Karnataka High Court

Gajanan Narayan Bhanderi vs Vimala W/O. Parameshwar Bhandari on 12 January, 2023

Bench: M.G.S. Kamal

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                                 RSA No. 100410 of 2015


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 12TH DAY OF JANUARY, 2023

                         BEFORE

           THE HON'BLE MR JUSTICE M.G.S. KAMAL

 REGULAR SECOND APPEAL NO. 100410 OF 2015 (DEC/INJ)

BETWEEN:

1.    GAJANAN NARAYAN BHANDERI,
      AGE:45 YEARS, OCC: RYOT,
      R/O. H NO. 508, NAJAGAR,
      KELAGINUR GRAM, KELAGINUR POST,
      TQ:HONNAVA, DIST: KARWAR-581421.

2.    MANJUNATH NARAYAN BHANDERI,
      AGE: 43 YEARS, OCC: RYOT
      R/O. H NO. 508, NAJAGAR,
      KELAGINUR BRAM, KELAGINUR POST,
      TQ: HONNAVAR, DIST: KARWAR-581421.

3.    SHANKAR NARAYAN BHANDARI
      AGE: 39 YEARS, OCC: RYOT,
      R/O. H NO. 508, NAJAGAR,
      KELAGINUR BRAM, KELAGINUR POST,
      TQ: HONNAVAR, DIST: KARWAR-581421.
                                             ...APPELLANTS
(BY SRI. S.V.YAJI AND SRI. N.V.YAJI, ADVOCATES)

AND:

      VIMALA W/O. PARAMESHWAR BHANDARI,
      AGE: 48 YEARS, OCC: RYOT
      R/O. H NO. 366, NAJAGAR,
      KELAGINUR GRAM, KELAGINUR POST,
      TQ:HONNAVAR, DIST: KARWAR-581421.
                                            ...RESPONDENT
(BY SRI. V.G.BHAT, ADVOCATE)
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                                   RSA No. 100410 of 2015




      THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT & DECREE DTD:16.04.2015 PASSED
IN R.A.NO.11/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HONAVAR, DISMISSING THE APPEAL, AND CONFIRMING THE
JUDGMENT AND DECREE DTD:31.01.2012 PASSED IN
O.S.NO.30/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
HONAVAR.

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

                        JUDGMENT

The parties are present before this Court duly

represented by their respective learned counsel.

2. The present regular second appeal is filed by

the defendants being aggrieved by the judgment and

order dated 16.04.2015 passed in R.A.No.11/2012 on the

file of the Senior Civil Judge, Honavar (hereinafter referred

to as the 'First Appellate Court'), in and by which the First

Appellant Court while dismissing the appeal had confirmed

the judgment and decree passed in O.S.No.30/2009 dated

31.01.2012 on the file of the Principal Civil Judge, Honavar

(hereinafter referred to as the 'Trial Court') which was filed

RSA No. 100410 of 2015

by the respondent herein for relief of partition, declaration

and injunction.

3. Parties have filed a compromise petition under

Order XXIII Rule 1 of the Code of Civil Procedure amicably

resolving the matter. The terms of the compromise as

entered into between the parties are extracted hereunder:

"COMPROMISE PETITION FILED UNDER ORDER 23 RULE 1 OF CODE OF CIVIL PROCEDURE

Herein parties to the appeal having amicably settled the dispute, submitting this compromise petition as under:

1) The respondent No.1 has filed O.S No.30/2009 for the relief of partition and separate possession of suit scheduled properties before the court of Principal Civil Judge Honnavar, the said suit came to be decreed on 31/01/2012. The appellants herein who are defendants before the trial court have preferred R.A No.11/2012 before the court of Senior Civil Judge Honnavar. The said appeal came to be dismissed on 16/04/2015 by confirming the judgment and decree passed by the Trial court. The appellants preferred this Regular second Appeal against the judgment and decree passed by the courts below.

