Karnataka High Court

Surekha W/O Neminath Akkannavar vs Neminath Tavanappa Akkannavar on 26 June, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                                    NC: 2024:KHC-D:8693
                                                                     RFA No. 100046 of 2021




                                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                                         DATED THIS THE 26TH DAY OF JUNE, 2024
                                                        BEFORE
                                     THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                                   REGULAR FIRST APPEAL NO.100046 OF 2021 (PAR/POS)
                              BETWEEN:

                              SMT. SUREKHA
                              W/O NEMINATH AKKANNAVAR,
                              AGE: 48 YEARS,
                              OCC: HOUSEHOLD WORK,
                              R/O: BASTWAD (HALAGA)-591150,
                              TAL: AND DIST: BELAGAVI.
                                                                                ... APPELLANT
                              (BY SMT. P.G. NAIK, ADVOCATE)

                              AND:

                              1.    SHRI. NEMINATH TAVANAPPA AKKANNAVAR,
                                    AGE: 50 YEARS, OCC: AGRICULTURE,
                                    R/O: PATAGUNDI-591312,
                                    TQ: GOKAK, DIST: BELAGAVI,
                                    NOW AT GUDAS-591306,
                                    TQ: HUKERI, DIST: BELAGAVI.

                              2.    SMT. KUSUMAVATI
           Digitally signed
                                    W/O TAVANAPPA AKKANNAVAR,
           by BHARATHI
           HM
           Location: HIGH
                                    AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
           COURT OF
BHARATHI
HM
           KARNATAKA
           DHARWAD
           BENCH
                                    R/O: PATAGUNDI-591312,
           Date:
           2024.07.05
           12:13:53
                                    TQ: GOKAK, DIST: BELAGAVI,
           +0530
                                    NOW AT GUDAS-591306,
                                    TQ: HUKERI, DIST: BELAGAVI.

                              3.    SHRI. SANTOSH
                                    S/O NEMINATH AKKANNAVAR,
                                    AGE: 25 YEARS, OCC: STUDENT,
                                    R/O: BASTWAD (HALAGA)-591150,
                                    TAL: AND DIST: BELAGAVI.
                                                                        ... RESPONDENTS
                              (BY R1-DECEASED;
                               SRI ABHILASH HANAMANNAVAR, ADVOCATE FOR R2;
                               SMT. POOJA A. PATIL, ADVOCATE FOR R3)
                                 -2-
                                      NC: 2024:KHC-D:8693
                                        RFA No. 100046 of 2021




      THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE(1) READ WITH SECTION 96 OF CODE OF CIVIL PROCEDURE,
1908, PRAYING TO THE JUDGMENT AND DECREE DATED 16.03.2020
PASSED IN O.S.NO.420/2018 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, GOKAK, SET-ASIDE AND BY AWARDING THE
LEGITIMATE SHARE OF THE PLANTIFF NO.2-APPELLANT IN SUIT
PROPERTIES, IN THE INTEREST OF JUSTICE AND EQUITY.

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

                             ORDER

Heard learned counsel for the appellant Smt.P.G.Naik and

learned counsel for the 2nd respondent Sri Abhilash

Hanammannavar and learned counsel Smt. Pooja A. Patil

appearing for respondent No.3.

2. This present appeal is preferred by plaintiff No.2

challenging the Judgment and Decree passed by the 1st

Additional Senior Civil Judge, Gokak (for short, 'the trial Court')

in O.S.No.420/2018. The appellant herein and respondent No.3

were plaintiffs before the trial Court. Respondent No.1 and 2

herein were defendants. Plaintiffs filed the suit for partition and

separate possession in respect of suit properties bearing

Sy.No.154/5 (Old No.154/3) and 154/7 (old No.154/5A) of

Patagundi village of Gokak taluka now Mudalagi taluka and

sought for her share in accordance with law. The suit filed by

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the plaintiffs came to be decreed partly holding that plaintiff

No.1 is entitled for 1/10th share i.e., 1/2 in 1/5th share of

defendant No.1 only, whereas claim of plaintiff No.2 came to be

rejected. Hence, the 2nd plaintiff is before this Court in this

appeal.

3. Learned counsel for respondent No.1 and 2 file an

application under Order III rule 2 of CPC to appoint the

petitioner No.1 as a power of attorney holder to act on behalf of

petitioner No.2, who is aged about 70 years who is none other

than the mother of respondent No.1. The application is not

objected by the learned counsel for appellant/plaintiff No.2.

Same is allowed. Respondent No.1 is hereby permitted to act

as a GPA holder of respondent No.2.

4. During pendency of the appeal, parties were referred

to Mediation Center by this Court vide order dated 29.01.2024.

Parties appeared before the Mediation Center on several dates

of hearing and finally to put an end to their long drawn

litigation and to gain peace and live amicably, they settled their

matter before the Mediation Center by entering into a

Memorandum of Agreement under Section 89 of the Code of

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Civil Procedure and Rules 24 and 25 of the Karnataka Civil

Procedure (Mediation) Rules, 2007 and a settlement was

reached by executing a compromise petition under Order XXIII

Rule-1 of CPC before the Mediation Center and the same is

accepted by the Mediation Centre. The terms and conditions of

the said compromise petition reads as under :

"1. The Respondent No.1 has agreed to hand over the Demand Draft No.038611 drawn on Belgaum District Credit Co-operative Bank Limited, Belgaum, Gudas Branch, for an amount of Rs.2,50,000/- in full and final settlement of her claim towards maintenance as a permanent alimony, before the open court the appellant has agreed and received the said Demand Draft and she has also agreed that same amount is towards permanent alimony in full and final settlement of her claim. She has also agreed not to claim any maintenance in future. The first respondent has also agreed not to claim any maintenance from the appellant.

