IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE H.T. NARENDRA PRASAD R.F.A. No.1023 OF 2014 (PAR) BETWEEN:
SRI T.V. MADAN MOHAN S/O. LATE T.K. VENKATANARASAIAH, AGED ABOUT 63 YEARS, R/AT NO.25, MAMULPET, BANGALORE – 560 053. SINCE DEAD BY HIS LR’s.
1. SMT. T.M. TRIVENI W/O. LATE T.V. MADAN MOHAN, AGED ABOUT 60 YEARS, 2. SMT. T.M. CHANDRA BHAVANI D/O. LATE T.V. MADAN MOHAN, AGED ABOUT 33 YEARS, 3. SMT. T.M. PADMINI BHAVYA D/O. LATE T.V. MADAN MOHAN, AGED ABOUT 29 YEARS, ALL ARE R/AT NO.50, OPPOSITE TO JYOTHI NIVAS COLLEGE KORAMANGALA INDUSTRIAL LAYOUT 5TH BLOCK, KORAMANGALA BENGALURU – 560 095.
(CAUSE TITLE AMENDED AS PER COURT ORDER DATED 10/10/2018) ... APPELLANTS (BY SRI D.R. RAJASHEKHARAPPA, ADVOCATE) AND:
SRI T.V. ASHOK KUMAR S/O. LATE T.K. VENKATANARASAIH, AGED ABOUT 56 YEARS, R/AT NO.169, (NEW NO.169/22), ‘NENAPU’, 6TH MAIN ROAD, TEACHERS COLONY, II STAGE, BANASHANKARI, BANGALORE – 560 070. ... RESPONDENT (BY SRI B.M. SUNIL KUMAR, ADVOCATE) THIS R.F.A. IS FILED UNDER SECTION 96, READ WITH ORDER XLI, RULE 1 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED: 26.4.2014 PASSED IN O.S.NO.2660/2008 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY (CCH-39), PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS R.F.A. COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants are the legal representatives of deceased T.V. Madan mohan, who had filed O.S. No.2660 of 2008 before the XXXVIII Additional City Civil and Sessions Judge, Bangalore City (CCH-39). The said suit was filed seeking the relief of partition and separate possession claiming half share in the suit schedule property, which is a house property.
2. By judgment and decree dated 26.04.2014, the suit was decreed in part directing the plaintiff to be entitled to 1/7th share in the suit schedule property by way of partition and separate possession by metes and bounds; while the defendant was allotted 6/7th share in the suit schedule property. Being aggrieved by the judgment and decree of the trial Court, the plaintiff has preferred this appeal.
3. During the pendency of this appeal, the appellant / plaintiff died. His legal representatives have been brought on record. During the pendency of this appeal, the parties have negotiated a settlement and submit that the appeal may be disposed off in terms of the settlement arrived at between them. The appellants as well as the respondent submit that they have arrived at this settlement on their own volition without there being any force, coercion or undue influence from any quarter.
4. Learned counsel for the respective parties also submit that the appeal may be disposed off in terms of the settlement arrived at between the parties.
5. That the parties are present before the Court.
They have been identified by their respective counsel. The parties submit that having regard to the Settlement arrived at between the parties, the appeal may be disposed off in accordance with the settlement. The memorandum of compromise petition filed under Order XXIII Rule 3 of the Code of Civil Procedure, 1908, is taken on record and perused. The compromise petition is signed by the parties. The terms of the compromise read as under:
“The L.Rs. of the deceased appellant late T.V. Madan Mohan and the respondent Sri T. V. Ashok Kumar, submit as follows :-
1. At the intervention of friends, relatives and well-wishers of both the parties, the L.Rs. of the deceased appellant and the respondent have agreed to resolve their dispute involved in the above appeal amicably by settling their inter se dispute in respect of the residential property, which is fully described in the schedule to the plaint and also in the schedule to this compromise petition and herein after referred to as Schedule property in the course of this compromise petition.
2. The schedule property was jointly purchased by late T. V. Madan Mohan the deceased appellant and his younger brother Sri T. V. Ashok Kumar, the respondent herein as per the sale deed, dated 04.12.2006 and they were put into possession of the said property on the date of the sale deed and they continued to be in possession as joint owners of the schedule property.
