Karnataka High Court

Shri. Suresh Nagappa Gundappagol vs Smt. Ningawwa Ningawwa @ Saroja ... on 7 August, 2023

Bench: C.M.Poonachapresided Bycmpj

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                                                                 NC: 2023:KHC-D:8482
                                                                  RSA No. 100726 of 2017




                                         IN THE HIGH COURT OF KARNATAKA

                                                   DHARWAD BENCH

                                      DATED THIS THE 7TH DAY OF AUGUST, 2023

                                                        BEFORE
                                       THE HON'BLE MR JUSTICE C.M. POONACHA
                                     REGULAR SECOND APPEAL NO. 100726 OF 2017
                              BETWEEN:

                              1.   SHRI. SURESH NAGAPPA GUNDAPPAGOL
                                   AGE:61 YEARS, OCC: AGRICULTURE,
                                   R/O KALLOLI-591224, TALUKA: GOKAK,
                                   DIST: BELAGAVI.

                              2.   SMT. SONA W/O SURESH GUNDAPPAGOL
                                   AGE: 51 YEARS, OCC: AGRICULTURE,
                                   R/O KALLOLI-591224, TALUKA: GOKAK,
                                   DIST: BELAGAVI
                                                                             ...APPELLANTS

                              (BY SRI. SHRIHARSH A. NEELOPANT (NOC), ADVOCATE)
           Digitally signed
           by                 AND:
           SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH
           Date:
           2023.08.10
                                   SMT. NINGAWWA @ SAROJA
           10:34:11 +0530          W/O SURESH GUNDAPPAGOL
                                   SINCE DECEASED BY LEGAL REPRESENTATIVES

                              1.   SMT. JOTHY W/O JAGADISH SANKAPAL
                                   AGE: 35 YEARS, OCC: HOUSEHOLD,
                                   R/O: MUTNAL-416501, TQ: GADHINGALAJ,
                                   DIST: KOLHAPUR, MAHARASHTRA STATE

                              2.   SMT. LAXMI W/O KEDARI CHOPADE
                                   AGE: 35 YEARS, OCC: HOUSEHOLD,
                                   R/O ANKALI-591313, TALUKA: HUKERI,
                                   DIST: BELAGAVI.
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                                   NC: 2023:KHC-D:8482
                                     RSA No. 100726 of 2017




3.    SMT. GEETA W/O ANNASAB DANGE
      AGE: 31 YEARS, OCC: HOUSEHOLD,
      R/O KANAGALA-591225, TQ: HUKERI,
      DIST: BELAGAVI.

4.    SMT. BHARATI W/O SHIVALINGEGOUDA PATIL
      AGE: 29 YEARS, OCC: HOUSEHOLD,
      R/O PATRI BANA SANKESHWAR-591313,
      TALUKA: HUKERI, DIST: BELAGAVI.

5.    SMT. SHRUTI W/O RAMESH COUTKOPPA
      AGE: 24 YEARS, OCC: HOUSEHOLD,
      R/O KALLOLI-591224, TALUKA: GOKAK,
      DIST: BELAGAVI.

6.    THE UNION OF INDIA REPRESENTED BY SECRETARY,
      MINISTRY OF DEFENSE NEW DELHI-100001.

7.    LT.CN.BATTALION COMMANDER 11TH BATTALION
      MADRAS (CHENNAI)-600034.

8.    DISTRICT SAINIK BOARD
      COURT COMPOUND, BELAGAVI-590001.

9.    THE MANAGER
      STATE BANK OF INDIA BRANCH GOKAK-591307,
      DIST: BELAGAVI.

10. BASAVANNI NINGAPPA KALLIMANI,
    AGE: 77 YEARS, OCC: AGRICULTURE,
    R/O SHINDIKURBET-591506, TALUKA: GOKAK,
    DIST: BELAGAVI.

11. MAHADEV BASAVANNI KALLIMANI,
    AGE: 41 YEARS, OCC: AGRICULTURE,
    R/O SHINDIKURBET-591506, TALUKA: GOKAK,
    DIST: BELAGAVI.
                                               ...RESPONDENTS

(BY   SRI. CHETAN T. LIMBIKAI, ADVOCATE FOR R1 TO R5;
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                                   NC: 2023:KHC-D:8482
                                       RSA No. 100726 of 2017




      SRI. B. MUHAMMAD ALI, ADVOCATE FOR R9;
      SRI. P.V. GUNJAL, ADVOCATE FOR R10 AND R11;
      SRI. MRUTYUNJAY TATA BANGI, ADVOCATE FOR R6 AND R7;
      NOTICE TO R8 IS SERVED)

      THIS REGULAR SECOND APPEAL IS FILED U/SEC. 100 OF CPC,
1908, AGAINST THE JUDGMENT AND DECREE DTD: 18.08.2017
PASSED IN R.A. NO. 20/2016 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE GOKAK, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DTD: 22.2.2016 PASSED
IN O.S. NO. 767/2009 IN THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC., GOKAK, ALLOWING THE SUIT FILED FOR DECLARATION
AND PERMANENT INJUCTION.

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


                         JUDGMENT

1. Counsel for the appellants and respondents

have filed a compromise petition duly signed by the

appellant No.1 and 2 as well as respondents No.1 to 5 who

are the legal representatives of the original deceased

plaintiff.

2. The suit filed by the original plaintiff for

declaration and injunction has been decreed by the trial

Court and the appeal filed by the defendants No.1 and 2

NC: 2023:KHC-D:8482 RSA No. 100726 of 2017

who are the present appellants in this second appeal was

also dismissed by the first appellate Court.

