Karnataka High Court
Sarojamma vs N M Bommaiah on 4 March, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.1794 OF 2007 (SP)
BETWEEN:
1. SAROJAMMA
W/O LATE THIMMAPPA
AGED ABOUT 60 YEARS
2. G.T. RAVINDRANATH
S/O LATE THIMMAPPA
AGED ABOUT 47 YEARS
3. G.T. SURESHBABU
S/O LATE THIMMAPPA
AGED ABOUT 44 YRS
4. NALINA
D/O LATE THIMMAPPA
AGED ABOUT 41 YEARS
5. G.T. JAGADISHA
S/O LATE THIMMAPPA
AGED ABOUT 38 YEARS
6. G.T. MALLIKARJUNA
S/O LATE THIMMAPPA
AGED ABOUT 34 YEARS
ALL ARE R/AT B.G. KERE,
MOLAKALMURU TALUK.
...APPELLANTS
(BY SRI B.K. MANJUNATH, ADVOCATE)
2
AND:
N.M. BOMMAIAH
S/O YAPAKALA MARAIAH
SINCE DEAD REP. BY HIS LRS.,
1(a) B.BASAVARAJU
S/O LATE N.M. BOMMAIAH
AGED ABOUT 24 YEARS
1(b) SMT. PENNAKKA
D/O LATE N.M. BOMMAIAH
AGED ABOUT 45 YEARS
1(c) SMT. CHANDRAMMA
D/O LATE N.M. BOMMAIAH
AGED ABOUT 40 YEARS
ALL ARE RESIDENTS OF
B.G. KERE,
MOLAKALMURU TALUK,
CHITRADURGA DISTRICT.
...RESPONDENTS
(BY SRI. J. PRASHANTH, ADVOCATE FOR RESPONDENT Nos.1(a)
to 1(b);
VIDE COURT ORDER DATED 19.04.2013, SERVICE OF NOTICE
TO RESPONDENT NO.1(c) IS HELD SUFFICIENT
CAUSE TITLE AMENDED AS PER THE COURT ORDER DATED
05.06.2013)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908, AGAINST
THE JUDGMENT AND DECREE DATED 19.04.2007 PASSED IN
R.A.NO.5/2004 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DATED 12.12.2003 PASSED IN
O.S.NO.5/1997 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND
JMFC, MOLAKALMURU.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
This Regular Second Appeal is filed by the
defendants in O.S. No.5/1997 on the file of the Civil Judge
(Jr. Dn.) and JMFC., Molakalmuru, (henceforth referred to
as the 'Trial Court') challenging the Judgment and Decree
passed by the Court of the Civil Judge (Sr. Dn.),
Challakere, (henceforth referred to as the 'First Appellate
Court') in R.A. No.5/2004 by which the suit in O.S.
No.5/1997 was decreed for the relief of specific
performance.
2. The parties shall henceforth be referred to as
they were arrayed before the Trial Court. The appellants
were the defendants. The respondents herein are the legal
representatives of the deceased plaintiff.
3. The defendants are the owners of the land
bearing Sy. No.78/1 of B.G. Kere village, Molakalmuru,
measuring 16 Acres 15 guntas. It is claimed that the father
of the defendants, Sri G. Thimmappa had executed an
agreement of sale dated 15.05.1976 in favour of the
plaintiff and that on failure of the defendants to comply
with their part of the contract, a suit in O.S. No.5/1997
was filed for specific performance. The Trial Court after
considering the oral and documentary evidence on record,
dismissed the suit in terms of the Judgment and Decree
dated 12.12.2003. An appeal preferred by the plaintiff
before the First Appellate Court was allowed and the
defendants were directed to execute a sale deed in favour
of the plaintiff after receiving the balance sale
consideration of Rs.6,000/-.
4. Being aggrieved by the aforesaid Judgment
and Decree of the First Appellate Court, the present
Regular Second Appeal is filed by the defendants.
5. This appeal was admitted on 27.09.2007 to
consider the following substantial question of law:
"Whether the Lower Appellate Court is
justified in allowing the appeal, decreeing the
suit, reversing the Judgment and Decree of the
Trial Court."
6. When the matter was listed for final hearing,
the parties have reported a compromise, the terms of
which are as follows:
"1. The Appellant No.2 is the Power of Attorney
Holder for the other Appellants to go on
with the above case in all respects and also
to compromise the case on their behalf,
vide the General Power of Attorney
executed on 2-11-2021 by them before the
Notary Public Sri.Suresh, Molakalmuru.
