Karnataka High Court

Basavaiah S/O Sannaram Dead By Lrs ... vs Sri Kanthappa on 28 February, 2022

Bench: R. Nataraj

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY 2022

                       BEFORE

           THE HON'BLE MR.JUSTICE R.NATARAJ

     REGULAR SECOND APPEAL NO.1796 OF 2007 (DEC)


BETWEEN:


BASAVAIAH S/O SANNARAM
DEAD BY LRS NO.1 TO 4

1.    SMT.PUTTATHAYAMMA
      W/O LATE BASVAIAH
      AGED ABOUT 45 YEARS,

2.    KUMARI. KUSUMA
      D/O LATE BASAVAIAH
      AGED: 25 YEARS,
                                Correction carried out in open
3.    SMT. CHETANA KUMARI       Court, by the orders and
      D/O LATE BASAVAIAH        permission of the Hon'ble Court
      AGED ABOUT 21 YEARS,      on 28.2.2022.


      ALL ARE R/O CHIKKATOTLULERE
      KASABA HOBLI, TUMKUR DISTRICT
      PIN-572 128.

4.    SMT. SHOBHA
      W/O SHIVANNA
      D/O LATE BASAVAIAH
      AGED ABOUT 19 YEARS,
      R/O KOTAMMANAHALLI VILLAGE,
      MALLASANDRA POST,
                           2


       KASABA HOBLI,
       TUMKUR TALUK AND DISTRICT-572 107

                                   ...APPELLANTS

(BY SRI. V.B.SIDDARAMAIAH, ADVOCATE)

AND:

1.     SRI. KANTHAPPA
       S/O LATE LAKSHMINARASAIAH
       AGED ABOUT 41 YEARS,
       RAMAGONDANAHALLI
       KASAB HOBLI,
       TUMKUR TALUK AND DIST.
       PIN-572 128.

2.     SRI. AMMER JAN
       S/O MOHAMMED IBRAHIM SAHEB      Deleted on 28.2.2022
                                       by the order of the
       MAJOR                           Hon'ble Court with
       OCC: TAILOR                     Court permission.
       BARLINE, 2ND CROSS,
       TUMKUR-572 101.

                                       RESPONDENTS

(BY SRI. SATISH M. DODDAMANI,           ADVOCATE        FOR
RESPONDENT NO.1;
RESPONDENT   NO.2 DELETED VIDE           ORDER       DATED
28.02.2022)


      THIS REGULAR SECOND APPEAL IS FILED UNDER
ORDER XLII RULE 1 READ WITH SECTION 100 OF THE CIVIL
PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE
DATED 18.02.2006 PASSED IN R.A.NO.338/2005 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-III,
TUMKUR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 27.09.1997 PASSED IN
OS.NO.716/1989 ON THE FILE OF THE I ADDL.CIVIL JUDGE
(JR.DN.), TUMKUR.
                                 3



    THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is filed by the defendant No.2 in O.S.

No.716/1989 challenging the judgment and decree dated

18.02.2006 passed by the Fast Track Court-III, Tumakuru,

(henceforth referred to as 'the First Appellate Court') in

R.A No.338/2005 by which the First Appellate Court

decreed the suit in O.S. No.716/1989 and directed

redemption of the mortgage executed by the predecessor

of the plaintiff in favour of the defendant No.1. The

defendant No.2 is a purchaser of the property from the

defendant No.1.

2. The parties have today reported a compromise

in terms of which the legal representatives of the

defendant No.2 have accepted the judgment and decree of

the First Appellate Court in R.A. No.338/2005 consequent

to which, they have undertaken to reconvey the suit

property to the plaintiff at the cost of the plaintiff.

