Vijaykumar S/O. Late Nemichand ... vs Manickchand S/O. Late Nemichand ...
2022 Latest Caselaw 493 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 12TH DAY OF JANUARY 2022

                            BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                    RSA.NO.6142/2012 (PAR)
BETWEEN

VIJAYAKUMAR
S/O. LATE NEMICHAND DESAI
AGE: 54 YEARS,
OCC: AGRICULTURE
R/O: NEAR RAILWAY STATION
POST OFFICE
MALAMADDI, DHARWAD
                                                ... APPELLANT

(BY SRI.P.V.GUNJAL & SRI.M.P.DIXIT, ADVS.)

AND

1.    MANICKCHAND
      S/O. LATE NEMICHAND DESAI
      AGE: 62 YEARS, R/AT: NO. 42,
      NAGARAJ NILAY 6TH CROSS,
      18TH MAIN, M.B. NAGAR,
      TALAKERI, BANGALORE

2.    MOTHICHAND
      S/O. LATE NEMICHAND DESAI
      AGE: 60 YEARS,
      R/AT: 5TH CROSS, STATION ROAD
      MALAMADDI, DHARWAD

3.    BABASAHEB
      S/O. LATE NEMICHAND DESAI
      AGE: 52 YEARS,
      R/AT: 5TH CROSS, STATION ROAD
      MALAMADDI, DHARWAD
                                 2




4.    SUKUMAR
      S/O.LATE NEMICHAND DESAI
      AGE: 49 YEARS,
      R/AT: 5TH CROSS, STATION ROAD
      MALAMADDI, DHARWAD

5.    SMT.SHOBHA W/O. DEVARAJ PIDWI
      AGE: 58 YEARS, OCC: HOUSEHOLD WORK
      R/O. DEVARAJ MUNIYAPPA PIDWI
      H.NO. 12 B, G.C. SCHOOL,
      BACKSIDE COLONY, GADAG

6.    SMT.PADMAJA W/O. BAHUBALI KADABI
      AGE: 43 YEARS, OCC: LIBRARIAN IN THE INSTITUTE OF
      MANAGEMENT EDUCATION
      R/AT: ANANT RESIDENCY, ANGOL, BELGAUM

                                                 ... RESPONDENTS

(BY SRI.A.T.SAVANUR, ADV. FOR C/R2-R4,
    SRI.R.M.KULKARNI, ADV. FOR R1, R3 & R4,
    SRI.CHETAN MUNNOLLI & SWATHI KULKARNI &
    LOKESH HEGDE, ADVS FOR R3 & R4,
    R5 & R6 ARE SERVED)

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC SEEKING

TO SET ASIDE THE JUDGMENT AND DECREE DATED 06.07.2012

PASSED   BY   THE   PRINCIPAL   DISTRIT   AND   SESSIONS   JUDGE,

DHARWAD IN R.A.NO.288/2010 AND ALLOW THE JUDGMENT AND

DECREE DATED 30.10.2010 PASSED BY III ADDL. SENIOR CIVIL

JUDGE, DHARWAD IN O.S.NO.30/2009.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE

COURT DELIVERED THE FOLLOWING:
                                      3




                              JUDGMENT

The captioned Regular Second Appeal is filed by the

plaintiff questioning the judgment and decree of the first

appellate court passed in R.A.No.288/2010 wherein the

first appellate court has proceeded to dismiss the suit.

2. Brief facts leading to the case are that,

appellant/plaintiff filed a suit in O.S.No.30/2009 claiming

his share in the suit schedule property which is open space

bearing No.98/A/SP measuring 5352 sq.ft. and also sought

share in the properties bearing Nos.1080A and 1080B

situated at Amminabhavi village.

3. The respondents/defendants on receipt of

summons tendered appearance and contested the

proceedings by filing the written statement. The present

respondents/defendants have specifically contended that

present suit is not at all maintainable in view of

compromise decree passed by this court as per Ex.P1

arising out of RFA No.328/2001. Therefore,

respondents/defendants specifically contended that lis

insofar as item No.1 is concerned, the same is put at rest

in view of full and final settlement between the parties in

terms of compromise decree passed by Lok Adalath in RFA

No.328/2001. Insofar as item Nos.2 and 3 which are

residential houses situated at Amminabhavi village are

concerned, the respondents/defendants did not lay any

claim. They specifically averred that said properties were

never owned by father of the plaintiffs and they are not at

all in existence. It was also contended that item Nos.2 and

3 are not at all in possession of the family. Therefore,

question of effecting partition in item Nos.2 and 3 would

not arise. Respondents/defendants also specifically

contended that, in view of compromise decree passed in

RFA No.328/2001, the present suit is clearly hit by Section

11 of CPC. The appellant/plaintiff in support of his claim let

in ocular evidence by examining himself as P.W.1 and

relied on documentary evidence vide Exs.P1 to P7.

Respondents/defendants examined defendant No.3 as

D.W.1 and relied on documentary evidence vide Exs.D1 to

D7. The trial court by virtually placing reliance on an

admission given by defendant No.3 who is examined as

D.W.1 has proceeded to decree the suit, thereby awarding

8/49th share to the present appellant/plaintiff.

4. The respondents/defendants feeling aggrieved

by the judgment and decree of the trial court preferred an

appeal before the first appellate court. The first appellate

court on re-appreciation of oral and documentary evidence

has recorded a categorical finding discarding the contention

of the appellant/plaintiff in regard to existence of open

space in item No.1. The first appellate court has taken

judicial note of last paragraph of the compromise petition

where there is a reference to the open space and the said

open space agreed to be shared jointly by three brothers.

