Karnataka High Court

Sri M Suresh vs Smt R Prema on 20 June, 2022

Bench: S.R.Krishna Kumar

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     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 20th DAY OF JUNE, 2022

                         BEFORE

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

               R.F.A.NO.1794 OF 2019(PAR)
BETWEEN

SRI. M. SURESH
S/O. LATE SHRI K. MANI
AGED ABOUT 52 YEARS
R/O NO.15/A, II STAGE,
A BLOCK, MILK COLONY
MALLESWARAM (WEST)
BENGALURU-560055.                           ...APPELLANT

(BY SRI. PRADEEP KUMAR, ADVOCATE FOR
    SRI. SHANMUKHAPPA, ADVOCATE)

AND

1.     SMT. R. PREMA
       W/O. LATE K. MANI
       AGED ABOUT 74 YEARS
       R/O 15/A, II STAGE
       'A' BLOCK, MILK COLONY
       MALLESHWARAM (WEST)
       BENGALURU-560055.
       PRESENTLY AT.NO.73,
       KHBCS LTD, II STAGE,
       KURUBARAHALLI,
       BENGALURU-560086.

2.     SMT. ASHA
       W/O. SRI. MURTHY
       D/O. LATE K. MANI
       AGED ABOUT 49 YEARS
       R/O. NO.73, KHBCS LTD
       II STAGE, KURUBARAHALLI
       BENGALURU-560086.
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3.    SMT USHA
      W/O. SRI. M.K. RAJAGOPAL
      D/O. LATE SRI. K. MANI
      AGED ABOUT 48 YEARS
      R/AT. OPP: KERS OFFICE,
      K.R.SAGAR
      MANDYA DISTRICT-571432.

4.    SMT. PADMALATHA
      W/O. SRI. DIWAKAR
      D/O. LATE SRI K. MANI
      AGED ABOUT 44 YEARS
      R/O NO.15/A
      II STAGE A BLOCK
      MILK COLONY
      MALLESHWARAM WEST,
      BENGALURU-560055.

5.    SMT SHOBHA
      W/O SRI SHANKAR
      D/O LATE SRI K. MANI
      AGED ABOUT 45 YEARS
      R/O NO. 4219, II FLOOR
      II CROSS, 18TH MAIN,
      NEAR OLD CANARA BANK
      SUBRAMANYANAGAR
      BENGALURU-560021.                     ...RESPONDENTS

(BY SRI. H.T. NATARAJ, ADVOCATE FOR R1 TO R5)


      THIS APPEAL IS FILED UNDER ORDER 41 RULE 1 R/W
SEC.96 OF CPC, AGAINST THE ORDER DATED 11.06.2019 PASSED
IN FDP NO.47/2014 IN O.S.NO.7372/2008 ON THE FILE OF THE VI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY,
ALLOWING THE PETITION FILED UNDER ORDER XX RULE 18 R/W
SEC.151 OF CPC AND ETC.,


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

This appeal by the respondent-defendant in FDP

No.47/2014 is directed against the impugned judgment and

decree dated 11.06.2019 passed in FDP No.47/2014 arising

out of O.S.No.7372/2008 on the file of VI Addl. City Civil &

Sessions Judge, Bengaluru City, whereby the said final

decree petition was allowed by the Trial Court, thereby

directing the suit schedule properties put into public auction.

2. The appellant is the son of respondent No.1 and

brother of respondents No.2 to 5 who are daughters of

respondent No.1. The appellant and the respondents have

filed a Joint Compromise Petition under Order XXIII Rule 3 of

Code of Civil Procedure, which has been duly signed by the

appellant, respondents and their respective counsel who have

duly identified the parties. The parties and their respective

counsel are present before the Court physically and they

accept the terms and conditions of the said Compromise

petition, which reads as under:-

"The appellant and the respondents named above

submit as follows:-

1. That the appellant has filed a suit for partition and separate possession in respect of Item No.1 to 3 of Schedule Property, in O.S.N.7372/2008, on the file of City Civil Judge at Bengaluru, against the respondents, which suit came to be decreed on 30-08- 2013, by allotting 1/6 share to all the parties to the suit, i.e., appellant and the respondents. Subsequently, the respondents have filed Final Decree Proceedings in F.D.P.No.47/2014, on the file of VI Addl. City Civil and Session Judge at Bengaluru (CCH-11) and sought for drawing of Final Decree, in which case, an order came to be passed by allowing the petition, passed the following ORDER (1) Petition is hereby allowed.

