IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1612 of 2014 (PAR) BETWEEN 1. SMT. RATHI, W/O. LATE SRI C.P. RAJESH, AGED ABOUT 37 YEARS, 2. KUM. KUSHI, D/O LATE SRI C.P. RAJESH, AGED ABOUT 10 YEARS, APPELLANT No.2 BEING MINOR, REPRESENTED BY HER NATURAL GUARDIAN AND MOTHER APPELLANT No.1, APPELLANTS No.1 AND 2 ARE RESIDING AT C.M. ROAD, NEAR SHANKARMUTT, K.R. NAGAR TOWN, K.R. NAGAR TALUK, MYSORE DISTRICT – 571 602.
(BY SRI V.R. BALARAJ, ADVOCATE) AND 1. SMT. C.P. SHANTHA, W/O. SRI H.N. YOGEGOWDA, AGED ABOUT 43 YEARS, ...APPELLANTS 2. SMT. C.P. SAVITHA D/O. LATE SRI C.B. PUTTASWAMY, AGED ABOUT 41 YEARS, BOTH ARE RESIDING AT No.EWS116, 3RD CROSS, 1ST STAGE, HEBBAL, MYSORE – 570 033.
(BY SMT. JAYALAKSHMI K.B., ADVOCATE for SRI V.M. PRASAD, ADVOCATE FOR R1 & R2.) … RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 21.06.2013 PASSED IN R.A.No.355 of 2012 ON THE FILE OF III ADDITIONAL DISTRICT JUDGE, MYSORE, ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 09.08.2012 PASSED IN OS.No.303 of 2007 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., K.R. NAGAR.
THIS REGULAR SECOND APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Both the appellants and the respondents are present along with their respective counsel.
2. The memorandum of settlement is received from the Bangalore Mediation Centre (BMC) stating that the dispute between the parties has been settled vide report of the BMC dated 04.04.2019.
3. Heard learned counsel for the appellants and the respondents and perused the report of the BMC.
4. Learned counsel for the appellants also filed I.A.No.1/2019 under Order 32 Rule 7 of CPC whereby, appellant No.1 is seeking permission of this Court to compromise the case on behalf of minor appellant No.2- Kumari Kushi, aged about 14 years.
5. The suit was filed by the respondents before the Trial Court is for partition and separate possession of the suit schedule property and suit was decreed. Subsequently, the First Appellate Court modified the decree. This regular second appeal is filed by the appellants being aggrieved by the judgment and decree passed by the First Appellate Court in RA No.355/2012 dated 21.06.2013. The Trial Court partly decreed the suit of the plaintiffs/respondents by granting 1/8th + 1/24th share each in the suit schedule properties. The First Appellate Court modified the decree of the trial Court in OS No.303/2007 by granting 1/3rd share in the suit schedule property to appellant No.1 as well as respondent Nos.1 and 2. Hence, the second appeal.
6. During the pendency of the appeal, the matter was referred to BMC for settlement. Accordingly, the report of the BMC is received. The parties have agreed to share the suit schedule properties consent in the presence of the mediators. The terms of the compromise before the BMC are as under:
“ The appellants and respondents are coparceners of Hindu Undivided Hindu Joint Family and the suit schedule properties are ancestral properties. The appellants have aggrieved by the judgment and decree in Regular Appeal No.355/2012.
The aforesaid appeal was referred to mediation. During the course of mediation, both the Appellants and Respondents have resolved their disputes and agreed to divide their properties mentioned herein to their shares:-
SCHEDULE ‘A’ (Share allotted to C.P. Shantha, Respondent No.1 and the Appellants Rathi and Kushi) A land bearing Sy.No.46/2, measuring 1 Acre 27 guntas situated at Adaguru Village, Harnahalli Hobli, Periyapattana Taluk, bounded on:
East by : Land belonging to C.K. Kalegowda West by : Government Road North by : Land belonging to Chikkegowda South by : Land belonging to Bhogigowda The Appellants and 1st respondent have divided 1 acre 27 guntas between them as the 1st respondent shall take share on 35 guntas and the appellant shall take share of 32 guntas.
Out of 1 Acre 27 guntas, 35 guntas is allotted to the share of C.P. Shantha the 1st respondent and bounded on:-
East by : Land belonging to C.K. Kalegowda West by : Government Road North by : Land belonging to Chikkegowda South by: Remaining portion allotted to the share of the appellants.
Out of 1 Acre 27 guntas, 32 guntas is allotted to the share of appellants and bounded on:-
East by : Land belonging to C.K. Kalegowda West by : Government Road North by: Remaining portion allotted to the share of the C.P. Shantha South by: Land belonging to Bhogigowda.