Having taken note of this relevant paragraph, which is part

of the compromise petition, the first appellate court has

come to the conclusion that the allegations of the

appellant/plaintiff that he was not aware of the fact that

the family still owned additional extent of 5 guntas, which

was not part of the compromise decree was rejected. The

first appellate court even otherwise was of the view that,

even if such open space was in existence, the

appellant/plaintiff being party to the compromise petition

has omitted or waived off his right, if any, in the open

space. Therefore, the first appellate court was of the view

that the present suit for partition is not at all maintainable.

5. Insofar as item Nos.2 and 3 are concerned, the

first appellate court was of the view that, except producing

record of rights, the appellant/plaintiff has not produced

any documents to demonstrate that item Nos.2 and 3 are

also joint family ancestral properties. The first appellate

court was of the view that earlier suit was pending almost

for 14 years and there was no claim made by

appellant/plaintiff. Therefore, the first appellate court has

also declined to grant any relief insofar as item Nos.2 and 3

are concerned.

6. Heard the learned counsel for the appellant and

learned counsel for the respondents. I have perused the

judgments rendered by both the courts below. I have also

given my anxious consideration to the terms and conditions

of the compromise petition, which is culled out by the first

appellate court in its judgment. I have also meticulously

examined the averments made in the present suit in regard

to the existence of open space.

7. On bare reading of the averments made in the

plaint, there is as much ambiguity that can be possible. It

is the specific case of the appellant/plaintiff that family still

owns additional extent of 5 guntas and that was not at all

the subject matter of the compromise petition and

therefore, the appellant claims that he is entitled for share

in the remaining extent of 5 guntas. Having taken such a

contention, it was incumbent on the part of the

appellant/plaintiff to furnish clinching evidence and also

sketch indicating existence of open space which was

agreed under the compromise petition to be jointly shared

by other three brothers. However, the plaint does not

indicate the location of the open space which was left out

in the earlier suit. The grievance of the appellant/plaintiff is

that the open space which is agreed to be jointly enjoyed

by three brothers is not reflected in the table, but the same

is inserted at the last page of the compromise petition

cannot be acceded to. At page 6, it is clearly agreed by the

parties that, open space in front of the well and by the side

of the cement house has to be shared by other three

brothers. The recitals of the compromise petition at page 6

clearly indicates that the plaintiff is denied any share and

this aspect is accepted by the appellant/plaintiff who is

signatory to the compromise petition. This compromise

petition is not under challenge. Therefore, the

appellant/plaintiff is bound by the terms and conditions of

the amicable settlement which was reduced into writing.

The appellant/plaintiff has voluntarily signed compromise

petition having understood the terms and conditions of the

settlement. This compromise is recorded by this court in an

appeal pending in RFA No.328/2001 where parties

amicably settled and when compromise is recorded at the

intervention of the court, lot of credence stands attached to

such a compromise. The appellant/plaintiff having amicably

settled the dispute with his brothers and having entered

into a compromise cannot be permitted to re-litigate and

reopen the partition without questioning the compromise

decree in a subsequent suit. The appellant/plaintiff is

heavily banking on an admission given by defendant No.3

who is examined as D.W.1. On perusal of the said

admission, I am of the view that it is not conclusive and

the said admission does not go to the root of the case. The

appellant/plaintiff cannot bank on an admission. The initial

burden is on the appellant/plaintiff to demonstrate that in

spite of compromise among the parties in RFA

No.328/2001, the family of the respondents/defendants is

still holding an additional extent of 5 guntas. This burden is

not at all discharged by the appellant/plaintiff by producing

cogent and clinching evidence.

8. The case of the appellant/plaintiff further gets

weakened in view of there being contradictory

measurements in the legal notice and in the plaint

schedule. In the legal notice, the appellant/plaintiff claims

that additional extent of 4869 sq.ft. is still available with

the plaintiff and defendants family, whereas in the plaint

schedule, the appellant/plaintiffs claims that additional

extent of 5352 sq.ft is still available for partition.

Therefore, I would find that there is ambiguity in regard to

appellant/plaintiff holding an additional land which was

subject matter of earlier suit. No sketch is furnished by the

appellant/plaintiff. There is absolutely no averment as to

what is the measurement of the open space which is shown

in the compromise petition, which is agreed to be jointly

enjoyed by other three brothers excluding the present

appellant/plaintiff.

9. If all these significant details are taken into

consideration, I am of the view that judgment and decree

of the first appellate court is in accordance with law. The

appellant/plaintiff is bound by the compromise decree

passed in RFA No.328/2001. The matter is put at rest in

terms of the compromise decree recorded in RFA

No.328/2001. When there is full and final settlement, the

appellant/plaintiff cannot be permitted to re-litigate and file

the present suit. Even before this court, I would find that

appellant/plaintiff grievance is more towards item No.1 and

not against item Nos.2 and 3. Probably to overcome the

binding effect of compromise decree, the appellant/plaintiff

has taken recourse to add another two properties by

contending that two residential houses at Amminabhavi

village are also joint family ancestral properties. However,

there is no contest and claim insofar as other two

properties are concerned by respondents/defendants.

10. Be that as it may, if those two properties which

are not in possession of appellant/plaintiff and if

defendants are not claiming any right in the property, it is

always open for the appellant/plaintiff to seek the relief of

possession of those two residential houses.

11. In this background, I am of the view that no

substantial question of law arises in the present case on

hand. Accordingly, the appeal stands dismissed.

Sd/-

JUDGE MBS/-