3. The substance of the dispute between the

parties is the service benefits accruing in respect of one

Joteppa @ Harish who died in military operations on

25.11.2009. It is forthcoming from the records that the

service benefits is amounting to Rs.35,00,000/-

4. In the compromise petition presented this day,

it is stated at para 8A that appellant No.2 shall receive the

entire service benefits including the terminal benefits,

monthly pension of the deceased Joteppa and the

respondents No.1 to 5, 11 and appellant No.1 have no

objection for the same. The respondents No.1 to 5 who are

the sisters of the deceased are present in the Court and on

being queried as to the nature of the settlement, they are

not aware as to the quantum of service benefits that are

accruing.

NC: 2023:KHC-D:8482 RSA No. 100726 of 2017

5. In view of the aforementioned, the compromise

petition filed by the parties under Order 23 Rule 3 of CPC

is rejected.

6. Subsequently, after rejection of the compromise

petition, at the request of the learned counsels, the matter

was passed over, so as to ascertain from the parties as to

whether they would amicably resolve the matter on

revised terms.

7. Learned counsels from both side, files a

compromise petition under Order 23 Rule 3 which reads as

follows:

"COMPROMISE PETITION UNDER ORDER 23 RULE 3 OF CIVIL PROCEDURE CODE 1908

The Appellants and the Respondents jointly submit that:

1. Ningavva, the mother of Respondents No.1 to 5, wife of Suresh Gundappagol, the original Defendants No. 1 had filed OS No. 767/2009 in the Court of Principal Civil Judge & JMFC Gokak,

to 9 herein, for

A. a declaration that:

i. she is the mother of the deceased Joteppa;

NC: 2023:KHC-D:8482 RSA No. 100726 of 2017

ii. she is the only Class-l legal heir of deceased Joteppa S/o Suresh Gundappagol;

iii. and is hence entitled to the entire for service benefits of the said Joteppa;

B. a permanent injunction restraining Defendant No. 1, Suresh Gundeppagol, from receiving the service benefits of the said deceased Joteppa;

In the said Suit she had contended that she is the legally wedded wife of Appellant No. 1 and that her marriage took place with him on 18 April 1980 and by the said marriage she had given birth to five children and that after the birth of her last child, her husband had started ill-treating her and hence she had left him to reside with her parents.

2. The said suit came to be decreed by Judgment and Decree dated: 22nd Feb 2016 holding that, original deceased plaintiff namely Smt. Ningavva was the mother of deceased Joteppa who was serving in Indian Army who had died on 25th Nov 2009 in service. The trial court further issued a permanent injunction restraining the Appellant No. 1 herein from receiving service benefits of deceased Joteppa.

3. Assailing the said judgment and decree, the present Appellants had preferred R.A. No.20/2016. During the pendency of said Appeal, original Plaintiff, Ningavva expired and in her place Respondents No.1 to 5 herein were brought on record as her legal heirs. In the said Appeal, Respondents No.10 and 11 sought to be impleaded on the ground that the original Plaintiff, Ningavva had executed a WILL in their favour.

4. The said application came to be allowed for a limited purpose of representing the estate of deceased original Plaintiff and that they would have to file a separate suit to claim the service benefits of the deceased Joteppa.

NC: 2023:KHC-D:8482 RSA No. 100726 of 2017

5. The said R.A. No. 20/2016 filed by the Appellants came to be dismissed, thereby confirming the Decree in OS 767/2009.

6. Assailing the said Judgment and Decree the Appellants have preferred this Appeal. In the present appeal, by Order dated: 28th Sept 2022, the appeal as against Respondent No. 10 has abated, with his death;

7. The above appeal was admitted on 07th Mar 2023 and substantial questions of law framed and the Judgment and Decree passed by the Courts below, stayed.

8. In the meanwhile, on the advise of the elders and well wishers, without any threat or coercion, the parties to these proceedings, appreciating that it would be in the interest of the parties herein to receive the terminal benefits from the authorities so that it could be put to the beneficial use of the family, have entered into compromise on the following terms:

a. Appellant 2, Sona shall receive the entire service benefits including terminal benefits, monthly pension etc., of deceased Joteppa (Rank SEP No.2611836F-Military Personnel) who had died in military operations on 25th Nov 2009, out of the terminal benefits respondent No. 1 to 5 are entitled to receive Rs. 3,00,000/- each (three lakhs each), for which the appellant no.1 and 2, respondents no.1 to 5 and respondent no.11 have no objection and they have waived their rights in the residual service benefits of deceased Joteppa.

b. Respondents no. 1 to 5 and respondent no. 11 undertake not to not initiate any case or proceedings or in anyway claim the service benefits of Joteppa in future against the said Sona, Appellant no. 2 herein;

c. The undertakings given herein being made of the own free will of the parties hereto shall be

NC: 2023:KHC-D:8482 RSA No. 100726 of 2017

binding on their heirs, successors and anybody claiming under them.

This Appeal may be disposed of in terms of this Compromise and the judgment and decree passed by the courts below be modified in terms of present compromise.

Place: Dharwad Date: 07th Aug 2023 Sd/-

Mr. Suresh Nagappa Gundappagol

Sd/-

Smt. Sona w/o Suresh Gundappagol

Sd/-

Advocate for the Appellants

Sd/-

Smt. Jothy w/o Jagadish Sankapal Responder No.1

Sd/-

Smt. Laxmi w/o Kedari Chopade Responder No.2

Sd/-

Smt. Geeta w/o Annasab Dange