SCHEDULE ‘B’ (Share allotted to C.P. Savitha, 2nd Respondent) RCC house measuring about 16 x 18 meters with vacant site bearing Junger No.297 comes within the jurisdiction of Chapparadahally Village, Grama Panchayath, Chapparadahalli, Periyapattana Taluk, bounded on:
East by : Road West by : Land belonging to Bhogigowda North by: House belonging to C.B. Annaiah South by: House belonging to C.S. Annegowda SCHEDULE ‘C’ (Share allotted to C.P. Shantha, Respondent No.1) A land bearing Sy.No.60/1, measuring 1 acre, situated at Ambalare Village, Harnahalli Hobli, Periyapattana Taluk, bounded on:
East by: Land belonging to Sanna Nanjegowda West by: Land belonging to C.B. Annegowda North by: Government pit South by: Land belonging to Gowramma SCHEDULE ‘D’ (Share allotted to C.P. Savitha Respondent No.2 And Appellants) A land bearing Sy.No.90/1, measuring 1 acre 2 guntas, situated at Chapparadahally Village, Haranahalli Hobli, Periyapattana Taluk, bounded on:
East by : Land belonging to C.A. Dharmesh West by : Land belonging to Hemavathi North by: Land belonging to Govindegowda South by: Land belonging to Govindegowda s/o Ningegowda Both the 2nd respondent and appellants shall share the 1 Acre 2 guntas among themselves as the 2nd respondent shall get a share of 22 guntas and the appellants shall have the share of 20 guntas.
Out of 1 Acre 2 guntas, 22 guntas is allotted to the share of C.P.Savitha the 2nd respondent and bounded on:-
East by : Land belonging to C.A. Dharmesh West by : Land belonging to Hemavathi North by: remaining portion allotted to appellant Rathi and Kushi South by: Land belonging to Govindegowda s/o Ningegowda.
Out of 1 Acre 2 guntas, 20 guntas is allotted to the share of appellants Rathi and Kushi and bounded on:-
East by : Land belonging to C.A. Dharmesh West by : Land belonging to Hemavathi North by: Land belonging to Govindegowda South by: remaining portion allotted to C.P.Savitha Both respondent No.2 C.P. Savitha and appellants have agreed to form a common road for both of them measuring 8 feet towards the western side of the above properties.
SCHEDULE ‘E’ (Share allotted to C.P. Savitha, 2nd Respondent and Appellants) RCC house measuring about 40 x 100 feet with vacant site bearing property No.1238/1152, comes within the jurisdiction of K.R. Nagar Town Panchayath, bounded on:
East by : Cross Road coming from Chandramouleshwara Road, entering into Arkanatha Road.
West by : House belonging B.V. Narayan North by: Galli South by: Chandramouleshwara Road The said property consist of a build house in 40 x 50 site and vacant land of 40 x 50. The house which is build in 40 x 50 is allotted to the appellants and the vacant site is allotted to the 2nd respondent C.P. Savitha.
House measuring 40 x 50 (to the share of the appellants) bounded by East by:Road, West by:House of B.V. Narayan, North by: part of the site given to C.P. Savitha and South by: Road.
Site measuring 40 x 50 (to the share of the 2nd respondent) bounded by East by: Road, West by: House of B V Narayan, North by:part of the site given to C.P. Savitha and South by:Road.
Site measuring 40 x 50 (to the share of the 2nd respondent) bounded by East by: Road, West by: House of B V Narayan, North by: Conservancy and South by: Remaining part of the house with vacant set backs.
SCHEDULE ‘F’ (Share allotted to C.P. Savitha Respondent No.2) A land bearing Sy.No.5/2, measuring 33 guntas, situated at Chapparadahally Village, Grama Panchayath, Haranahalli Hobli, Chapparadahalli, Periyapattana Taluk, bounded on:
East by : Land belonging to C.A. Dharmesh West by : Land belonging to Hemavathi North by: Land belonging to Sarojamma South by: Land belonging to Sanna Hanumegowda 4. An execution case is filed by the respondent in Execution No.27/2017 arising out of FDP No.8/2013 pending before Senior Civil Judge, K.R. Nagara. In view of this settlement the respondents agree that they shall withdraw the said case.
5. Both the parties have agreed to the above said terms and have not objection whatsoever against each other for this Hon’ble Court to pass necessary orders.
II. In view of the aforesaid agreement entered into between the parties, this Hon’ble Court by pleased to pass necessary orders in the interest of justice and equity in terms of the aforesaid agreement and draw decree accordingly.
III. In view of the aforesaid agreement, the both the parties pray that the court fee paid in the respective cases be ordered to be refunded.”
7. The appellants and the respondents are the persons belonging to Hindu Undivided Joint family and the suit schedule properties are ancestral properties. The parties have resolved their dispute and agreed to divide the properties as per the terms of the settlement.
8. The terms of the compromise were read over the parties and the parties have agreed to the terms of the settlement before the BMC. There is no legal embargo for accepting the compromise. Accordingly the report of the BMC is accepted. The appeal is disposed of in terms of the Mediation Settlement. The mediation report shall form part of the decree.
Draw-up the decree accordingly.
Sd/- JUDGE mv