Karnataka High Court
Sri Praveen Annasaheb Gijavani vs Sri Appasaheb Bharmappa Gijavani on 12 August, 2025
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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RFA No. 100143 of 2022
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 12TH DAY OF AUGUST 2025
PRESENT
THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR FIRST APPEAL NO. 100143 OF 2022 (DEC/PAR-)
BETWEEN:
SRI. PRAVEEN ANNASAHEB GIJAVANI,
AGE: 21 YEARS, OCC: STUDENT,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
...APPELLANT
(BY SRI. H.R. DESHPANDE, ADVOCATE)
AND:
1. SRI. APPASAHEB BHARMAPPA GIJAVANI,
AGE: 68 YEARS, OCC: AT PRESENT NIL,
YASHAVANT
NARAYANKAR R/O. PLOT NO.8, R.S. NO.694/2,
SHIVADEEP COLONY, RANI CHANNAMMA NAGAR,
Digitally signed by
YASHAVANT
NARAYANKAR
BELAGAVI-590008, DIST: BELAGAVI.
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
DHARWAD
2. SRI. ANNASAHEB BHARMAPPA GIJAVANI,
AGE: 54 YEARS, OCC: AT PRESENT NIL,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
3. SMT. SHEELA W/O. ANNASAHEB GIJAVANI,
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
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RFA No. 100143 of 2022
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4. SMT. ROHINI W/O. AMOL NARASHETTI,
AGE: 29 YEARS, OCC: HOUSEHOLD WORK,
R/O. BORAGAON VILLAGE-591 216,
TQ: CHIKKODI, DIST: BELAGAVI.
5. SRI. PRADEEP ANNASAHEB GIJAVANI,
AGE: 25 YEARS, AGRICULTURE & BUSINESS,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
6. SRI. CHAMPAKKA W/O. SUBHASH HANCHIBATTE,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O. AINAPUR VILLAGE-591 303,
TQ: ATHANI, DIST: BELAGAVI.
7. SMT. PADMAVATI W/O. BHUPAL CHOUGULE,
AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
R/O. YARNAL VILLAGE-591 221,
TQ: HUKKERI, DIST: BELAGAVI.
...RESPONDENTS
(NOTICE TO R1-R5 AND R7 SERVED;
NOTICE TO R6 HELD SUFFICIENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO,
SET ASIDE THE ORDERS ON ISSUE NO.1 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE HUKKERI IN O.S.NO.78/2019 DATED
27.10.2021 AND THE DECREE DRAWN THEREIN IN INTEREST OF
JUSTICE AND EQUITY AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.08.2025 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
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RFA No. 100143 of 2022
HC-KAR
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
This Regular First Appeal is filed under Section 96 of
the Code of Civil Procedure, 19081, by the plaintiff
challenging the judgment and decree dated 27.10.2021
passed in O.S.No.78/2019 on the file of Senior Civil Judge,
Hukkeri2, whereunder, the suit filed by the
appellant/plaintiff was dismissed as not maintainable by
the Trial Court, having answered Preliminary Issue No.1 in
the affirmative.
2. The parties will be referred to as per their
ranking before the Trial Court, for the sake of
convenience.
