Dr G Jayappa vs Sri C Mahalingappa
2022 Latest Caselaw 9139 Kant

                             1



     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. 1749 OF 2018(PAR)
BETWEEN

1.     DR G JAYAPPA
       SON OF LATE. GURULINGAPPA,
       AGED ABOUT 75 YEARS
       R/AT 3RD CROSS, 1ST MAIN,
       NEAR OXFORD HIGH SCHOOL,
       BASAVESHWARA NAGAR,
       SAVLANGA ROAD,
       SHIMOGA-577 204.

2.     SRI.G.K.SHIVANANDA,
       S/O M.K.GURUMURTHY,
       AGED ABOUT 36 YEARS
       HANCHINA SIDDAPURA VILLAGE,
       BHADRAVATHI TALUK,
       SHIMOGA DISTRICT
       PIN CODE-577 115                       ...APPELLANTS

(BY SRI. P.M. GOPI, ADVOCATE FOR
    SRI. SIDDAMALLAPPA P M, ADVOCATE)

AND

     1. SRI C MAHALINGAPPA
        S/O LATE CHANNAPPA,
        AGED ABOUT 73 YEARS
        R/AT BASAVAPURA VILLAGE,
        KASABA HOBLI,
        CHANNAGIRI TALUK,
        DAVANAGERE DISTRICT
        PIN CODE-577 213
        (SINCE DEAD BY HIS LR)
                                2




1(a)   SMT. ERAMMA
       WIFE OF C. MAHALINGAPPA
       AGED ABOUT 40 YEARS
       RESIDING AT BASAVAPURA VILLAGE
       KASABA HOBLI,
       CHANNAGIRI TALUK,
       DAVANAGERE DISTRICT
       PIN CODE-577 213

2.     SRI.MALLIKARJUNA
       S/O C.MAHALINGAPPA,
       AGED ABOUT 43 YEARS
       R/AT BASAVAPURA VILLAGE,
       KASABA HOBLI,
       CHANNAGIRI TALUK,
       DAVANAGERE DISTRICT
       PIN CODE 577 213

3.     SRI.RENKAPPA
       S/O BASAVARAJAPPA,
       AGED ABOUT 48 YEARS
       R/AT ANAPOOR VILLAGE,
       KASABA HOBLI,
       CHANNAGIRI TALUK,
       DAVANAGERE DISTRICT
       PIN CODE-577 213

4.     KUM.MAHALAKSHMI
       D/O C.MAHALINGAPPA,
       AGED ABOUT 11 YEARS, MINOR,
       REP BY THEIR NATURAL GUARDIAN
       MOTHER SMT. ERAMMA,
       W/O C.MAHALINGAPPA,
       AGED ABOUT 40 YEARS,
       R/AT BASAVAPURA VILLAGE,
       KASABA HOBLI,
       CHANNAGIRI TALUK,
       DAVANAGERE DISTRICT,
       PIN CODE-577 213

5.     KUM.SARASWATHI
       D/O C.MAHALINGAPPA,
       AGED ABOUT 11 YEARS, MINOR,
       REP BY THEIR NATURAL GUARDIAN
                              3



      MOTHER SMT. ERAMMA,
      W/O C.MAHALINGAPPA,
      AGED ABOUT 40 YEARS,
      R/AT BASAVAPURA VILLAGE,
      KASABA HOBLI,
      CHANNAGIRI TALUK,
      DAVANAGERE DISTRICT,
      PIN CODE-577 213
                                          ...RESPONDENTS
(BY SMT. RASHMI JADHAV, ADVOCATE FOR R1(a), R4 & R5)
    - R3 DELETED)

      THIS APPEAL IS FILED UNDER ORDER 41[1] R/W.SEC.96 OF
THE CPC, AGAINST THE JUGMENT AND DECREE DATED 30.08.2018
PASSED IN OS NO.44/2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., CHANNAGIRI DECREEING THE SUIT FOR
PARTITION AND SEPARATION POSSESSION AND ETC.,


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

                        JUDGMENT

This appeal arises out of the impugned judgment and

decree dated 30.08.2018 passed in O.S.No.44/2011 by the

Senior Civil Judge, Channagiri, whereby the aforesaid suit for

partition and separate of the plaintiff's share in the suit

schedule properties filed by respondent No.1, against

respondent No.2 and other defendants was decreed by the

Trial Court. Before the Trial Court, respondent No.1 -

C.Mahalingappa, was the plaintiff, while his son Mallikarjuna

was defendant No.1. So also the daughters of Sri

C.Mahalingappa were arrayed as defendant No.5 and 6, both

of whom were minors and represented by their mother and

natural guardian Smt.Eramma.

