IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV REGULAR SECOND APPEAL NO.980/2015 Between:
1. Sri Honnagangaiah S/o Honnaiah Aged about 73 years 2. Sri H. Shivakumara S/o Honnaiah Aged about 58 years 3. Sri Nataraja S/o Honnagangaiah Aged about 53 years 4. Sri Satisha S/o Honnagangaiah Aged about 39 years 5. Sri Pramodu S/o Honnagangaiah Aged about 39 years All are residing at Honnudike Village Gulur Hobli, Tumkur Taluk – 572 122.
… Appellants (By Sri Manjunatha Pattanashetty, Advocate) And:
Sri H. Gangadharaiah @ Gangadharappa S/o. Honnaiah Aged about 68 years Agriculturist Residing at Honnudike Village Gulur Hobli Tumkur Taluk & Dist – 572 122. … Respondent (Sri S.C. Vija Kumar, Advocate ) This RSA is filed under section 100 of CPC against the judgment and decree dated 28.01.2015 passed in R.A. No.327/2005 on the file of Presiding Officer, Fast Track Court, Tumkur, dismissing the appeal and confirming the judgment and decree dated 07.07.2000 passed in O.S.No.47/1986 on the file of the Principal Civil Judge (Jr.Dn) and JMFC., Tumkur.
This RSA coming on for Admission this day, the Court delivered the following:
JUDGMENT Defendant Nos.1 to 5 have filed the present appeal challenging the judgment and decree passed in O.S.No.47/1986 which was subsequently confirmed in RA No.327/2005. It is to be noted that the judgment in RA No.327/2005 came to be passed after the matter was taken up in appeal on an earlier occasion in RSA No.1583/2006 and the matter was remanded for fresh consideration.
2. The plaintiff had filed the suit for declaration and injunction with respect to an extent of 30 guntas on the western side of Sy.No.33 of Anupanahalli Village, Gulur Hobli, Tumkur Taluk. It is the claim of the plaintiff that the suit schedule property had fallen to his share by virtue of compromise entered into in O.S.No.97/1975 between the plaintiff and defendants and other members of the joint family. It is contended that despite the compromise entered into in O.S.No.97/1975 and suit schedule property being allotted to the plaintiff, there was interference in the enjoyment of the property occasioning filing of the present suit. The defendants on the other hand would contend that the defendants were not represented by an advocate in the compromise proceedings and fraud was played on the defendants resulting in entering into the compromise. The trial Court has decreed the suit while noticing the fact that the compromise in O.S.No.97/1975 was not challenged by the defendants and say of defendants that fraud had been played could not be accepted. RA No.327/2005 was filed against the judgment and decree in OS No.47/1986, which has also been dismissed.
3. It is relevant to note that on an earlier occasion, the appeal filed against the judgment in OS No.47/1986 was challenged in RSA No.1583/2006 and the matter was remanded back to the appellate Court for fresh consideration. The appellate Court has also confirmed the judgment and decree and has held that the defendants not having challenged the compromise, the contention that fraud has been played was not proved and that the defendants were not represented by an advocate are not sufficient reason for accepting the defence taken by the defendants.
4. In the present appeal, it is contended that there was an earlier settlement deed which in fact was a partition which was entered into between the parties on 27.09.1963 and as per the settlement deed, the defendants were entitled to the suit schedule property. It is further contended that there was a discrepancy with respect to the description of the extent of property as described in item No.6 of the plaint and the description as found in the compromise petition. It is contended that in the plaint, the property in Sy.No.33 shown 10 guntas as dry land and 1 acre 26 guntas as wet land, while the compromise decree makes a reference to 30 guntas on the western side of Sy.No.33. It is however to be noted that the defendants claim that the relief of injunction cannot be granted in spite of relief of declaration on the ground of ambiguity in description of property. It is to be noted that on an earlier occasion, the final decree proceedings initiated to execute compromise reflecting the settlement entered into in OS No.97/1975 had been dismissed and the dismissal of the final decree proceedings was taken up before this Court in CRP No.1434/2018 (Ex.P8) and this Court while upholding the order of dismissal of final decree proceedings has observed that the compromise earlier entered into was sufficient insofar as the description of the properties is concerned and hence there is no necessity for final decree proceedings to be initiated or continued. It was further held that there was no necessity for referring the matter to the Deputy Commissioner to effect division of properties under Section 54 of Civil Procedure Code. It is also to be noted that where the Court has come to a conclusion that no final decree proceedings are required it would have the effect of upholding the division of properties as per the compromise which the Court holds to be sufficiently clear. There is clarity with respect to identity of properties and CRP having been dismissed, it is not now open to the defendants to contend that the identity of the property cannot be ascertained.
5. Insofar as the findings of both the Courts are concerned, it is to be observed that findings are based on appreciation of facts and evidence on record. Though there appears to be some discrepancy as pointed out by the learned counsel for the defendants with respect to description of the suit schedule property in the plaint vis-à-vis the description in the compromise petition, in light of the finding in CRP, the question of entering into any further adjudication as regards to the identity of the property is not open.
6. Both the Courts have correctly found that the defendants not having challenged the compromise entered in OS No.97/1975 the defense that is put up has weak legs to stand. Further, the Courts have noticed that the defendant No.1 who was a signatory to the compromise petition did not himself lead evidence. The Courts have also noticed that the 1st defendant had submitted an affidavit (Ex.P5) before the Assistant Commissioner acknowledging the compromise. The defendants in their written statement had primarily contended as regards the invalidity of compromise proceedings due to absence of the counsel appearing on behalf of the defendants.
7. The concurrent findings both on facts and on application of law, requires no interference. On a perusal of the judgments of the Courts below and the material on record no substantial question of law arises to admit this appeal. Accordingly, the appeal is dismissed.
In light of disposal of the appeal, no order is required to be passed on pending applications.
Sd/- JUDGE nms