Karnataka High Court
Sri. B Y Lokesh vs Smt Shivamma on 14 February, 2023
Bench: H.P.Sandesh
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RSA No. 1806 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1806 OF 2022 (PAR)
BETWEEN:
1. SRI. B.Y. LOKESH
S/O B.S. YATHISHWARA
AGED ABOUT 26 YEARS
R/O BISALEHALLI VILLAGE AND POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577 548.
...APPELLANT
(BY SRI AZRA J. DUNDGE, ADVOCATE FOR
SRI GURURAJ R., ADVOCATE)
AND:
1. SMT. SHIVAMMA
W/O LATE B.S. SHIVANNA
Digitally signed
by SHARANYA T AGED ABOUT 65 YEARS
Location: HIGH R/O BISALEHALLI VILLAGE
COURT OF BISALEHALLI POST,
KARNATAKA
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577 548.
SMT. GOWRAMMA
SINCE DEAD BY LRS
2. SRI PARASHIVAMURTHY B.S.
S/O B. SHANTHAVEERE GOWDA
AGED ABOUT 44 YEARS
R/O BISALEHALLI VILLAGE
BISALEHALLI POST
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RSA No. 1806 of 2022
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
3. SMT. USHA
W/O YATHESHWARA B.S.
AGED ABOUT 42 YEARS
R/O BISALEHALLI VILLAGE
BISALEHALLI POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
4. SMT. RAMAMMA
D/O LATE SHANKARAPPA
AGED ABOUT 65 YEARS
R/O BISALEHALLI VILLAGE
BISALEHALLI POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
5. SMT. S. NAGARATHNA
W/O LATE B.S. JAGADEESHAPPA
AGED ABOUT 55 YEARS
R/O. BISALEHALLI VILLAGE
BISALEHALLI POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
6. SMT B.J.ASHA
W/O LATE B.S. JAGADEESHAPPA
AGED ABOUT 29 YEARS
R/O BISALEHALLI VILLAGE
BISALEHALLI POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
7. SRI B.J.AVINASH
S/O LATE B.S.JAGADEESHAPPA
AGED ABOUT 27 YEARS
R/O BISALEHALLI VILLAGE
BISALEHALLI POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
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RSA No. 1806 of 2022
8. SRI B.S. YATHESHWARA
S/O LATE B.S. SHIVANNA
AGED ABOUT 47 YEARS
R/O BISALEHALLI VILLAGE
BISALEHALLI POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
9. SMT. SHARADAMMA
W/O B. CHANDRASHEKHARAPPA
AGED ABOUT 57 YEARS
R/O BANDIKOPPALU VILLAGE
PATTANGERE POST
KASABA HOBLI, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
10. SRI SYED IQUBAL
S/O SYED UMMAR
AGED ABOUT 52 YEARS
R/O B.K. BOUNDARY
EMMEDODDI ROAD
KADUR TOWN, KADUR TALUK
CHIKKAMAGALURU DISTRICT-577548.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 11.10.2022
PASSED IN R.A.NO.22/2022 ON THE FILE OF THE PRINCIPAL
JUDGE, (DISTRICT AND SESSIONS JUDGE), FAMILY COURT,
CHIKKAMAGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.08.2022
PASSED IN O.S.NO.46/2012 ON THE FILE OF THE SENIOR
CIVIL JUDGE, KADUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellant.