3. The factual matrix in a nutshell leading to the
present appeal is that the plaintiff filed the suit for a relief
of declaration, that the compromise decree dated
25.04.1992 passed in O.S.No.99/1992 by the Munsiff
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'Trial Court'
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Court, Hukkeri as inequitable, unfair, unjust and for
reopening the partition as also seeking for fresh partition
in the suit properties by awarding 1/10th share of the
plaintiff in the suit properties. It is the case of plaintiff in
the suit that the propositus was one Bharmappa Appanna
Gijavani. The genealogy of the family of the plaintiff and
defendants from their propositus is as under:
Bharamappa Appanna Gijavani
(died in 1999)
=Smt. Ammavva (wife)
(died in 2017)
Appasaheb Champakka Annasaheb Padmavati
(D1) (D6) (D2) (D7)
=Smt. Sheela (D3)
Rohini Pradeep Praveen
(D4) (D5) (plaintiff)
4. It is the case of plaintiff that the joint family of
plaintiff and defendants headed by the propositus owned
the suit properties, and that the propositus personally
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cultivated the joint family properties and managed the
joint family out of the said joint family income. That the
propositus, being karta of the joint family, was also
running a Kirana (Grocery) shop in one of the suit
properties as also purchased a goods truck, which he used
to give on hire basis to transport goods and was thus
earning a good income from all the said sources. That,
from and out of the joint family income, further properties
were purchased. That the propositus died in the year
1990-91 and the elder son, namely Appasaheb (defendant
No.1), was managing the affairs of the joint family as well
as the suit properties. That the father of the plaintiff i.e.,
Annasaheb (defendant No.2), was mentally retarded,
incapable of taking independent decisions and was doing
work only under the supervision and directions of others
and he used to blindly follow the directions of defendant
No.1. That defendant No.1 acquired a dominant position in
the joint family. That the plaintiff having attained majority,
a few months prior to the suit, after making enquiries
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realized that, defendant No.1, taking advantage of the
situation, appropriated various joint family properties for
himself. That defendant No.1 filed a suit in
O.S.No.99/1992 on the file of I Additional Civil Judge and
C.J.M., Hukkeri, for partition and separate possession of
the joint family properties on 24.04.1992 and on the next
day itself, i.e., on 25.04.1992, he took his parents as well
as defendant No.2 (Annasaheb) to Hukkeri, by stating that
their presence is required for executing power of attorney
in his favour for managing the affairs of the joint family
properties. That, since his parents and brother were fully
depending upon him and his direction, they accompanied
him to Hukkeri and affixed their signatures and thumb
impression wherever required by the defendant No.1. That
defendant No.1 got their signatures on vakalath and
compromise petition on 25.04.1992, whereunder, he took
half share of the suit properties, although he was entitled
to only 1/4th share. That it was falsely mentioned in the
compromise petition that he had given ₹75,000/- cash to
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his brother i.e., defendant No.2, when he had no
independent income for giving the said amount. That the
compromise petition was obtained without the knowledge
and consent of his parents and his brother Annasaheb and
hence, is not binding on the plaintiff. That defendant No.1
also got executed a registered mortgage deed in respect of
the joint family lands in favour of the bank and also under
the guise of getting registered mortgage deed, got
registered Sale Deeds dated 18.06.1997 and 29.04.2002.
That defendant No.1 is a shrewd and cunning person and
has got created records illegally by taking advantage of
the fact that the propositus was suffering from ill-health
and the father of plaintiff was a mentally retarded person.
Hence, the plaintiff filed the suit seeking for the following
reliefs:
"The plaintiff, therefore, prays that setting
aside the contentions of the defendants, a
decree be passed:
(a) Partition purported to be effected under
the Compromise-Decree dated 25.04.1992
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passed by the Hon'ble Court of the
Munsiff, Hukkeri in O.S.No.99/1992 be
declared as inequitable, unfair, ad unjust
and set aside and the partition in the suit
properties may kindly be reopened and
the share of the plaintiff in the suit
properties may kindly ordered to
separated by effecting partition by metes
and bounds in the same,
(b) Awarding separate possession of the
plaintiff's share as ordered to be separated
in clause (a) above,
(c) Awarding full costs of this suit to the
plaintiff from the defendant/s,
(d) Granting to the plaintiffs any other relief
to which he is found entitled to under the
facts and circumstances of the case."
5. The defendants entered appearance in the suit
and contested the same by filing written statement,
whereunder, the case of the plaintiff was denied. The Trial
Court, consequent to the pleadings of the parties, has
framed ten issues and issue No.1 was treated as a
preliminary issue, which reads as follows:
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1. "Does the defendant No.1 proves that the
plaintiff was born on 17.09.1999 thus he has no
right to question the compromise decree in
O.S.No.99/1992 dated 25.04.1992?"
6. The Trial Court took up the preliminary issue for
disposal. The defendant No.1 adduced evidence as DW.1
and marked Exs.D1 to Ex.D15 in support of issue No.1.
The plaintiff did not adduce any evidence. The Trial Court
answered issue No.1 in the affirmative and dismissed the
suit. Being aggrieved, the plaintiff has preferred the
present appeal.
7. The learned counsel Sri.H.R. Deshpande
appearing for the appellant/plaintiff vehemently contends
that the order of the Trial Court is erroneous and liable to
be interfered inasmuch as the Trial Court has only
adjudicated upon issue No.1, without adjudicating upon
the other issues. It is further contended that the plaintiff
has, apart from the relief that the compromise decree
passed in O.S.No.99/1992, is not binding on him, has also
sought for setting aside the Sale Deeds dated 18.06.1997
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and 29.04.2002. Hence, he seeks for allowing of the
appeal and granting of the reliefs sought for.
