Karnataka High Court
Sri P Kamesh Murthy vs Smt P Savithri on 8 November, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
-1-
NC: 2024:KHC:45114-DB
RFA No. 1062 of 2017
C/W RFA No. 1039 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1062 OF 2017 (PAR/INJ)
C/W
REGULAR FIRST APPEAL NO. 1039 OF 2017 (RES)
IN RFA No. 1062/2017
BETWEEN:
SRI P KAMESH MURTHY,
S/O. LATE P KRISHNA MURTHY,
AGED ABOUT 64 YEARS,
R/AT 161/E, 3RD CROSS,
JP NAGAR, 3RD PHASE,
BANGALORE-560 078.
AND:
Digitally
signed by 1. SMT. P SAVITHRI,
NANDINI R SINCE DEAD BY LR.,
Location: 1(a) SMT. URTI GYANAMBA,
High Court W/O. SRI U L NARASIMHAM,
of Karnataka AGED ABOUT 73 YEARS,
NO. 513, ANSAL FORTE,
NO. 16/2-A, RUPENA AGRAHARA,
HOSUR ROAD, BANGALORE-560 068.
1(b) SMT. UMA MURTHY,
W/O. SRI M NARASINGA RAO,
AGED ABOUT 69 YEARS,
NO. 43, ENGINEERING COLLEGE ROAD,
STATE BANK COLONY,
ANANTHAPUR-515 001.
-2-
NC: 2024:KHC:45114-DB
RFA No. 1062 of 2017
C/W RFA No. 1039 of 2017
3. SRI P KALAKAR MURTHY,
S/O. LATE P. KRISHNAMURTHY,
AGED ABOUT 72 YEARS,
PLOT NO. 153, BLOCK NO.15,
JEEVAN MITHRA BLOCK,
JP NAGAR, 1ST PHASE,
BANGALORE-560 078.
...RESPONDENTS
(BY SRI N R NAGARAJ & SMT. A.H VANI, ADVOCATES
FOR C/R-1 (a & b) & FOR R-2)
THIS RFA IS FILED UNDER SEC.96 AND ORDER 41 RULE
1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
27.02.2017 PASSED IN OS.NO.8843/2005 ON THE FILE OF THE
VII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
IN RFA NO. 1039/2017
BETWEEN:
SRI P KAMESH MURTHY,
S/O LATE P KRISHNA MURTHY,
AGED ABOUT 53 YEARS,
R/A NO.161/E, 3RD CROSS, J P NAGAR
3RD PHASE, BANGALORE-560 078.
...APPELLANT
(BY SRI SRIDHAR B K, ADVOCATE)
AND:
1. SMT. URITI GYANAMBA,
W/O SRI U L NARASIMHAM,
AGED ABOUT 63 YEARS,
NO.513, ANSAL FORTE,
NO.16/2-A, RUPENA AGRAHARA,
HOSUR ROAD, BANGALORE-560 068.
2. SMT. UMA MURTHY,
W/O SRI M NARASINGA RAO,
AGED ABOUT 59 YEARS,
-3-
NC: 2024:KHC:45114-DB
RFA No. 1062 of 2017
C/W RFA No. 1039 of 2017
NO.43, ENGINEERING COLLEGE ROAD,
STATE BANK COLONY,
ANANTHAPUR-515 001.
...RESPONDENTS
(BY SRI N.R NAGARAJ FOR C/R1 & R2, ADVOCATE)
THIS RFA IS FILED UNDER SEC.96 ORDER 41 RULE 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
27.2.2017 PASSED IN OS NO.9554/2007 ON THE FILE OF THE
VII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
and
HON'BLE MR JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE KRISHNA S DIXIT)
These two appeals arise from a common judgment
and decree dated 27.02.2017 entered by the learned VII
Additional City Civil Judge and Sessions Judge, Bengaluru
(CCH-19), whereby, the appellants' O.S.No.8843/2005
having been dismissed, the respondents'
O.S.No.9554/2007 came to be decreed. A Co-ordinate
Bench of this Court vide order dated 30.08.2024 had said
as under:
NC: 2024:KHC:45114-DB
"Sri. N.R Nagaraj, learned counsel for the
respondents files written submission.
Sri. Sridhar B.K., learned counsel for the appellant
and Sri. N.R. Nagaraj, learned counsel for the
respondents submit that there is a proposal of settling
the matter between the parties. With the consent of both
the advocates, the matters are referred to mediation.
Parties are directed to appear before the Mediation
Centre, Bengaluru on 21.09.2024."
In terms of the above order, the parties appeared
before the Mediation Centre and got the lis amicably
settled in terms of memorandum of settlement sent by the
Mediation Centre with a forwarding letter dated
29.10.2024 to the Registrar General of this Court.