2) Out of the suit properties the following properties are only open for partition as on today.

a) Survey no.302 totally measuring 2 Acres 4 Guntas out of which 1 acre 5 guntas situated at Kelaginuru village Honnavar Taluk.

b) Survey no.299/18E totally measuring 07 guntas situated at Kelaginuru village Honnavar Taluk.

c) Survey no.299/18F totally measuring 04 guntas situated at Kelaginuru village Honnavar Taluk.

In these properties dilapidated houses and some structures are existing as on today.

RSA No. 100410 of 2015

3) This settlement in between the parties is voluntarily entered on following terms and conditions.

I) Property allotted to appellant no.1 that is Gajanan/Narayan Bhandari in survey no.302 totally measuring 45 guntas the portion marked in the accompanied hand sketch map as 'A' measuring 15 guntas 5 ane.

II) Property allotted to appellant no.2 that is Manjunath Narayan Bhandari in survey no.302 totally measuring 45 guntas the portion marked in the accompanied hand sketch map as 'C' measuring 14 guntas 6 ane. And in survey no.299/18F totally 04 guntas the portion marked in the accompanied hand sketch map as 'D' measuring 1 gunta.

III) Property allotted to appellant no.3 that is Shankar Narayan Bhandari in surveyno.302 totally measuring 45 guntas the portion marked in the accompanied hand sketch map as 'B' measuring 15 guntas 5 ane.

IV) Property allotted to Respondent Vimala wife of ParameshwarBhandriin survey no.299/18E measuring 07 guntas marked in hand sketch map as 'F' measuring 7 guntas and in 299/18F totally measuring 4 guntas the portion of 3 guntas shown as 'E' in the accompanied hand sketch map.

V) It is agreed between the parties that to reach the portion allotted to the respondents and the appellants have agreed to leave 3 feet width pathway in the middle of survey no.302 as shown in the accompanying hand sketch map as 'PQRST.

VI) It is agreed between the properties that the appellants are at liberty to take the water from the well situated in R.S.no.299/18E till they make arrangements for water source or within 1 year whichever is less.

VII) The respective parties have agreed to withdraw all the pendingcriminal cases against each other on the basis of this settlement. The complainants have agreed to co- operate for the closure of criminal cases by submitting a copy of this compromise.

VIII) The parties have agreed to make arrangements for separate electricity connections within 1 year from the date of this settlement.

RSA No. 100410 of 2015

IX) It is hereby agreed by the parties that the houses and structures situated in their respective allotted properties have been allotted to the respective parties.

X) It is agreed between the parties that all the parties have to co- operate for the subdivision of the properties in revenue records and have to bear the expenses equally. It is agreed that the appellants and respondents may jointly or individually file the application before the survey authority to measure the land for the determination of the boundaries in terms of this joint petition and compromise decree. The appellants or the respondents shall not raise any objection to survey the land for fixing the boundaries allotted to share in terms of this compromise decree.

XI) It is agreed between the parties that they will not disturb the possession and peaceful enjoyment of properties allotted others in any manner.

XII) It is agreed between the parties that respective costs of the litigation have to be bar note by respective parties.

XIII) This settlement is binding to the heirs, successors and legal representative of the parties to the proceedings.

Therefore, being voluntarily agreed to all the above noted conditions the parties after reading and understanding the same in their known language pray this Hon'ble Court to draw a final decree in terms of the settlement arrived and noted above, in the ends of justice and equity."

4. A sketch/map has been enclosed along with the

compromise petition defining the areas/portions of the

properties allotted to the appellants and the respondents

respectively. There is also mentioning of 3 feet wide

pathway marked as P,Q,R,S and T connecting the

properties right up to the entrance of the property allotted

RSA No. 100410 of 2015

to respondent. The said pathway is to be used by all for all

time to come.

5. The parties have personally expressed their

understanding and satisfaction with the terms of the

compromise. The terms of the compromise to appear to be