Karnataka High Court
Donald D'Cunha vs Juliana D'Cunha on 12 November, 2021
Bench: S Vishwajith Shetty
RSA 1413/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
REGULAR SECOND APPEAL NO.1413/2015 (RES)
BETWEEN:
DONALD D'CUNHA
S/O BAPTIST D'CUNHA,
AGED ABOUT 44 YEARS,
R/AT CARMEL VIEW APARTMENTS,
NEAR ST. JOSEPH MONESTARY,
BIKARNAKATTE, JAYANAGAR ROAD,
KULSHEKAR, MANGALURU - 05. ... APPELLANT
(BY SRI S.RAJASHEKHAR, ADV.)
AND:
1. JULIANA D'CUNHA
W/O BAPTIST D'CUNHA,
AGED ABOUT 70 YEARS
2. BAPTIST D'CUNHA
S/O LATE PIAD D'CUNHA,
AGED ABOUT 74 YEARS
BOTH ARE RESIDING AT
HOLY FAMILY,
NEAR ST. JOSEPH MONESTARY,
BIKARNAKATTE, JAYANAGAR ROAD,
KULSHEKAR, MANGALURU - 05. ... RESPONDENTS
(BY SRI CYRIL PRASAD PAIS, ADV.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
30.06.2015 PASSED IN R.A.NO.26/2015 ON THE FILE OF THE 1ST
ADDL. SENIOR CIVIL JUDGE, MANGALURU, D.K., DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
RSA 1413/2015
2
27.02.2015 PASSED IN O.S.NO.139/2013 ON THE FILE OF THE V
ADDL. CIVIL JUDGE AND JMFC, MANGALORE, D.K.
THIS APPEAL COMING ON FOR HEARING ON
INTERLOCUTORY APPLN, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant is the son of respondent Nos.1 and 2.
The appellant as well as the first respondent are present in
person before the court. The second respondent is
represented by his wife, the first respondent herein.
2. The learned counsel appearing on behalf of the
parties as well as the parties jointly submit that the
dispute between the parties has been amicably settled out
of court at the instance of well-wishers and the elders of
the family. They have filed a compromise petition, which
has been signed by the parties as well as by their
respective Advocates. The terms of the compromise
petition dated 18.10.2021 read as follows:
"1. That the appellant has filed the
instant appeal challenging the judgment and
decree dated 27.02.2015 passed in
O.S.No.139/2013 on the file of the V Additional
Civil Judge & JMFC, Mangaluru, D.K. which is
confirmed in R.A.No.26/2015 on the file of the I
RSA 1413/2015
Addl. Senior Civil Judge, Mangaluru, D.K. The
averments made and the grounds urged in the
memorandum of appeal may kindly be read as
part and parcel of this compromise petition to
avoid repetition of facts.
2. That the plaintiffs/respondents herein
have filed a suit in O.S.No.139/2013 against
the defendant for cancellation of the sale deed
dated 11.02.2010 registered as document
on 15.06.2010 of book 1 in the office of the
Sub-Registrar of Mangaluru taluk and sale
deed dated 18.02.2010 registered as document
dated 10.06.2010 of book 1 in the office of the
Sub-Registrar of Mangaluru taluk and to make
a note on the copy of instrument contained in
his books the fact of cancellation and for a
consequential relief of possession directing the
defendant to deliver vacant possession of the
plaint 'B' schedule apartments situated in
schedule 'A' properties and for permanent
prohibitory injunction and for mesne profits
and other reliefs. By judgment and decree
dated 27.02.2015, the said suit came to be
partly decreed and the sale deeds dated
11.02.2010 document no.MGT-1-01529/2010-
11 and sale deed dated 18.02.2010 document
no.MGT-1-01433/2010-11 are declared as null
and void and the same is cancelled and the
defendant is directed to hand over the vacant
possession of the 'B' schedule property to the
plaintiffs within two months from the date of
the judgment. Challenging the said judgment
and decree, the appeal in R.A. no.26/2015
came to be filed before the First Appellate
Court. The First Appellate Court by judgment
dated 30.06.2015 has dismissed the appeal
RSA 1413/2015
and thereby confirmed the judgment and
decree passed by the Trial Court.
3. During the pendency of the instant
appeal, the plaintiffs and defendant i.e.
appellant and respondents herein, by
considering the relationship between them,
have come forward to an amicable settlement
at the intervention of elders, well wishers and
friends and as such, the present compromise
petition is filed.
4. The plaintiffs/respondents herein
admit and confirm that they have executed the
sale deeds dated 11.02.2010 and 18.02.2010
in favour of the defendant and the defendant
has become the absolute owner in respect of
the schedule B property. By virtue of this
compromise, the respondents/plaintiffs admit
that the defendant/appellant is the absolute
owner in possession and enjoyment in respect
of the schedule property and the
defendant/appellant (Donald D'cunha) is at
liberty to get the khatha and other revenue
records in respect of the said property changed
in his name. The plaintiffs/respondents herein
will not disturb the possession of
defendant/appellant of the schedule B
property henceforth.
5. That the compromise entered into
between the parties is valid, legal and the
same is not opposed to any law. The above
compromise is entered into between the parties
out of their free will and there is no force,
threat, coercion and undue influence in
entering this compromise."
RSA 1413/2015
3. Having regard to the settlement arrived at between
the parties and also considering the relationship of the
parties, the compromise petition is taken on record.
The appeal is disposed of, in terms of the
compromise petition. The judgment and decree passed by
both the courts below are modified in terms of the
compromise petition. Resultantly, the judgment and
decree dated 27th February 2015 passed by the court of V
Additional Civil Judge and J.M.F.C., Mangalore, D.K.
District, in O.S.No.139/2013, which has been confirmed in
R.A.No.26/2015 by the court of 1st Additional Senior Civil
Judge, Mangalore, D.K. District, by its judgment and
decree dated 30th June 2015 are set aside.
In view of disposal of the appeal, the pending I.As. do
not survive for consideration. Hence, they stand disposed
of.
Sd/-
JUDGE
KNM/-
