IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.801/2014 (DEC- INJ) BETWEEN:
Sri.G.R.Vijayananda, S/o late Sri.G.K.Rajeashekar, Aged about 56 years, R/o #3714/143, XIII Main, MCC-A Block, Davanagere – 577 001.
... Appellant (By Sri.Mahammed Tahir, Advocate for Sri.Varun J Patil, Advocate) AND:
1. Karthik D Aradhya, S/o late R.Dayananda, Aged about 28 years, R/o 1499/38, 1st Cross, Siddaveerappa Layout, Davanagere – 577 002.
2. Dr.Ramesh S Desai, S/o Shivanagouda Desai, Aged about 69 years, X-ray Clinic, #474/1B, 6th Main, P.J.Extension, Davanagere – 577 003.
3. Somanagowda Patil, S/o Gangana Gouda, Aged about 50 years, C/o Shiva Medicals, Near St.Paul’s Convent, P.J.Extension, Davanagere – 577 003.
4. Dr.Somashekar S., S/o Nagappa, Aged about 47 years, R/o No.4347, 5th Main, S.S-B Block, Davanagere – 577 003.
... Respondents (By Sri.P.Chandrashekar, Advocate for R1; Sri.M.D.Panigatti, Advocate for R3;
R4 served;
Appeal stands dismissed as against R2) This Regular Second Appeal is filed under Section 100 of CPC., against the Judgment and Decree dated 01.03.2014 passed in R.A.No.94/2010 on the file of the II Additional District and Sessions Judge, Davanagere, dismissing the appeal and confirming the Judgment and Decree dated 13.09.2010 in O.S.No.223/2006 on the file of the II Additional Senior Civil Judge, Davanagere.
This Regular Second Appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT This appeal is filed by the appellant, who is defendant No.4 in O.S.No.223/2006 assailing the judgment and decree passed by the II Additional Senior Civil Judge, Davanagere, having decreed the suit, the same was upheld by the II Additional District and Sessions Judge, Davanagere in R.A.No.94/2010 dated 01.03.2014.
2. During the pendency of this appeal, the appellant and 1st respondent has filed I.A.No.1/2019 under Order XXIII Rule 3 of Code of Civil Procedure (hereinafter referred to as ‘CPC’ for short) for compromising the dispute among them.
3. Both the appellant as well as respondent No.1 is present before this Court along with their respective counsel. Both the appellant and respondent No.1 admit the contents of the compromise entered into between them in the application. They have also produced the sketch along with the compromise application for having shared the suit schedule property equally. Both appellant and respondent No.1 submit that they have given their consent and admit the contents of the compromise. The terms of compromise entered into between parties are as under:
“9. As per the terms of the compromise, the Appellant/Fourth Defendant would be the owner of item No.1 and 3 (474/1A and 474/1B) delineated more specifically as C D E F in the sketch appended to the Compromise Petition. The Plaintiff/First Respondent would be owner of item No.2 Property bearing No (474/2) delineated more specifically as A B C D in the sketch appended to the Compromise Petition. The description of which is narrated below.
SCHEDULE PROPERTY ALLOTTED TO THE APPELLANT SRI.G.R.VIJAYANANDA Premises bearing D No.474/1A (also mentioned as 474/1 in the Davanagere Municipal Corporation Records) and 474/1B, measuring East to West 38 Feet North to South 30 feet situated at 6th Main, P J Extension, Davanagere, bounded on:
East by : 6th Main Road West by : Property of Jayanna North by : Property bearing D No.474/2 (presently allotted to plaintiff/first respondent) South by : 7th Cross Road PROPERTY ALLOTTED TO KARTHIK D. ARADHYA PLAINTIFF/RESPONDENT NO.1 House bearing Door No.474/2, measuring East to West 38 Feet North to South 30 feet situated at 6th Main, 7th Cross P J Extension, Davanagere, bounded on:
East by : 6th Main Road West by : House of Jayanna North by : House bearing Door No.474/3 South by : House bearing Door No.474/1A and 474/1B allotted in the settlement to the appellant.
10. Both the parties further submit the properties to the compromise is bifurcated by a common wall (mentioned as C D in the sketch) 11. Both the parties have agreed that since the suit schedule property is in a dilapidated condition and needs demolition, in the event it is demolished by either of the parties, both the parties have agreed to put up separate wall for the better enjoyment of their shares and harmonious future.
12. In view of the compromise entered into between the Appellant and the first respondent, the Plaintiff/Respondent No.1 would hence force recognize that the 4th Defendant/Appellant is absolute owner of item No.1 (474/1B) and Item No.3 (474/1A) of the Suit Schedule Property, likewise the 4th Defendant/Appellant would recognize that the Plaintiff/Respondent No.1 is the absolute owner of item No.2 (474/2) of the Suit Schedule Property.
13. Both the parties have no objection for the Katha pertaining to Item No.1 and 3(474/1 A and 1B) to be changed in the name of Appellant/4th Defendant and Item No.2 (474/2) to be changed in the name of Plaintiff/Respondent No.1.
14. Both the parties further submit that, the Key pertaining to 474/1 A is deposited by the 3rd Respondent Somashekar before the Trial Court. The key pertaining to 474/1 B is handed over by Ramesh Desai to the Plaintiff Karthik D Aradhya, The key pertaining to 474/2 occupied by Somanagowda Patil is deposited by him before the Trial Court. In view of the compromise Sri. Karthik undertakes to hand over the keys pertaining to 474/1 B to the Appellant his uncle Vijayananda/Appellant. Further both the parties undertake to produce the Compromise Petition and the order passed by the Honourable High Court on the Compromise Petition before the Trial Court and secure the keys of their respective Schedule properties.
15. Both the parties further undertake that the Appellant/4th Defendant would make necessary applications before the Trial Court to withdraw the rents pertaining to item No.1 and 3 of the Suit Schedule Property (474/1 A and 474/1 B) and the Plaintiff/1st Respondent be permitted to withdraw the rents pertaining to item No.2 (474/2) of the schedule premises.”
4. Both the appellant and respondent No.1 further submit that appellant is the uncle of the plaintiff/respondent No.1. The appellant claims right over the schedule property by the sale deeds dated 13.11.1997 and 17.11.1997 from his mother Neelambika, whereas respondent No.1 claims right over the schedule property by Registered will dated 17.03.2004 from the grandmother, Neelambika. In view of the compromise entered into between the appellant and respondent No.1, the parties have voluntarily entered into between the agreement by their own volition without there being any inducement, threat between any of the parties. Both have given consent to the terms of the compromise agreement, there is no legal bar for accepting the compromise.
5. In view of the compromise entered into between the parties, the plaintiff waived off his right of 50% of the property to the defendant No.4 in original suit No.223/2006. Judgment and decree passed by the trial Court and confirmed by the appellate Court is modified in terms of the compromise.
Accordingly, appeal is disposed of in terms of the compromise entered into between the parties, the appeal against respondents No.2 to 4 is hereby dismissed.
Keep the compromise and sketch as part and parcel of the decree.
Draw decree accordingly.
Sd/- JUDGE Mds/-