Karnataka High Court

Sri. H Shivaprasanna Kumar vs Dr. H Raja Rajeshwari on 12 December, 2023

Author: S.Sunil Dutt Yadav

Bench: S.Sunil Dutt Yadav

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                                                           RFA No. 100201 of 2017




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                              DATED THIS THE 12TH DAY OF DECEMBER, 2023
                                                 PRESENT
                              THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
                                                   AND
                              THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                             REGULAR FIRST APPEAL NO. 100201 OF 2017 (PAR/DEC)
                      BETWEEN:
                      1.   SRI. H. SHIVAPRASANNA KUMAR,
                           S/O DR. H. MALLIKARJUNAGOUDA,
                           AGE: MAJOR, OCC: CHARTERED ACCOUNTANT
                           AND AGRICULTURE, R/O: BASAVA SADAN,
                           PARVATHINAGAR, TALUR ROAD, BALLARI-587103.

                      2.   SMT. SUBHASHINI W/O. SHIVAPRASANNAKUMAR,
                           AGE: 49 YEARS, OCC: AGRICULTURE AND HOUSEWIFE,
                           R/O: BASAVA SADAN, PARVATHINAGAR,
                           TALUR ROAD, BALLARI-587103.
                                                                 -   APPELLANTS
                      (BY SRI. GIRISH V. BHAT, ADVOCATE)

                      AND:
                      1.   DR. H. RAJA RAJESHWARI W/O. K. RAGHAVENDRA
                           (D/O DR. H. MALLIKARJUNAGOUDA), AGE: 43 YEARS,
                           OCC: DOCTOR, R/O: FBM-98, HAL QUARTERS,
         Digitally
         signed by
                           CENTRAL TOWNSHIP, BENGALURU-37.
         JAGADISH
JAGADISH T R
TR       Date:
         2023.12.14
         13:00:29
         +0530
                      2.   DR. H.MALLIKARJUNA GOUDA S/O LATE LINGANAGOUDA,
                           AGE: 81 YEARS, OCC: RETD. MEDICAL OFFICER,
                           R/O: BASAVA SADAN, PARVATHINAGAR,
                           TALUR ROAD, BALLARI-587103.

                      3.   SMT. JAYABHARATHI W/O. SHRI.SUNIL N.,
                           C/O. DR. H. MALLIKARJUN GOUDA,
                           AGE: 46 YEARS, OCC: HOUSEWIFE,
                           R/O: BASAVA SADAN, PARVATHINAGAR,
                           TALUR ROAD, BALLARI-587103.
                                                               -      RESPONDENTS
                      (BY SRI. Y. LAKSHMIKANT REDDY &
                      SMT. Y. MALATHI REDDY, ADVOCATES FOR R1,
                      SRI. GODE NAGARAJA, ADVOCATE FOR R2 & R3)
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                                        RFA No. 100201 of 2017




     THIS RFA IS FILED U/SEC. 96 OF CIVIL PROCEDURE CODE,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN O.S.NO.
13/2012 DATED 28.03.2017 PASSED BY THE LEARNED 1ST
ADDITIONAL SENIOR CIVIL JUDGE BALLARI & ETC.

     THIS RFA, COMING ON FOR ORDERS, THIS DAY, S.SUNIL
DUTT YADAV J., PASSED THE FOLLOWING:

                             ORDER

Parties are present and they are identified by their

respective counsel. They have filed application under Order 23

Rule 3 CPC reporting compromise. Application contains

memorandum of agreement under Section 89 of CPC r/w Rules

24 and 24 of the Karnataka Civil Procedure (Mediation) Rules,

2007. Terms of settlement has been recorded as follows:

APPLICATION UNDER ORDER XXIII RULE 3 OF CPC

The appellants and the respondents most respectfully jointly submit this compromise petition as under,

1. That, the Respondent No.1/ Plaintiff (Before Trial Court), had filed a suit in O.S No. 13/2012 on the file of Learned 1st Addl. Senior Civil Judge, Ballari seeking partition of the suit schedule proprieties and also seeking declaration to declare that she is entitled to 1/4th share in the suit scheduled properties. That the defendant No. 1 is the father of the plaintiff, defendant No.2 is the brother of the plaintiff, the defendant No.3 is the sister of the plaintiff and the defendant No.4 is the wife of defendant No.2. That the Learned Trial Court after hearing both the sides based on the material placed on record, depositions adduced by the judgement dated

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28.03.2017 decreed the suit declaring the 1/4th share to the plaintiff.

2. That, aggrieved by the judgement passed by the learned Trial Court the defendant No.2 and 4 preferred the Regular First Appeal before this Hon'ble Court in RFA No. 100201/2017.