8. The respondents are served and unrepresented.
9. The submissions of the learned counsel for the
appellant/plaintiff have been considered and the material
on record including the records of the Trial Court has been
perused. The question that arise for consideration is:
"Whether the order dated 27.10.2021
passed by the Trial Court is erroneous and
liable to be interfered with?"
10. It is pertinent to note that the genealogy as set
out by the plaintiff vis-à-vis the relationship between the
parties is undisputed. It is further a matter of record that
Appasaheb (defendant No.1 in the present suit) instituted
O.S.No.99/1992, wherein, the propositus was arrayed as
defendant No.1, the wife of propositus was arrayed as
defendant No.2 and the father of plaintiff namely
Annasaheb (who was arrayed as defendant No.2 in the
present suit) as defendant No.3. It is further forthcoming
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that in the said suit, a compromise decree dated
25.04.1992 was passed.
11. The Trial Court, while considering issue No.1,
has recorded the following finding:
"So, in the present case also the plaintiff was
not born as on the date of the compromise decree
passed in O.S.No.99/1992 on 25.04.1992 and sales
in favour of the defendant No.1 under the registered
sale deeds, as such the plaintiff has no right to
question the partition and alienations made by his
father. Hence, in view of the law laid down by the
Hon'ble Supreme Court in the above referred
decisions, the suit of the plaintiff is not maintainable.
Therefore, even assuming for the sake of argument
the suit properties are joint family properties, but the
father and grandparents of the plaintiff have not
challenged the compromise decree passed on
25.04.1992 in O.S.No.99/1992 and sale deeds of suit
properties till today. Further, the said compromise
decree and sale deeds are registered and public
documents having a greater probative value.
Therefore, under such circumstances, the story
narrated by the plaintiff in the plaint is appears to be
created for the purpose of filing this suit. So, looked
with all angles an irresistible conclusion that could be
arrived is that, very suit of the plaintiff is not
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maintainable in law. The cause of action as shown by
the plaintiff for filing this suit is appears to be very
doubtful. Therefore, it appears that, now the price of
suit properties is raised and it is fetching higher
value, as such plaintiff after laps of 27 years from the
date of compromise decree has filed this false suit for
getting illegal gain. Therefore, the plaintiff has not
approached this court with clean hands. Hence, for
all these reasons, I am of the opinion that, the
defendant No.1 has proved that, the suit is barred
under law and the plaintiff has no right to question
the compromise decree passed in O.S.No.99/1992 on
25.04.1992. Further, looking to the facts and
circumstances of the case and conduct of the
plaintiff, there are no justifiable grounds to reject the
costs. Therefore, I answer this preliminary issue No.1
in favour of defendant No.1 and proceed to pass the
following:
ORDER
The preliminary Issue No.1 is answered in
the affirmative.
Consequently, suit of the plaintiff is
hereby dismissed with cost, as not
maintainable."
(emphasis supplied)
12. It is forthcoming from the aforementioned that
admittedly the father of the plaintiff namely Annasaheb,
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who was arrayed as defendant No.2 in the present suit,
was arrayed as defendant No.3 in O.S.No.99/1992. The
plaintiff, who claims through Annasaheb, is seeking for a
relief of declaration that the compromise decree passed in
O.S.No.99/1992 be declared as inequitable, unfair and
unjust, as also for setting aside of the same and other
reliefs. At this juncture, it is relevant to notice Order XXIII
Rule 3 and Rule 3-A of the CPC, which reads as follows:
3. "Compromise of suit.-Where it is proved
to the satisfaction of the Court that a suit has been
adjusted wholly or in part by any lawful agreement
or compromise [in writing and signed by the
parties], or where the defendant satisfies the
plaintiff in respect of the whole or any part of the
subject-matter of the suit, the Court shall order
such agreement, compromise or satisfaction to be
recorded, and shall pass a decree in accordance
therewith 4[so far as it relates to the parties to the
suit, whether or not the subject-matter of the
agreement, compromise or satisfaction is the same
as the subject-matter of the suit]:
Ins. by Act 104 of 1976, sec. 74(iii)(a) (w.e.f. 1-2-1977).
Subs. by Act 104 of 1976, sec. 74(iii)(b), for "so far it relates to the suit"
(w.e.f. 1-2-1977).
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[Provided that where it is alleged by one party
and denied by the other than an adjustment or
satisfaction has been arrived at, the Court shall
decide the question; but no adjournment shall be
granted for the purpose of deciding the question,
unless the Court, for reasons to be recorded, thinks
fit to grant such adjournment.]
