contents of compromise and decree is alleged to be fraudulent – Validity/lawfulness of decree can be determined only by Court which passed decree – Writ petition assailing compromise decree not maintainable.”
19. In the said case, the compromise decree has been challenged by one of the parties by filing writ petition before this Court at Dharwad Bench. A co-ordinate Bench of this Court has held that in view of bar under Order 23 Rule 3A of CPC, a new suit is not maintainable and the parties are required to file an application in the same suit and the same was required to be decided by the same Court. Therefore, there is no second opinion in respect of the principle laid down by this Court in the above said case, but the fact in the above-said case is that one of the parties to the compromise decree filed writ petition on the ground that the signatures were obtained fraudulently and the compromise was unlawful. In the said judgment, this Court has not stated that the bar under Order 23 Rule 3A of CPC would apply to the person other than the parties to the compromise or the third party. However, the High Court of Judicature at Madras in C.R.P No.2375/2014 at paragraph 9 , has held as follows:
“ A plain reading of the above provision would make it clear that a person aggrieved by the compromise decree cannot maintain a separate suit on the ground that it was obtained by unlawful means. As rightly contended by the learned counsel for the 1st respondent, the provision does not make any distinction between the parties to the suit and the third party challenging the decree passed under Order XXIII Rule 3. Hence, I do not find any force in the contentions of the petitioners.”
20. The High Court of Judicature at Madras has held that the provision does not make any distinction between the parties to the suit and the third party challenging the decree passed under Order 23 Rule 3 of CPC. However, learned counsel for the respondents relied upon the judgment of this Court in the case of Shaik Shariff Uddin vs. Abdul Karim reported in LAWS (KAR) 2011 1 4. This Court after elaborately considering the various judgments of this Court and other High Courts has held that there is no bar for filing a separate suit for setting aside the compromise and the bar under Order 23 Rule 3A of CPC would not be applicable to the third parties, who are not the parties to the compromise decree. This Court in the case of Siddalingeshwar and others vs. Virupaxgouda and others reported in 2003 AIR Kar 407 at paragraph 14 has held as follows:
14. The said principle will equally apply to Order 23 Rules 3, 3A and 3B CPC, in so far as consent decrees are concerned. A consent decree in a representative suit will bar a subsequent suit challenging the compromise on which such consent decree was passed only if the compromise had been entered and consent decree is passed in accordance with the relevant Rules. A bar is imposed to challenge the compromise in a separate suit because a party to a compromise is entitled to challenge the compromise as not lawful, either by filing an application in the same suit or by filing an appeal under Order 43 Rule 1A. But such remedies are available only to the parties to the suit. A person who is not a party to the suit, cannot obviously file an application in the suit, or an appeal, to challenge a compromise as being not lawful. But in a representative suit, if the Court issues notices to persons interested in the suit ( who are not parties to the suit) and hears them before deciding whether leave should be granted to the parties to the suit to enter into a compromise/ agreement, then they would also in effect become parties to the suit and will be entitled to avail the remedies that are available to a party to the suit against a compromise or the consent decree, which is not lawful. In no notice is issued to the persons interested in a representative suit and as a consequence the consent decree is void under Rule 3B, then such persons ( who are not parties) will not be entitled to file an application in the suit or file an appeal under Order 43 Rule 1A. Therefore their right to bring a separate suit seeking appropriate remedy, remains unaffected. We therefore hold that if Rule 3B is not complied with, while passing a decree on a compromise in a representative suit, any person who is affected by such compromise decree, but not a party to it may file a separate suit seeking appropriate relief in regard to such compromise decree, by way of declaration or otherwise. He may also file a suit for appropriate relief ignoring the compromise decree and such a suit will not be barred either by the principle of res judicata or estoppel.
21. In another judgment, the Division Bench of this Court in the case of Smt. Lakshmamma and others vs. Sri T.H. Ramegowda and others reported in ILR 2015 4024 had elaborately discussed Order 23 Rule 3A of CPC wherein, in the said case, the suit has been filed to set aside the compromise decree as unlawful by filing a separate suit. The defendants in the suit raised objection that the suit is barred under Order 23 Rule 3A of CPC and filed an application under Order 7 Rule 11 of CPC, which came to be allowed by the Trial Court. The same was challenged before this Court and this Court after considering the provisions of Order 23 Rule 3A of CPC elaborately and set aside the rejection of plaint by the Trial Court on the ground of bar under Order 23 Rule 3A of CPC and remanded the matter for trial.
22. In the said case, the Court has held that a separate suit is not maintainable as the plaintiff was the party to the compromise decree and directed the plaintiff to approach the same Court to work out remedies. The very fact of the case itself goes to show that after the compromise decree the suit has been filed by one of the parties on the ground of fraud and mis-representation was practiced on them while obtaining signature on the compromise decree.
23. On perusal of the judgment of this Court, it is clear that the parties to the compromise suit cannot challenge the compromise decree on the ground that it was fraud or unlawful by filing a separate suit in view of bar under Order 23 Rule 3A of CPC. However, there is no bar for filing a separate suit for cancellation of the compromise decree by the third party who was not party to the compromise decree. The same was upheld by this Court in the case of Lakshmamma (supra). In the case of P.Chinnaraj (supra), the observation that there is no distinction between the parties to the suit and the third party to the suit under the Order 23 Rule 3A is distinguished in view of the judgment of the Division Bench of this Court and it is not applicable to the case of the appellants herein. Therefore, the suits filed by the plaintiffs who are third parties to the suit in OS.No.169/2003 by challenging the compromise decree between defendant Nos.2 and 3 is not barred under Order 23 Rule 3A of CPC. Accordingly, the substantial question of law is answered in favour of the respondents and against the appellants.
24. In view of the observations made by this Court, the question of looking into the merits of the case does not arise. The Trial Court after considering the evidence on record and in view of the sale deed executed long back prior to the marriage of Parvathamma with Shettappa and prior to the birth of the defendants and therefore, without cancelling the sale deed of the father by filing a declaratory suit and obtained a compromise decree which is nothing but a fraudulent and collusive decree among the defendants. Both the Court below rightly set aside the said compromise decree in OS No.169/2003 dated 20.03.2004. The appeals being devoid of merits are liable to be dismissed.
25. Accordingly, both the appeal filed by the defendants are dismissed. All pending IAs stand disposed of.
SD/- JUDGE mv