2. This appeal is filed by defendants No.2 and 3 who

are said to be purchasers of the suit schedule properties. The

deceased plaintiff is arrayed as respondent No.1 while

defendants No.1, 4, 5 and 6 are arrayed as respondents No.2

to 5.

3. The appellants as well as respondent No.1(a), 2,

respondents No.4 and 5 have filed a joint compromise petition.

As stated supra, respondent No.1 Sri C.Mahalingappa having

expired during the pendency of the appeal, he is represented

by his second wife Smt.Eramma who is brought on record as

his legal representative.

4. The appellants and respondents No.1(a), 2, 4 and 5

have filed a Joint Compromise Petition under Order XXIII Rule

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

the appellants, respondents and their respective counsel who

have duly identified the parties. The parties both the

appellants as well as respondent No.2 and Smt.Eramma-

respondent No.1(a) who herself as well as guardian of minor

respondents No.4 and 5 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 above named Appellants and Respondents beg to submit as follows:

That, the deceased first Respondent was the plaintiff and he filed suit in O.S.No.44/2011 on the file of Senior Civil Judge, Channagiri for the relief of partition and allotment of 1/4th share in the suit schedule properties. The trial court in its judgment and decree dated 30.08.2018 and order to decree the suit and held that the plaintiff / 1st Respondent is entitle for 1/4th share in the suit schedule properties.

Aggrieved by the impugned Judgment and decree the Appellants are before this Hon'ble court with above appeal and challenged the validity of the impugned Judgment and decree to the extent of the portion of the impugned Judgment and decree

passed with respect to the suit schedule item No.3 and 4.

2. It is further submitted that the 1st Respondent died during the pendency of the above appeal and before passing the final decree. The cause of death whatever the vested right on the cause of the impugned Judgment and decree to the extent of the share of the deceased is concern, it revert back to the surviving legal heirs.

3. It is further submitted that the Appellants and Respondents No. 1(a), 2 and 4 to 5 herein at the intervention of the elders of the village and close friends and relatives and their effective conciliation agreed to get an end to the above litigation on the following terms and conditions.

4. It is further submitted that the Respondents herein have hereby ratified the act of execution of a registered sale deed dated: 13.04.2009 executed in favour of 1st Appellant with respect to 3rd item of the suit schedule property by the 2nd Defendant and the 1st Appellant is the absolute owner in possession and that the Respondents have no rights of whatsoever in nature and he is entitled to hold and enjoy the property absolutely and to the extent of the 3rd item of the suit schedule property the impugned judgment

and decree is liable to be set-aside and the suit in O.S. No.44/2011 is liable to be dismissed.

5. It is further submitted that the Respondents herein have hereby ratified the act of execution of a registered sale deed dated 08.06.2015 executed in favour of 2nd Appellant with respect to 4th item of the suit schedule property by the 2 nd Defendant and his wife and minor children and the 2 nd Appellant is the absolute owner in possession and that the Respondents have no rights of whatsoever in nature and he is entitled to hold and enjoy the property absolutely and to the extent of the 4th item of the suit schedule property the impugned Judgment and decree is liable to be set-aside and the suit in O.S.No.44/2011 is liable to be dismissed.

6. The Parties to the appeal agreed to bear their own cost.

WHEREFORE, the Appellants and the Respondents No:1(a), 2 and 4 to 5 are hereby humbly and respectfully pray that this Hon'ble court may kindly be pleased to accept the above compromise and order to allow the appeal and to set-aside the Judgment and decree

dated:30.08.2018, passed in O.S.No.44/2011, passed by the learned Senior Civil Judge, Channagiri and consequentially order to dismiss the suit with respect to the suit schedule properties item No.3 and 4 are concern, in the interest of justice and equity."

4. 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 30.08.2018 in O.S.No.44/2011 passed by the trial court

and substituting the same with the terms and conditions of the

said Compromise Petition.

Registry to draw up decree accordingly.

Sd/-

JUDGE

JT/-

CT:JL