The defendant No. 2 is the Appellant No. 1 and 4th defendant is Appellant No. 2. That the plaintiff is arrayed as respondent No.1, the defendant No.1 is arrayed as respondent No.2 and the 3rd defendant is arrayed as respondent No.3 in the present appeal.

a. That, during the course of argument it is submitted before this Hon'ble Court that the parties are intending to settle the matter amicably and this Hon'ble Court on request of both the parties referred the matter for mediation by the order dated 23.08.2023 fixing the dated of 1st appearance before the mediation center on 07.09.2023. That after discussions between the parties, the matter has been resolved amicably by dividing the shares. The suit schedule properties by this compromise petition are divided as below.

SHARES ALLOTTED TO RESPECTIVE PARTIES

I. Share allotted to Respondent No.1/Plaintiff's (H. Raja Rajeshwari) a. Share in Schedule 'A' property. As per the plaint item no.3 Sy. No. 41/E measuring 04 Acres 60 cents (Sketch Annexed) Plaintiff's share Ac. 04-60 cents (entire land) bound by On East - Sy. No. 341/A/1 owned by K. Malikarjuna, On West - Sy. No. 41ABCD/1B owned by H. Shivaprasanna Kumar (allotted to Appellant No.1/Deft. No.1), On North Sy. No. 41ABCD/1B owned by H. Shivaprasanna Kumar (allotted to Appellant No.1 / Deft. No.1), On South- Sy. No. 116/1 owned by Narsmha Reddy

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Item no. 4- Sy. No. 88/A measuring 11 Acres 78 cents. (Sketch Annexed) Plaintiff's share Ac. 5-89 cents bound by On East - Sy. No. 96 owned by K. Govindrajalu On West - Sy. No. 84/B stream On North Sy. No. 88/A allotted to the share of Jayabharati @ Bharti (R. 3/ Deft. 3) On South Sy. No. 88/B owned by H.R Madanmohanraj

Share in Schedule 'B' property as per plaint (Sketch Annexed) Immovable property house site having constructed house in T.S No. 12/2A/26/1 measuring 9,464 sq ft. situated within City Municipal Corporation Ballari. Plaintiff's share 21.12 X 112 = 2365 sq ft. (North side) bound by On East - Talur road, On West-T.S No. 12/2A/25 owned by K. Basanagouda, On North - Judicial quarters, On South - Share of Jayabharati @ Bharti (allotted to Res. No.3 / Def No.3)

II. Share allotted to Respondent no.3 / Defendant no.3 (Smt. Jayabharathi @ Bharti) b. Share in Schedule - A property as per plaint Item no. 4- Sy. No. 88/A measuring 11 Acres 78 cents. Defendant no. 3/ respondent no. 3 share Ac. 5- 89 cents bound by On East - Sy. No. 96 owned by K. Govindrajalu, On West - Sy. No. 84/B stream, On North - Sy. No. 89/5owned by Shripada V. Reddy, On South - share allotted to H. Rajarajeshwari (Res. No.1/Ptff)

c. Share in Schedule - B property as per plaint Immovable property house site having constructed house in T.S No. 12/2A/26/1 measuring 9,464 sq ft. situated within City Municipal Corporation Ballari.

Defendant no.3/respondent no. 3 share 21.12 X 112 = 2365 sq ft . bound by

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On East-Talur road, On West-T.S No. 12/2A/25 owned by K. Basanagouda, On North- Share allotted to H. Rajarajeshwari (Res. No.1/Ptff), On South - Share allotted to H. Shivaprasanna Kumar (Applt. No.1/Def. No.2)

III. Share allotted to Appellant No. 1 / Defendant No. 2 (H. Shivaprasanna Kumar) d. Share in Schedule - A property as per plaint. Item no. 2- Sy. No. 41ABCD/1B measuring 18 Acres 40 cents. Defendant no. 2/Appellant no. 1 share Ac. 18-40 (entire land) bound by On East-Sy. No. 341/A/1 owned by K. Malikarjuna, On West-Sy. No. 41ABCD/1A2 owned by H. R. Madanmohan, On North-Sy. No. 41ABCD/2 owned by G. M Shubhashini, On South- Sy. No. 115/1 owned by K Nanekappa, 115/2 owned by Harish Chandra Reddy, 115/3 owned by Sripada V Reddy, 115/4 owned by Durgappaand 115/5 owned by Parashuram

Item no. 5- Sy. No. 93/C measuring 2 Acres 80 cents. Defendant no. 2/appellant no. 1 share Ac. 2-80 (entire land) bound by On East-Sy. No. 95/A owned by H. Shivaprasanna Kumar, On West-Sy. No. 93/C/1 owned by H. R. Madanmohan, On North-Sy. No. 94/B owned by Sudarshan Reddy, On South-Sy. No. 93/D owned by Harish Reddy,

Item no. 6-Sy. No. 95/A measuring 01 Acres 20 cents. Defendant no. 2/appellant no. 1 share Ac. 01-20 (entire land) bound by On East-Sy. No. 98 / A. owned By K Mahanandi On West Sy. No. 93/C owned by H. Shivaprasanna Kumar (Applt No.1/ Deft No.1) On North-Sy. No. 94/B owned by Sudarshan Reddy On South- Sy. No. 95/B owned by Harish Reddy

e. Share in Schedule - B property as per plaint. Immovable property house site having constructed house in T.S No. 12/2A/26/1 measuring 9,464 sq ft. situated within City Municipal Corporation Ballari.