Thus this compromise is signed by the
appellant No.1 for himself and on behalf of
the other appellants. Notarised copy of the
said Attorney is enclosed.
2. The Respondent No.1(a) is the Power of
Attorney Holder for the other Respondents
1(b) & (c) to go on with the above case in
all respects and also to compromise the
case on their behalf, vide the Special Power
of Attorney executed on 6-12-2021 by
them. Thus this compromise is signed by
the respondent No.1 for himself and on
behalf of the other respondents. Notarised
copy of the said Attorney is enclosed.
3. The parties have agreed to take the suit
schedule land, bearing Sy.No.78/1,
measuring 16-15 acres of B.G.Kere,
Molakalmuru Kasaba Hobli, as under:
a. The Appellants / defendants 1 to 6
together shall take Southern 8-35
acres out of the entire extent, as
denoted by letters A, B, C, D, E, F,
G & H with measurements in
Meters, as per the enclosed rough
sketch, bounded by East:
Sy.No.79 land of G.Rudramuni &
Basanna, West:Sy.No.81 land of
Jinagu Boraiah, North: Portion of
Sy.No.78/1 of Basavaraj and
South:Sy.No.80 land of
Eshwarappa and Hottajja.
b. The Respondents/plaintiffs 1(a),
(b) & (c) together shall take
Northern 7-20 acres out of the
entire extent, as denoted by letters
E, F, G, H, I & J with
measurements in Meters, as per
the enclosed rough sketch,
including the open well situated on
the south-West corner of 7-20
acres, at the point denoted by the
letter 'G', bounded by East:
Sy.No.79 land of G.Rudramuni &
Basanna, West: Portion of
Sy.No.78/1 land of Sarojamma,
etc., North: Portion of Sy.No.78/2
of Honnurappa and South: Portion
of Sy.No.78/1 land of Sarojamma,
etc.
c. The Appellants and the
Respondents are given possession
of their respective shares as stated
above and the respective parties
shall have all rights to be in
possession and enjoyments of their
respective portions as owners of
the same and they are entitle to
get the revenue records mutated in
their names accordingly, by
producing the decree in the above
case.
d. The parties are entitled to get their
respective portions surveyed as per
law and get the boundaries fixed
accordingly on the basis of their
respective areas, as per law.
e. The enclosed sketch shall form part
of the this compromise petition and
also the decree, which also has
been duly signed by the parties to
the case.
4. That, under the circumstances, the parties
shall bear their own costs."
7. A perusal of the compromise petition would
indicate that out of the total extent of 16 Acres 15 guntas
of land in Sy. No.78/1 of B.G. Kere, Molakalmuru kasaba
hobli, appellants / defendant Nos.1 to 6 shall retain
southern 08 Acres 35 guntas of land while the northern 07
Acre 20 guntas of land shall be taken by the legal
representatives of the deceased plaintiff and appropriate
sale deed would be executed by the defendants in favour
of the legal representatives of deceased plaintiff /
respondent Nos.1(a) to 1(c) in respect of 07 acres 20
guntas of land in Sy. No.78/1. Since the legal
representatives of the deceased plaintiff as well as the
defendants are benefitting from the compromise and as
the compromise is just and fair, the same is accepted.
8. Appellant No.2 is present in person and
submits that the appellant Nos.1, 3 and 4 to 6 have
authorized him to admit / accept the compromise petition.
A copy of the power of attorney is also enclosed along with
the compromise petition. Likewise, respondent No.1(a) is
present in person and claims that respondent Nos.1(b) and
1(c) have authorized him to accept the compromise. Copy
of power of attorney is also enclosed along with the
compromise petition. The parties acknowledge the terms
of the compromise and agree to be bound by the same.
The parties in token of their acceptance of the terms of the
compromise, have affixed their signatures to the order
sheet maintained by this Court.
9. In view of the aforesaid compromise, the
impugned Judgment and Decree dated 19.04.2007 passed
by the First Appellate Court in R.A. No.5/2004 is modified
and it is declared that the legal representatives of the
deceased plaintiff / respondent Nos.1(a) to 1(c) are
entitled to specific performance to an extent of 07 Acres
20 guntas in Sy. No.78/1 of B.G. Kere village,
Molakalmuru. As a consequence, the defendants shall be
the owners of the remaining land in Sy.No.78/1 of
B.G.Kere, Molkalmuru, measuring 08 Acres 35 guntas.
This Regular Second Appeal stands disposed off in
terms of the Compromise Petition.
Office to draw a decree in terms of the Compromise
Petition.
Sd/-
JUDGE
sma