3. The deceased appellant Sri T. V. Madan Mohan, instituted the suit in O.S. No.2660 of 2008 on the file of the learned 38th Additional City Civil and Sessions Judge at Bengaluru, seeking partition and separate possession of his half share in the schedule property and the said suit was contested by the respondent herein as defendant in the suit. The suit was partly decreed as per the judgment and decree, dated 26.04.2014 holding that the plaintiff in the suit was entitled for 1/7th share in the schedule property and aggrieved by the said judgment and decree, the deceased appellant herein had preferred the above regular first appeal. During the pendency of the above appeal, Sri T. V. Madan Mohan died and his wife and children have been brought on record as his legal representatives and they are prosecuting the matter.
4. Now the L.Rs. of the deceased appellant and the respondent have agreed to resolve their dispute in respect of the schedule property amicably as per the terms and conditions set out herein below :-
5. It is agreed between the parties that, the schedule property be sold jointly by them to a third party and get the best price for the schedule property available in the market and the sale consideration received by selling the schedule property be shared equally by the L.Rs. of the deceased appellant together on the one hand and the respondent on the other hand. In other words the L.Rs. of the deceased appellant would get 50% of the sale consideration and remaining 50% would go to respondent Sri T. V. Ashok Kumar.
6. It is agreed that, both the appellants and the respondent should make honest attempts to get a purchaser at the earliest and to complete the sale of the schedule property expeditiously.
7. The respondent Sri T. V. Ashok Kumar has agreed to withdraw the F.D.P. No.119 of 2014 instituted by him and pending on the file of the learned City Civil and Sessions Judge (CCH No.39), Bengaluru. In the event of the respondent not withdrawing the said FDP, the L.Rs. of the deceased appellant are at liberty to produce the certified copy of the compromise decree made in the above appeal and seek for necessary orders before the trial Court on the basis of the said compromise decree.
8. Parties to bear their own costs of this appeal and the original suit O.S. No.2660 of 2008.
9. The decree drawn on the basis of this compromise petition shall be treated and considered as final decree for all purposes.
SCHEDULE All the piece and parcel of the residential property bearing Site No.169, Sarakki Notified Area Committee Katha Old No.577/169, situated at Jaraganahalli village, Uttarahalli Hobli, Bangalore South Taluk, formed by the Kendra Upadhyayara Sangha, Bangalore and presently the Bruhat Bangalore Mahanagara Palike, has assigned the property as Municipal New No.169/22, 6th Main Road, Kendra Upadhyayara Sangha, Bangalore and the site is measuring East to West 40 feet and North to South 30 feet, together with the house constructed thereon consisting of ground floor and first floor and bounded on :
East by : Road West by : Property No. 209 North by : Property No. 168 South by : Property No.170 Wherefore the L.Rs. of the deceased appellant and the respondent pray that, this Hon’ble Court be pleased to allow this appeal in terms of the compromise petition and modify the decree made by the learned trial Judge in O.S. No.2660/2008 and decree the said suit in terms of this compromise petition in the interest of justice and equity.”
6. On perusal of the same, it is noted that the parties have agreed that the schedule property be sold jointly by them to a third party for a best price and that the sale consideration received shall be shared equally between the appellants together and the respondent. We, however, find that the manner in which the sale proceeds have to be shared has not been incorporated in the compromise petition. Therefore, the potential purchaser of the suit schedule property is directed to deposit 50% share of the appellants in the suit schedule property in a Bank account, the details of which shall be given by the appellants to the potential purchaser. The balance 50% shall be paid to the respondent. Although the potential purchaser is not a party to this appeal, having regard to the interest of the appellants and the respondent, the aforesaid direction is issued.
7. The parties submit jointly that they will abide by the terms and conditions of the settlement as well as the aforesaid direction. Their submission is placed on record.
8. In the circumstances, this appeal is disposed off in terms of the Settlement arrived at between the parties by modifying the judgment and decree of the trial Court in the aforesaid terms.
9. Office to draw final decree in the aforesaid terms forthwith.
Sd/- JUDGE hnm Sd/- JUDGE