RSA No. 1806 of 2022
2. The factual matrix of the case of the plaintiff before
the Trial Court is that one Shankarappa was the propositus of
the joint family, he has got 4 sons namely, Shivanna, husband
of first defendant and father of fifth defendant, Chikkabasappa
died without marriage, B.S. Yathishwara-fifth defendant and
father of the plaintiff, 3 daughters namely, Gowramma-second
defendant, Ramamma-third defendant and Sharadamma-sixth
defendant. The family of Shankarappa was undivided till 1991,
in the said year, the husband of first defendant and fifth
defendant have filed a suit for partition in O.S.No.486/1991
against defendant Nos.2 to4 and 6 for the relief of partition and
on the assurance of the said defendants that they will settle the
matter, defendant Nos.1 and 5 filed a memo and got dismissed
the suit by stating that they will settle the matter out of Court,
but the defendant Nos.2 to 4 and 6 have not settled the matter
as compromised by them. It is further submitted that the
property bearing Sy.No.271, New No.363, measuring 4 acres
has been left, since the said property belonged to the
Government and the Government granted the said property in
favour of Nirvanappa, S/o. Ningappa under dharkasth through
grant certificate dated 28.08.1957 and it is the self-acquired
RSA No. 1806 of 2022
property of Nirvanappa and later, he bequeathed 2 acres, out
of 4 acres in favour of the grand-father of plaintiff through a
registered Will dated 02.12.1965, out of which Shivanna, the
grand-father of plaintiff sold 0.04 guntas and was in possession
of remaining 1 acre, 36 guntas in Sy.No.363, Old No.271, in
which the plaintiff has got right. It is further submitted that,
there was oral partition in the year 1980 and in the said
partition, there was unfair division of 1 acre, 36 guntas of land
and thereafter, the fifth defendant, who is the father of plaintiff
filed a suit in O.S.No.89/2004 against defendant Nos.1 to 4 and
5 for the relief of partition and separate possession as the oral
partition is unfair and not in accordance with law. But, after
filing the said suit, the fifth defendant was suffering from heart
ailment and taking undue advantage of the said fact, the
defendant Nos.1 to 4 and 6 have shown interest in
compromising the suit and the fifth defendant under the heavy
dosage of tablets was not able to understand the actual things
and he put signature to the compromise petition without
verifying the contents and the said suit was compromised on
15.07.2006 in a fraudulent manner, hence the said decree is
not binding on plaintiff, since it is unlawful and illegal. The
RSA No. 1806 of 2022
property bearing Old Sy.No.271, New Sy.No.363 is a joint
family property and the plaintiff has got right in the said
property and at the time of obtaining the said compromise
decree, the plaintiff was minor and there was galata between
fifth defendant and his mother and now the plaintiff and his
mother are residing separately and they are struggling to earn
their day to day bread and meals and even they have no
money to pay the requisite Court fee, hence they have filed a
C. Misc. Petition No.1/2009 and the same was allowed.
3. In pursuance of the suit summons, defendant No.4
appeared and filed the written statement admitting the
relationship and also the fact that earlier a suit was filed in
O.S.No.89/2004 and the said suit came to be compromised
before the lok-adalath and share was allotted as per the said
compromise decree. Hence, the plaintiff has no right to
question the said decree. It is contended that the plaintiff and
fifth defendant by colluding together filed this suit. The
defendant No.2 filed the written statement admitting the
relationship but, denied the other averments. The defendant
No.5 also filed the written statement which is adopted by
RSA No. 1806 of 2022
defendant No.1 by filing a memo and contended that they have
also got right of share in the suit schedule properties.
4. Based on the pleadings of the parties, the Trial
Court has framed the issues with regard to the partition of the
year 1980 whether the property bearing Sy.No.271 (New
Sy.No.363) was unfairly divided and whether the compromise
decree is a fraudulent decree and also framed an issue with
regard to limitation. The Trial Court, on re-apprecaition of both
oral and documentary evidence placed on record, answered all
the issues as 'negative'.
5. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.22/2022 and the First
Appellate Court, on re-appreciation of both oral and
documentary evidence placed on record, dismissed the appeal
in coming to the conclusion that the Trial Court has not
committed any error in coming to the conclusion that the
compromise decree is valid and legal. Being aggrieved by the
judgment and decree of dismissal and confirmation, the present
second appeal is filed.
RSA No. 1806 of 2022
6. Learned counsel appearing for the appellant would
vehemently contend that this appellant was minor at the time
of his father entering into a compromise and taking advantage
of health condition of the father of the plaintiff, a compromise
decree was entered and the same is on account of fraudulent
act of the parties. The counsel would submit that the
substantial questions of law that arises before this Court are
that whether both the Courts committed an error in coming to
the conclusion that the plaintiff is not entitled for the share in
the suit schedule properties and whether the compromise
decree was obtained by playing fraud and hence, this Court has
to admit the appeal and frame substantial questions of law.
7. Having heard the learned counsel for the appellant
and also on perusal of the material available on record, there is
no dispute with regard to the relationship between the parties
and also no dispute with regard to the fact that there was
already a partition in the year 1980 between the father of the
plaintiff and his brothers. It is also not in dispute that
subsequently, when the suit was filed, the father of the plaintiff
and his brothers entered into a compromise. It is also evident
from the records that, subsequent to the compromise entered
RSA No. 1806 of 2022
into between the parties, the parties have acted upon and
father of the plaintiff has sold some of the property. When
such being the case, the very contention of the learned counsel
for the appellant-plaintiff that the said decree is a fraudulent
decree cannot be accepted and both the Courts have taken
note of the material on record and comes to the conclusion that
compromise was entered into before lok-adalath and parties
have acted upon in terms of the compromise and based on the
said compromise decree also, some of the portion of the
property was also sold. When such being the material on
record, the very contention that the judgment and decree
obtained is a fraudulent decree cannot be accepted. Hence, I
do not find any error committed by the Trial Court as well as
the First Appellate Court in appreciating both oral and
documentary evidence placed on record and the First Appellate
Court also, in detail discussed with regard to the material on
record and formulated the points with regard to whether the
compromise decree in O.S.No.89/2004 is on account of fraud
as contended and the Court also comes to the conclusion that
the same is not on account of fraud and the very allegation of
fraud has not been proved by the plaintiff. When such finding
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RSA No. 1806 of 2022
is given by the First Appellate Court and particularly in Para
Nos.20 and 21 comes to the conclusion that plaintiff has no
locus-standi to file the suit and to challenge the compromise
decree and the father, who is the party to the said compromise
has not challenged the same. When such reasoning is given by
the First Appellate Court and First Appellate Court re-
appreciated the material on record, I do not find any ground to
admit the appeal and frame substantial question of law
invoking Section 100 of C.P.C.
8. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
ST
