IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL No.2095 of 2011 (PAR) BETWEEN:
1. NIRMALA, D/O. LATE DINESHGOWDA @ DINESH T.R., AGE: MINOR, REPRESENTED BY NATURAL MOTHER AND GUARDIAN, SMT. PUSHPALATHA W/O. LATE DINESHGOWDA, D/O. K.B. BOREGOWDA, R/O. KYATHANAHALLI VILLAGE, PANDAVAPURA TALUK, MYSORE – 570 001.
2. PUSHPALATHA, W/O. LATE DINESHGOWDA @ DINESH T.R., D/O. K.B. BOREGOWDA, AGED ABOUT 30 YEARS, RESIDENT OF KYATHANAHALLI VILLAGE, PANDAVAPURA TALUK, MYSORE – 570 001.
(BY SRI SUBRAMANYA R., ADVOCATE FOR ... APPELLANTS ASHOK HARANAHALLI ASSOCIATES, ADVOCATES) AND:
1. RADHAKRISHNA @ THAGADEGOWDA, AGED ABOUT 65 YEARS, RESIDENT OF 1204, 3RD CROSS, GANGE ROAD, KUVEMPUNAGARA, MYSORE – 570 023.
2. THAYAMMA, W/O. RADHAKRISHNA @ THAGADEGOWDA, AGED ABOUT 50 YEARS, RESIDENT OF 1204, 3RD CROSS, GANGE ROAD, KUVEMPUNAGARA, MYSORE – 570 023.
3. ARCHANA DINESH, W/O. LATE DINESHGOWDA @ DINESH T.R., AGED ABOUT 50 YEARS, RESIDING AT No.392/2, SHAKU NIVAS, GOKHALENAGAR ROAD, POONA – 411 016.
4. ANURATHI, D/O. LATE DINESHGOWDA @ DINESH T.R., AGED MINOR, RESIDING WITH NATURAL MOTHER & GUARDIAN SMT. ARCHANA DINESH, RESIDING AT No.392/2, SHAKU NIVAS, GOKHALENAGAR ROAD, POONA – 411 016.
5. HEMALATHA, W/O. VIJENDRA, AGED ABOUT 42 YEARS, RESIDENT OF 1079, NEAR VIDYAVARDHAKA SCHOOL, ALOKA NILAYA, LALITHADRI ROAD, KUVEMPUNAGAR, MYSORE – 570 023.
6. DR. JYOTHI, W/O. SRINIVAS, RESIDING AT 3003, 5TH CROSS, SURABHI NURSING HOME, K.R. ROAD, MANDYA – 571 607.
(BY SRI M. SHIVAMURTHY, ADVOCATE FOR ... RESPONDENTS JAYAKUMAR S. PATIL ASSOCIATES, ADVOCATES FOR R1, R2, R5 AND R6;
R3 & R4 - NOTICE HELD SUFFICIENT BY WAY OF PAPER PUBLICATION VIDE COURT ORDER DATED 01.04.2015) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 24/08/2011 PASSED IN O.S.No.148 Of 2002 ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES AND SENIOR CIVIL JUDGE, MYSORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is listed for final hearing.
2. Learned counsel for the respective parties submit in unison that during the pendency of this appeal the parties, namely the appellants and respondent Nos.1, 2, 5 and 6, have negotiated a settlement. They have prepared a compromise petition and seek disposal of this appeal by way of compromise and that the appellants agree for confirming the judgment and decree passed by the trial court.
3. Briefly stated, the plaintiffs in O.S.No.148/2002 have assailed dismissal of their suit by judgment and decree dated 24/08/2011 by the Principal Judge, Court of Small Causes and Senior Civil Judge, Mysore. The plaintiffs/appellants herein had filed the said suit seeking the relief of partition and separate possession in respect of the suit schedule properties. At this stage, it could be mentioned that O.S.No.148/2002 was clubbed with O.S.No.416/2006 arising out of P & SC No.21/2000, which was also disposed of by the common judgment dated 24/08/2011. However, this appeal pertains to dismissal of O.S.No.148/2002 only. As noted above, the plaintiffs in O.S.No.148/2002 have assailed the judgment and decree of the trial court in this appeal.
4. Learned counsel for the parties have filed a Memorandum of Compromise Petition under Order XXIII Rule 3 of Civil Procedure Code, 1908, (CPC).
5. The appellants and respondent Nos.1, 2, 5 and 6 are present. They have been identified by their respective counsel. They submit that in view of the compromise arrived at between the parties, it is unnecessary for respondent Nos.3 and 4 to be present or to be a party to the compromise, since the parties have agreed for confirmation of the judgment and decree of the trial court subject to respondent Nos.1, 2, 5 and 6 paying a sum of Rs.30,00,000/- to the appellants herein. Therefore, they submit that, even if respondent Nos.3 and 4 have not signed the compromise petition, it would not cause any prejudice to the said respondents.