2. Memorandum of settlement filed under Section
89 of CPC read with Rules 24 and 25 of the Karnataka Civil
Procedure Mediation Rules, 2005 is signed by all the
parties. It is also asserted by the learned Advocates
appearing for the parties before us this day. The text of
the memorandum of settlement is as under:
"I. The appellant herein has filed a suit for partition and
separate possession of half share in the suit schedule
property before the Court of VII Additional City Civil and
Sessions Judge, Bengaluru (CCH-19) in O.S.8843/2005.
The said suit was dismissed vide Judgement and decree
dated 27.02.2017. The Appellant herein Challenging the
NC: 2024:KHC:45114-DB
said judgement and decree in O.S. No.8843/2005 Dated
27.02.2017, preferred the above Regular First Appeal
before Hon'ble High Court of Karnataka vide RFA No.
1062/2017.
II. The respondent Nos. 1 and 2 herein filed a suit for
ejectment of suit schedule property against the Appellant
herein before the Court of VII Additional City Civil and
Sessions Judge, Bengaluru (CCH-19) in O.S.9554/2007.
The said suit filed by Smt. Uriti Gyanamba and Smt. Uma
Murthy (Respondents No.1 & 2 in RFA 1039/2017) was
decreed and the trial court directed the Appellant Kamesh
Murthy to vacate the suit schedule property of O.S.
No.9554/2007 within a period of three months, to the
respondents. Further, the appellant Kamesh Murthy was
directed to pay rents at the rate of Rs.5,000/- per month
to the respondent sisters viz. Uriti Gyanamba and Smt.
Uma Murthy from the date of the suit till he vacates.
Aggrieved by the said judgement and decree, the appellant
herein has preferred Regular First Appeal 1039/2017before
the Hon'ble High court of Karnataka.
III. The above said Regular First Appeals were referred to
mediation for resolving the disputes between the parties.
During the course of mediation, the Appellant and the
Respondents along with their Respective counsel have
participated in the mediation and the parties have resolved
their dispute and have agreed to the following terms and
conditions:
1. The appellant herein confirms the title of 50% of the
larger suit schedule property in favour of Sri. Kalakar
Murthy right from The date of the Registered Gift
Deed dated 05.10.2005. Further, the appellant also
confirms that the mother of the parties gifted the
remaining 50% of the larger suit schedule property to
Smt. Uriti Gyanamba and Smt. Uma Murthy together,
through the registered Gift Deed dated 03.01.2006
and both sisters are the absolute owners of the
remaining 50% of the larger suit schedule property
effect from 03.01.2006.
2. The respondent No.2 Sri. Kalakar Murthy in RFA No.
1062/2017 has magnanimously agreed to give part of
his property in value to Kamesh Murthy. But, Sri.
Kamesh Murthy has been enjoying the property of
NC: 2024:KHC:45114-DB
Kalakar Murthy right from October 2005 and
therefore, Sri. Kamesh Murthy agreed to pay a sum
of Rs.5,00,000/- by way of Demand Draft to
Sri.Kalakar Murthy at the time of receipt of Sale
proceeds in respect of the suit schedule property. The
Respondent No.2 Sri. Kalakar Murthy has agreed for
the said proposal.
3. The Appellant herein agrees and undertakes to pay a
sum of Rs.5,00,000/- each to the respondent No.1
and 2 in RFA 1062/2017 towards rental arrears by
way of Demand Draft at the time of receipt of the
sale proceeds in respect of the suit schedule
property.
4. It is agreed between the parties that the entire
property as a whole shall be sold at the market rate
and 25% of the total sale proceeds shall be given to
the appellant Kamesh Murthy who shall abide by the
terms of payment to both Kalakar Murthy and sisters
(Respondent No. 1 and 2 in RFA1039/2017).
5. It is further agreed between the parties that to effect
sale of the suit schedule property, Sri. Kamesh
Murthy shall have to vacate and hand over the entire
property to the custody of Smt. Uriti Gyanamba
within SIXTY DAYS from the date of the orders of
Hon'ble High Court of Karnataka, Bengaluru in terms
of this mediation agreement, who shall arrange to
sell the same to the highest bidder.
6. The respondent No. 1 Smt. Uriti Gyanamba in RFA
No.1039/2017 agrees and undertakes to sell the
entire suit schedule property to Highest bidder within
the maximum limit of three months from date of
vacating the property by appellant Sri. Kamesh
Murthy, subject to the market condition. The 25%
(Twenty five percent) of the total sale proceeds shall
be arranged to be paid to Kamesh Murthy directly
from the purchaser, who shall acknowledge the
same. In the event, if the respondent No. 1, Smt.