(2) Petitioners are entitled to put the suit schedule properties in public auction so as to enable petitioners or respondent or general public to bid the same for the highest bid amount and thereby, apportion the sale proceeds between Petitioners and Respondent proportionately.

(3) Draw final decree accordingly.

Being aggrieved by the said Order, the appellant has filed the above appeal.

2. That at the intervention of well wishers, family friends and considering the age of the 1st respondent, who is the mother of appellant and the respondent No.2 to 5 have decided to divided the Item No 1 to 3 of the Schedule Property in equal manner to avoid future disputes and misunderstanding amongst them and to maintain peace and harmony in the family, desires to effect a partition of the Item No 1 to 3 of the Schedule Property amongst themselves and intend to divide the Item No 1 to 3 of the Schedule Property by metes and bounds and have accordingly agreed to record in writing the terms of the partition effected amongst them, the appellant & the respondents ( in short hereinafter referred to as the parties) have entered the following terms and conditions of their compromise, which are as follows:-

I. That the parties to this compromise petition have mutually agreed and consented that the fourth respondent herein i.e. SMT.M.PADMALATHA is allotted to Item No. 3 of the Schedule Property, and she owns, possess and hold the same as the absolute owner, which details as follows:

All that piece and parcel of the property bearing No.15A, Rajajinagar 2nd Stage, Triplican Main, 'A' Block, formed by the Bangalore Development Authority, now falling within the purview of the BBMP Ward No.9 (Subramanyanagar) and bearing property ID No.9-34-15/A, measuring East to West 15 Ft. and North to South 40 Ft bounded on the:

         East by       :    Site No.16
         West by       :    Site No.15
         North by      :    Kirloskar Compound
         South by      :    Road

i. That in consideration of the above, the appellant, the first respondent, second respondent, third respondent and fifth respondents have voluntarily agreed to release and discharge all their claim, share, right, title and interest in respect of the Item No.3 of the Schedule Property in favour of and unto the fourth respondent. The appellant, the first respondent, second respondent, third respondent and fifth respondent hereby and hereunder declare and confirm that they will not claim any right, title or interest in future whatsoever in, to, upon or otherwise relating to the same or any portion thereof or otherwise concerning the same, in respect of the Item

No. 3 of the Schedule Property and the appellant, the first respondent, second respondent, third respondent and fifth respondent hereby agreed to release and discharge the said fourth respondent from all claims as to management and administration of the Item No. 3 of the Schedule Property ancillary or incidental thereto as well as all questions as to account and dealings with the Item No. 3 of the Schedule Property. In view of the same, the appellant also undertakes to execute and register a release deed in favour of fourth respondent, releasing all his right, title and interest in respect of Item No.3 of the Schedule Property.

ii. That the original title deed and mother deed in respect of Item No.3 of the Schedule Property is delivered and handed over to the fourth respondent by the Appellant, first respondent to Third Respondent & fifth respondent, the fourth respondent do hereby admit and acknowledges the same.

iii. That the first respondent being the mother of appellant and the rest of the respondents, had taken the shelter with the fourth respondent, and the fourth respondent will be taking care of the first respondent till her death. The fourth respondent further

undertakes that, until the death of first respondent, she will take care all her needs for day today life of first respondent which including shelter.

II. That the parties to this compromise petition have mutually agreed and consented that the appellant herein i.e. SRI.M.SURESH is allotted to Item No. 1 of the Schedule Property, and he owns, possess and hold the same as the absolute owner, which details as follows:

All that piece and parcel of the residential house property bearing BBMP No.2, old site No.9, carved of old Survey No.168 and new Survey No.21:1 of Laggere Village, Yeshwanthpur Hobli, Bangalore North Taluk, situated at 7th Cross, J.C.Nagar, Kurubarahalli, Bengaluru, measuring East to west 40 Feet and North to South 30 Feet or 1.1 gunta, now falling within the purview of the BBMP together with standing structures on it, bounded on the:

      East by      :      Road
      West by      :      Remaining portion of
                         Sonappa (Vendor's) Property
      North by     :      Hamsaveni's Property
      South by     :      Krishnappa's Property

i. That in consideration of the above, the first respondent, second respondent, third respondent, fourth respondent and fifth respondent have voluntarily agreed to release and discharge all their claim, share, right, title and interest in respect of the Item No.1 of the Schedule Property in favour of and unto the appellant. The first respondent, second respondent, third respondent, fourth respondent and fifth respondent hereby and hereunder declare and confirm that they will not claim any right, title or interest in future whatsoever in, to, upon or otherwise relating to the same or any portion thereof or otherwise concerning the same, in respect of the Item No. 1 of the Schedule Property and first respondent, second respondent, third respondent, fourth respondent and fifth respondent hereby agreed to release and discharge the said appellant from all claims as to management and administration of the Item No. 1 of the Schedule Property ancillary or incidental thereto as well as all questions as to account and dealings with the Item No. 1 of the Schedule Property.

ii. That the original title deed and mother deed in respect of Item No.1 of the Schedule Property is

delivered and handed over to the Appellant by the first respondent to Fifth respondent, the appellant do hereby admit and acknowledges the same.