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Defendant no.2/appellant no. 1 share 21.12 X 112= 2365 sq ft. bound by

On East-Talur road, On West-T.S No. 12/2A/25 owned by K. Basanagouda, On North - Share allotted to Jayabharati @ Bharti, (Res. No. 3/ Deft No.3) On South - Share allotted to H. Malikarjuna Gouda (Res. No.2/Deft No.1)

IV. Share allotted to Respondent no. 2 / Defendant No. 1 f. Share in Schedule 'A' property as per plaint. Item no. 1 Sy. No. 41ABCD/C2 measuring 15 Acres 00 cents. Defendant no. 1/Respondent no. 2 share Ac. 15-00 (entire land) bound by On East-Sy. No. 336/a/1a. Owned by T. Ramana Goud, Т. Parameshwara Goud, T. Rajashekar Goud,

On West-Sy. No. 41ABCD/1A2owned by H. R. Madanmohan, On North-Sy. No. 40 Owned By H R Basavana Goud,39/A Jayashree, 39/BOwned By Meganath Reddy, 39/C/1 Owned By Y.Sreenivasa Reddy, On South-Sy. No. 41ABCD/1B allotted to H. Shivaprasanna Kumar (Applt No.1 / deft No. 2)

g. Share in Schedule 'B' property as per plaint. Immovable property house site having constructed house in T.S No. 12/2A/26/1 measuring 9,464 sq ft. situated within City Municipal Corporation Ballari.

Defendant no.1/Res No. 2 share 21.12 X 112=2365 sq ft. bound by On East-Talur road, On West-T.S No. 12/2A/25 owned by K. Basanagouda, On North - Share allotted to H. Shivaprasanna Kumar, On South - T.S No. 12/2A/26/2 owned by Dr. H.R. Basanagouda

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The parties to the compromise petition have also agreed

that,

3. The Shares allotted to Defendant No.1 / Respondent No.2 Dr. H. Mallikarjuna Gouda by his free will and consent and voluntarily agreed that on his death and on the death of his wife Smt. Sumangalamma his share shall go to Appellant No.2 Smt. Subhashini W/o: Shivaprasanna Kumar by this compromise deed along with all the covenants attached to the said properties more fully described above, i.e, Sy. No. 41ABCD/C2 measuring Acres. 15 - 00 cents, and Immovable property house site in T.S No. 12/2A/26/1 totally measuring 9,464 sq ft. situated within City Municipal Corporation Ballari out of which an area measuring 21.12 X 112 = 2365 sq ft. and based on this compromise petition and the decree to be drawn the appellant No.2 from the date of compromise has become absolute owner in possession, enjoyment of the properties allotted to the share of Defendant No.1 Dr. H. Mallikarjun Gouda.

4. That, there is a pump house in land Sy. No. 88/A on the southern side of the said land in the portion allotted to the share of H. Raja Rajeshwari (Plaintiff / Respondent No.1) wherein there are Two pump Sets with capacity of 10HP and 5HP installed for irrigating the said land. And it is hereby agreed by the parties that of the two pump sets the one with the 10HP is allotted to the share of H. Raja Rajeshwari (Plaintiff / Respondent No.1) and the other pump set with capacity of 5HP is allotted to the share of Smt. Jayabharati (Respondent No.3 / Defendant No.3) with all covenants attached to it and Plaintiff / Respondent No.1 shall not cause

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any obstruction to Respondent No.3 in the use and enjoyment of the said pump set installed in the pump house in land Sy. No. 88/A. That, both the parties shall have equal rights to the pump house to use it and also for the purpose of repairs and necessary maintenances.

5. That, on passing of the compromise decree in terms as submitted above by this Hon'ble Court the parties based on the compromise decree are entitled to get their names entered in the concerned revenue and municipal records in respect of the shares allotted as above and the parties to this compromise petition have no any kind of objections what so ever to get their named dully mutated in the concerned property records and in getting the podi, Sub Division of above said property as per the share allotted.

6. Wherefore, the parties hereto to this compromise petition most respectfully pray this Hon'ble court to allow the compromise petition in the above terms and be pleased to direct the registry to draw the decree in accordance, in the interest of justice and equity.

2. Parties submit that they have entered into the

compromise and have understood the terms of the

compromise. Terms of the compromise are not opposed to law.

3. Noticing that the trial court had passed judgment and

decree dated 28.03.2017, the said judgment and decree is to

be substituted by the settlement arrived at as recorded in the

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memorandum of settlement. Accordingly, the appeal is

disposed of in terms of the settlement arrived at as reflected in

the memorandum of agreement.

Decree to be drawn accordingly.

Sd/-