6. The appellants claiming to be the second wife and daughter of late Dinesh Gowda had filed the suit seeking the relief of partition and separate possession. Respondent Nos.1 and 2 are the parents of late Dinesh Gowda. Respondent Nos.3 and 4 herein are the first wife and daughter respectively and respondent Nos.5 and 6 are the sisters of late Dinesh Gowda. When enquired by the Court, the appellants and respondent Nos.1, 2, 5 and 6 submitted that they have agreed to settle the dispute between them in an amicable manner. That the appellants have agreed for the judgment and decree of the trial court being confirmed subject to payment of Rs.30,00,000/- to appellant No.1. The appellants endorse the said statement made by the appellants. Respondent Nos.1, 2, 5 and 6 are paying a sum of Rs.30,00,000/- to appellant No.1 by way of Banker’s Cheque bearing No.547833 for a sum of Rs.30,00,000/- dated 17.06.2019 drawn on State Bank of India, Kuvempu Nagar Branch, Mysore. The said Banker’s Cheque is handed over by learned counsel for the aforesaid respondents to learned counsel for the appellants and the same is handed over to appellant No.1, who is now a major aged about 22 years who acknowledges receipt of the said cheque.
7. The memorandum of compromise petition is taken on record. It is noted that the same has been signed by the appellants and respondent Nos.1, 2, 5 and 6. Parties present herein submit that they have settled the disputes between them on their own free volition without there being coercion or undue influence from any side. The memorandum of compromise petition reads as under:
“ MEMORANDUM OF COMPROMISE PETITION UNDER ORDER 23 RULE 3 OF THE CODE OF CIVIL PROCEDURE The parties to the Appeal submit as follows-
1. The above Regular First Appeal is filed questioning the Judgment & Decree dated 24.08.2011 passed in O.S. No.148/2002 on the file of the Principal Judge, Small Causes & Senior Civil Judge, Mysore, wherein the Court Below has dismissed the Suit filed by the Appellants for partition and separate possession of 2/4th share in the Suit Schedule Properties.
2. The Parties to the above Appeal ie. Appellants and Respondents Nos.1, 2, 5 & 6 have decided to compromise and put a quietus to the dispute on the advice of their relatives & well- wishers, and accordingly, this Compromise Petition is being filed settling the dispute in the following terms-
a) The Respondents No.1 & 2 have agreed to pay Appellant No.1, a sum of Rs.30,00,000/- (Rupees Thirty Lakhs) by way of Demand Draft bearing No.547833 dated 17.06.2019 drawn on State Bank of India, Kuvempu Nagar Branch, Mysore, towards the full and final settlement of their respective claims.
b) The Appellants herein have agreed to withdraw the Criminal Case against Respondents No.1, 2, 5 & 6 filed in CC No.3423/2017, (PCR No.459/2017) pending on the file of the 1st Additional Civil Judge & JMFC at Mysore.
c) The Appellants and the Respondents No.1 & 2 herein have agreed that the Judgment & Decree passed in O.S. No.148/2002 & 416/2006 dated 24.08.2011 on the file of the Principal Judge, Small Causes, Senior Civil Judge at Mysore may be confirmed without any modification.
d) The Appellants have given up their right and claim over the Suit Schedule Properties upon receiving the aforementioned amount and they do not have any other claim either over the Suit Schedule Properties or against the Respondents except for the Judgment & Decree in O.S. No.416/2006 dated 24.08.2011.
e) As the above settlement is arrived at by the Parties out of Court, the Respondents No.1, 2, 5 & 6 herein have agreed that they also do not have any inter-se right and claim as against the Appellants herein.
WHEREFORE, it is prayed that this Hon’ble Court may be pleased to dispose of the above Appeal in terms of the Compromise entered into between the Parties and consequently the Judgment & Decree passed in O.S. No.148/2002 and 416/2006 on the file of the Principal Judge, Small Causes & Senior Civil Judge, Mysore may kindly be modified accordingly, in the interest of justice and equity.
Bengaluru Dated:17.07.2019 Sd/- Sd/-
Advocate for Appellants Nirmal Appellant No.1 Sd/- Pushpalatha Appellant No.2 Sd/- Sd/-
Advocate for Respondent Radhakrishna alias Nos.1, 2, 5 & 6 Thagadegowda Respondent No.1 Sd/- Thayamma Respondent No.2 Sd/- Hemalatha Respondent No.5 Sd/- Dr. Jyothi Respondent No.6”
8. On perusal of the same, we find that the said compromise arrived at between the parties is lawful and that there is no legal impediment to accept the same.
9. In the circumstances, the appeal is disposed of in terms of the settlement arrived at between the parties.
It is needless to observe that the impugned judgment and decree of the trial court is confirmed.
Office to draw up the final decree.
In view of disposal of the appeal, I.A.No.1/2013 stands disposed.
Sd/- JUDGE Sd/- JUDGE mv