III. That Item No.2 of the Schedule Property is allotted to the share of the Second respondent, Third respondent & Fifth respondent to this compromise petition and that Parties to this compromise petition have mutually agreed and consented that the second respondent, third respondent and fifth respondent herein i.e. SMT.M.ASHA, SMT.M.USHA AND SMT.M.SHOBHA is allotted to Item No. 2 of the Schedule Property, and they jointly owns, possess and hold the same as the absolute joint owners, which details as follows:

All that piece and parcel of the property bearing No.39, in the layout formed by M/s. Kirloskar Electric Company Employees House Building Co-operative Society Limited, carved out of Sy.No.13, situated at Shidehalli Village, Yeshwanthpura Hobli, Bangalore North Taluk, measuring East to West 30 ft and North to South 40 ft., bounded on the:

         East by      :      Road
         West by      :      Site No.42




        North by   :      Site No.40
        South by   :      Site No.38

i. That in consideration of the above, the Appellant, First respondent, and fourth respondent have voluntarily agreed to release and discharge all their claim, share, right, title and interest in respect of the Item No.2 of the Schedule Property in favour of and unto the Second respondent, Third respondent & Fifth respondent. The Appellant, first respondent, and fourth respondent hereby and hereunder declare and confirm that they will not claim any right, title or interest in future whatsoever in, to, upon or otherwise relating to the same or any portion thereof or otherwise concerning the same, in respect of the Item No.2 of the Schedule Property and Appellant, first respondent, and fourth respondent hereby agreed to release and discharge the said Second respondent, Third respondent & Fifth respondent from all claims as to management and administration of the Item No. 2 of the Schedule Property ancillary or incidental thereto as well as all questions as to account and dealings with the Item No. 2 of the Schedule Property.

ii. That the original title deed and mother deed in respect of Item No.2 of the Schedule Property is delivered and handed over to the Second respondent, Third respondent & Fifth respondent by the Appellant, first respondent and Fourth respondent, the Second respondent, Third respondent & Fifth respondent do hereby jointly admit and acknowledges the same.

3. The parties to this Compromise Petition hereby undertake to co-operate and execute all such other documents, papers, applications and petitions, required to effect mutation entries in the records of the Bruhat Bengaluru Mahanagara Palike, in regard to the allotment of Item No.1 to 3 of Schedule property to their names.

4. That this compromise petition itself will constitute as 'No Objection for transfer of Khatha, all revenue entries etc, in respect of the shares allotted to each of the Parties herein and they have no objections to transfer of meter deposits before the BESCOM & BWSSB Authorities to the name respective owners.

5. That the appellant and the respondents herein withdraw all their allegations made against each other.

6. That the parties to this compromise petition shall hold, own, and possess & use Item No 1 to 3 of the Schedule Property allotted to their share without interferences, disturbances & obstructions and the parties are at liberty to enjoy as full & absolute owner in respect of their share allotted under this compromise petition.

7. That this compromise petition shall not be reopened nor challenged under any circumstances by reason of any error or omission whatsoever, but the parties shall execute and register such further deed or writings as may be necessary to rectify the error or errors or implement the omission or commissions.

WHEREOF the appellant and respondents respectfully pray that this Hon'ble Court may be pleased to pass an order or decree in terms of the compromise petition in the interest of justice."

2. The aforesaid Compromise Petition filed by both

the parties is placed on record. Being satisfied with the same,

the appeal is disposed of in terms of the said Compromise

Petition by modifying the impugned judgment and decree

dated 11.06.2019 in O.S.No.7372/2008 passed by the trial

court and substituting the same with the terms and conditions

of the said Compromise Petition.

3. Consequent upon disposal of this appeal pursuant to

the joint compromise petition, the Trial Court is directed to

dispose of FDP No.47/2014 in terms of the joint compromise

petition and judgment and decree passed by the Trial Court.

Registry to draw up decree accordingly.