[Explanation.-An agreement or compromise
which is void or voidable under the Indian Contract
Act, 1872 (9 of 1872), shall not be deemed to be
lawful within the meaning of this rule.]
3A. Bar to suit.- No suit shall lie to set aside a
decree on the ground that the compromise on
which the decree is based was not lawful."
13. The Hon'ble Supreme Court in the case of
Pushpa Devi Bhagat (Dead) Through LR Sadhna Rai
(Smt) Vs. Rajinder Singh and Others7, considering the
scheme of Order XXIII Rule 3 and Rule 3-A of the CPC,
held as follows:
"17. The position that emerges from the
amended provisions of Order 23 can be summed up
thus:
Ins. by Act 104 of 1976, sec. 74(iv) (w.e.f. 1-2-1977).
Ins. by Act 104 of 1976, sec. 74(v) (w.e.f. 1-2-1977).
2005 (5) SCC 566
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(i) No appeal is maintainable against a consent
decree having regard to the specific bar contained
in Section 96(3) CPC.
(ii) No appeal is maintainable against the order of
the court recording the compromise (or refusing to
record a compromise) in view of the deletion of
clause (m) of Rule 1 Order 43.
(iii) No independent suit can be filed for setting
aside a compromise decree on the ground that the
compromise was not lawful in view of the bar
contained in Rule 3A.
(iv) A consent decree operates as an estoppel
and is valid and binding unless it is set aside by the
court which passed the consent decree, by an order
on an application under the proviso to Rule 3 Order
23.
Therefore, the only remedy available to a party to
a consent decree to avoid such consent decree, is to
approach the court which recorded the compromise
and made a decree in terms of it, and establish that
there was no compromise. In that event, the court
which recorded the compromise will itself consider
and decide the question as to whether there was a
valid compromise or not. This is so because a
consent decree is nothing but contract between
parties superimposed with the seal of approval of the
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court. The validity of a consent decree depends
wholly on the validity of the agreement or
compromise on which it is made. The second
defendant, who challenged the consent compromise
decree was fully aware of this position as she filed an
application for setting aside the consent decree on
21-8-2001 by alleging that there was no valid
compromise in accordance with law. Significantly,
none of the other defendants challenged the consent
decree. For reasons best known to herself, the
second defendant within a few days thereafter (that
is on 27- 8-2001) filed an appeal and chose not to
pursue the application filed before the court which
passed the consent decree. Such an appeal by the
second defendant was not maintainable, having
regard to the express bar contained in Section 96(3)
of the Code."
(emphasis supplied)
14. The Hon'ble Supreme Court in the case of
Triloki Nath Singh Vs. Anirudh Singh (D) Thr. Lrs and
Ors8, after noticing its earlier judgment in the case of
Pushpa Devi Bhagat7, considering a fact situation,
wherein, another suit was filed by a member of a joint
AIR 2020 SUPREME COURT 2111
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family, who was not a party to the compromise, held as
follows:
"22. In other words, the appellant can only
claim through his predecessor Sampatiya, to the
extent of rights and remedies available to Sampatiya
in reference to the compromise decree. Merely
because the appellant was not party to the
compromise decree in the facts of the present case,
will be of no avail to the appellant, much less give
him a cause of action to question the validity of the
compromise decree passed by the High Court by way
of a substantive suit before the civil Court to declare
it as fraudulent, illegal and not binding on him.
Assuming, he could agitate about the validity of the
compromise entered into by the parties to the
partition suit, it is only the High Court, who had
accepted the compromise and passed decree on that
basis, could examine the same and no other Court
under proviso to Rule 3 of Order 23 CPC. It must,
therefore, follow that the suit instituted before the
civil Court by the appellant was not maintainable in
view of specific bar under Rule 3A of Order 23 CPC as
held in the impugned judgment."
(emphasis supplied)
15. Hence, it is clear that it is not open to the
plaintiff to file O.S.No.78/2019 challenging the
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compromise decree passed in O.S.No.99/1992. Recourse
of the plaintiff, if any, is to be availed in accordance with
Order XXIII Rule 3 of the CPC, as also the legal position as
noticed above. Hence, the question framed for
consideration is answered in the 'negative'.
16. In view of the aforementioned discussion, the
above appeal is dismissed as being devoid of merit,
reserving liberty to the plaintiff to avail such other
remedies as permissible under law subject to all just
exceptions.
Sd/-
(S.R. KRISHNA KUMAR)
JUDGE
Sd/-
(C.M. POONACHA)
JUDGE
PMP
CT-MCK