2. In view of the settlement between the parties, the appellant and the first respondent has already filed joint petition for mutual divorce, before the Family Court at Belagavi, in M.C.168/2024 and the said matter has now reached the stage of evidence and both have agreed that the dissolution of their marriage by mutual consent and they also agreed not to make any claim against each other and they also agreed to produce the copy of this compromise petition before the family Court Belagavi and seek for the disposal of the case at the earliest.

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3. It is agreed that the appellant No 1-Smt Surekha is entitled for 21 gunta 8 annas in R.S.No.154/3 and presently bearing R.S.No.154/5 i.e suit item No 1, more detailedly shown by letters "abcd".

4. It is agreed that third respondent-Santosh Neminath Akkannavar is entitled for 17 gunta 14 annas in R.S. No.154/5A presently bearing No.154/7 i.e the suit schedule No.2, more particularly shown by letters "ghij" in the hand sketch accompanied to this compromise.

5. It is agreed that first respondent-Neminath Akkannavar is entitled for 19 gunta 10 annas in R.S. No.154/5A presently bearing No.154/7 i.e the suit schedule No.2, more particularly shown by letters "ijkl" in the hand sketch accompanied to this compromise.

6. It is agreed that second respondent-Smt. Kusumavathi Tavanappa Akkannavar is entitled for 21 gunta 8 annas in R.S.No.154/3 and presently bearing R.S.No.154/5 i.e suit item NO.1, more detailedly shown by letters "cdef and the land to an extent of 37 guntas 8 annas, in R.S. No.154/5A presently bearing No.154/7 i.e the suit schedule No.2, more particularly shown by letters "klmn" in the hand sketch accompanied to this compromise.

7. The hand sketch accompanied to this compromise is the part and parcel of this compromise also and the parties have mutually agreed enter their respective names in the revenue and survey records, at their cost and they also agreed to co-operate each and agreed not to further

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litigate the matter. They also agreed to report this settlement in the RTS proceedings also.

8. There are two borewells situated in both the suit item No.1 and 2 and the borewell situated at western side shall be used by the appellant and the respondent No.3 exclusively and the respondent No.1 and 2 shall use the borewell situated on the eastern side, exclusively. However they at liberty to agree mutually upon the usage of the waters from the both bore wells to suit their convenience.

9. It is mutually agreed between the parties not to further litigate the matter.

10. The above contents and terms of settlement are agreed to by both the parties voluntarily, happily and without any force or coercion by anybody.

11. The Parties will appear on 26/06/2024 at 2:30 Pm before the Hon'ble Court for passing Orders/Decree in terms of the above said agreement."

5. Today parties are present before this Court. They are

represented by their respective counsels on record, who

identify their presence. In accordance to the terms and

conditions of the compromise petition entered into by the

parties, respondent No.1 hereby hands over a demand draft of

Rs.2,50,000/- in favour of the appellant/plaintiff No.2 in the

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open Court. The same would however be subject to realization.

She has accepted the said demand draft in the open Court and

the appellant is identified by her counsel on record who is also

present before the Court. The Court has enquired with the

parties who are present with regard to the terms and conditions

stipulated in the compromise petition agreed to before the

Mediation Center. They agree to have entered into the

compromise petition and the execution of the compromise

petition and they affixed their signatures to the compromise

petition voluntarily. They also submit that the same is executed

and signed by them without any kind of force, coercion or

undue influence and they would act in accordance to the terms

and conditions of the compromise petition. The compromise

petition is also annexed along with a sketch showing the

property allotted to the appellant herein, which is described as

'abcd' in the sketch in (old Sy.No.154/3) presently shown as

Sy.No.154/5 in suit schedule item No.1.

6. By virtue of this compromise petition, the appellant

has agreed to receive amount of Rs.2,50,000/- paid herein

today which shall be full and final settlement towards her claim

for maintenance/permanent alimony and she would not make

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any further claim for future maintenance or alimony against

respondent No.1 and the petition filed by the appellant before

the Family Court at Belagavi in M.C.No.168/2024 would have to

be disposed of in view of the compromise entered into by the

parties before the Mediation Centre, which is recorded by this

Court today in the presence of the parties.

7. Also in view of the compromise entered into today, the

agricultural land bearing Sy.No.154/5, measuring 21 guntas 08

annas in suit schedule item No.1 shall be mutated in the name

of appellant-Smt.Surekha W/o. Neminath Akkannavar on

production of the Judgment of this Court before the revenue

authorities. The possession of the said land shall be handed

over to the appellant-Smt.Surekha on or before 15th July, 2024

without venturing into any kind of further encumbrance or

litigation or changing the nature of suit property.

8. In view of the above stated compromise petition

executed and entered into by the parties, who were present

before the Mediation Centre and who are present before the

Court, the impugned Judgment and Decree dated 16.03.2020

passed in O.S.No.420/2018 by the I Additional Senior Civil

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Judge, Gokak requires to be modified. Accordingly, I pass the

following:

ORDER

(i) Appeal is disposed of.

(ii) The Judgment and Decree dated 16.03.2020 passed by the Court of I Additional Senior Civil Judge, Gokak in O.S.No.420/2018 is hereby modified in accordance to the compromise petition entered into by the parties.