Uriti Gyanamba fails to sell the suit schedule property
as agreed, the appellant Kamesh Murthy can execute
the decree towards his 25% of the value suit
schedule property which was given to him by virtue
of this settlement.
NC: 2024:KHC:45114-DB
7. Said Kamesh Murthy shall co-operate in effecting sale
of the suit schedule property and subsequent things
for completing the sale transaction. Sri. Kamesh
Murthy shall furnish the copies of Adhaar card and
also PAN card for the purpose.
IV. The parties further agree that they have no other claims of
whatsoever manner against each other, either past,
present or future.
V. In view of this agreement entered into between the
parties, the parties pray that the Hon'ble High Court of
Karnataka, be pleased to dispose the above Appeal in
terms of this agreement.
VI. The execution petition No.1730/2018 will be withdrawn
unconditionally once Sri Kamesh Murthy JDR vacates and
handover the vacant possession of the suit schedule
property.
VII. The parties shall appear before the Hon'ble High Court of
Karnataka, Bengaluru, for passing necessary orders in
terms of the agreement."
3. Learned counsel appearing for the respondents
has passed on to us a copy of affidavit sworn to by
Sri.P.Kalakar Murthy S/o late P.Krishnamurthy, who
happens to be respondent No.2 in RFA.No.1062/2017
seeking exemption from personal presence before this
Court. The said affidavit has been sworn to at Hyderabad,
Telangana, which reads as under:
"I, P. Kalakar Murty, aged about 80 years, son of late
P.Krishnamurthy, presently residing at B107, NCL-Godavari.
Petbasheerabad, Hyderabad 500067, do hereby state on
oath as under:-
NC: 2024:KHC:45114-DB
1. I am the respondent in RFA 1062/2017, which has
been filed by Sri. Kamesh Murthy impugning the decree
in O.S.8843 of 2005 dated 27.02.2017.
2. I affirm the said RFA had been referred to Mediation
along with connected RFA1039/17 filed by very Kamesh
Murthy against my sisters Smt. Uriti Gyanamba and Smt.
Uma Murthy.
3. I affirm the during the mediation of both the RFAs,
some settlement could be arrived at on 28th October
2024. All of us have affixed our respective signatures to
the mediation agreement made under Section 89 of the
CPC.
4. I affirm that as my daughter is bedridden at United
States of America, I have been compelled to go to the
USA immediately and thus, I am leaving for USA on the
5th of November 2024. Thus, I am practically unable to
be present before the Hon'ble Court during the enquiry
that may be made by this Hon'ble Court for the
confirmation of the Mediation Settlement dated 28th
October 2024.
5. Hence, I do hereby REAFFIRM that I did accept the
mediation settlement dated 28.10.2024 made by the
Mediator in the Mediation Centre of Bangalore between
said Kamesh Murthy and ourselves. I did affix my
signature to the said mediation settlement voluntarily
and consciously.
6. Hence, my personal presence before this Hon'ble
Court during the confirmation of mediation settlement
may kindly be excuse. My sister, Smt. Uriti Gyanamba
shall represent me before the Hon'ble Court in lieu of me
along with our counsel.
I declare that this is my name and signature and the
contents of this affidavit are true to best of my
knowledge and belief."
4. We have perused the contents of the
memorandum of settlement and also the affidavit sworn to
NC: 2024:KHC:45114-DB
by respondent No.1 who has since gone abroad. We have
also heard learned Advocates appearing before the Court
who vouch the authenticity of the contents of the
settlement and also the signature which the parties have
put to the instrument, in which, the settlement is drawn.
Neither we find any reason to doubt the bonafide of the
settlement nor do we find any factual or legal impediment
for accepting the settlement as settling the lis between the
parties once for all and to make it a rule of the Court by
disposing the appeals in terms of settlement. Ordered
accordingly and the appeals are disposed off.
Costs made easy.
Registry to refund the Court Fee to the appellant in
both the appeals in accordance with law.
Any amount deposited by the appellants' in
Ex.P.No.1730/2018 shall also be refunded to the appellant
along with interest, if any, without brooking any delay.
- 10 -
NC: 2024:KHC:45114-DB
Respondent Nos.1 and 2 in RFA.No.1039/2017 who
being the decree holders have levied execution in
Ex.P.No.1730/2018 pending on the file of CCH-19 has
withdrawn the execution petition in terms of the
settlement and therefore, the same is ordered accordingly.
A copy of this order shall be filed in the Executing
Court by the appellants'.
The undertaking given by the learned counsel
appearing for respondent No.1 that the original affidavit of
respondent No.1 shall be filed in the Registry of this Court
along with a memo within two weeks and that the Registry
shall place it as a part of record of the case.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
NR/-