3. Since the First Appellate Court in R.A.

No.338/2005 had held that the defendant No.1 was a

mortgagee, who had no right to sell the suit schedule

property to the defendant No.2 and since the First

Appellate Court had directed the redemption of the said

mortgage, the settlement of the dispute between the

parties is just and fair. The compromise petition dated

28.01.2022 reads as follows:

"MEMORANDUM OF COMPROMISE PETITION UNDER ORDER XXIII RULE III OF THE CODE OF CIVIL PROCEDURE 1908

The appellant and the respondents respectfully submits as follows:

1. The parties to the present Appeal are referred to as per their ranking before the Trial Court, the 1st respondent in the above mentioned appeal was the original plaintiff in st O.S.No.716/1989 on the file of 1 Additional Munsiff, Tumkur, the said suit was filed by contending that the father of the plaintiff had entered into a usufructuary mortgage with one Ameerajan vide Mortgage Deed dated 07.07.1966, that his father of passed away on 1967 and though notice was issued to the mortgagee for accepting the mortgage money and delivering the possession of the suit schedule property, the same was not done, necessitating the institution of O.S.

No.716/1989 on the file of 1st Additional Munisiff, Tumkur appellant in the present appeal is the plaintiff in O.S. No.716/1989, the said suit was

dismissed by a judgment and decree dated 27.09.1997. Further it is relevant to mention that during the pendency of the said suit the 1st defendant sold the property in favour of the 2nd defendant and the 2nd defendant got himself impleaded.

2. Being aggrieved by the judgment and decree of dismissal, the plaintiff preferred R.A. in R.A. No.338/2005 before the Honorable III Additional Fast Track Court at Tumkur and the said Regular Appeal is allowed vide judgment and decree dated 18th February 2006.

3. It is respectfully submitted that, 1st defendant in O.S. No.716/1989, have accepted the judgment and decree passed in R.A. No.338/2005, dated 18th February 2006 and have not preferred any regular second appeal before this Honorable Court, however it is only the 2nd defendant to the suit who has challenged the judgment and decree passed in R.A. No.338/2005, dated 18th February 2006.

4. It is respectfully submitted that now during the pendency of above mentioned regular second appeal, the appellants and the 1st respondent to the appeal at the instance of well-wishers, relatives and friends have decided to enter into a compromise petition, the terms and conditions of which are as under;

i. It is respectfully submitted that, appellants in the above mentioned Regular Second Appeal in R.S.A.

No.1796/2007 on the file of Honorable High Court of Karnataka at Bangalore, accept the judgment and decree passed in R.A. No.338/2005, dated 18th February 2006.

ii. It is respectfully submitted that, appellants in the present appeal would

withdraw the above mentioned Regular Second Appeal unconditionally.

iii. It is respectfully submitted that, the 2nd respondent in the above mentioned Regular Second Appeal has already sold the suit schedule property in favour of the appellants, as such they do not have any subsisting right, further as the second respondent in the Regular Second Appeal have accepted the judgment and decree passed in R.A. No.338/2005, dated 18th February 2006, by the III Additional Fast Track Court at Tumkur as they have not preferred any appeal.

iv. It is respectfully submitted that, the terms and conditions of the compromise filed by the parties in the above mentioned Regular Second Appeal are lawful and the same is not opposed to public policy.

v. It is respectfully submitted that, compromise entered into in the above mentioned Regular Second Appeal is voluntary and the same is not under undue influence or coercion.

Wherefore it is most respectfully prayed that this Honorable Court may be pleased to pass orders in the above mentioned Regular Second Appeal in terms of compromise petition, in the interest of justice and equity."

4. Since the compromise is just and fair, it is

accepted. The appellant No.2 has filed an affidavit wherein

she has stated that she had signed the vakalat in English

while she has signed the compromise petition in Kannada

and that she is the author of the said signatures. The said

affidavit is taken on record.

5. The appellants as well as the respondent No.1

are present in person and they all admit the terms of the

compromise petition. The appellants have agreed to

execute the sale deed to convey the suit schedule property

to the plaintiff/respondent No.1 and in token of their

acceptance of the compromise petition, they have affixed