Allowed

Shivabai Baburao Kupati v. Mallikarjun Shivashankar Chikodi

Karnataka HC1 Dec 2022RFA/1625/2005

Case brief

AI extract

What is this about?

The High Court of Karnataka accepted a compromise petition filed by the appellant (legal representative of deceased plaintiff) and the respondent. Under the agreement, the appellant admitted execution of sale deeds, relinquished rights, and agreed to vacant possession and payment of expenses. The court modified decrees accordingly, set aside a previous declaration of nullity, and disposed of pendi

What did the court decide?

Judgment and decree in O.S.No.161/1995 set aside; decree in O.S.No.70/1996 confirmed in terms of compromise; vacancy of possession and payment of expenses enforced.

Shivabai Baburao Kupati Vs Mallikarjun Shivashankar Chikodi — Partition | Karnataka HC (2022)

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE R.NATARAJ

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REGULAR FIRST APPEAL NO. 1625 OF 2005 (DEC-)

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C/W

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REGULAR FIRST APPEAL NO. 4130 OF 2013

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IN REGULAR FIRST APPEAL NO. 1625 OF 2005

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BETWEEN:

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SHIVABAI BABURAO KUPATI SINCE DECEASED BY HER LRS. SRISHAIL BASAVANNAPPA KUPATI, AGE: 43 YEARS, OCC:AGRICULTURE, R/AT PLOT NO.7, 5^TH CROSS, SURVEY NO.45, AZAMNAGAR, BELGAUM 590010.

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…APPELLANT (BY SRI. B S KAMATE, ADV., & SRI. JAGADISH PATIL, ADV.,)

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AND:

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MALLIKARJUN SHIVASHANKAR CHIKODI, AGE:47 YEARS, OCC;SERVICE, R/AT C/O INDIAN ALUMINIUM CO. INDAL, BELGUAM AND R/AT EASTERN BLOCK, PLOT NO.7, 5^TH CROSS, AZAMNAGAR KANGRALI (BK), BELGAUM 590 010

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…RESPONDENT

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(BY SRI. CHETAN MUNNOLLI, ADVOCATE)

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THIS RFA IS FILED U/S.96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.7.2005 PASSED IN

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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O.S.NO.70/1996 BY THE I-ADDL. CIVIL JUDGE (SR.DN), BELGAUM BY ALLOWING THIS APPEAL WITH COSTS IN THE INTEREST OF JUSTICE.

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IN REGULAR FIRST APPEAL NO. 4130 OF 2013

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BETWEEN:

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MALLIKARJUN SHIVASHANKAR CHIKODI AGE: 48 YEARS, OCC: SERVICE R/O. C/O. INDIAN ALUMINIUM CO. INDAL, BELGAUM AND R/O. EASTERN BLOCK IN PLOT NO. 7, V CROSS, AZAM NAGAR, KANGRALI (BK), BELGAUM

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…APPELLANT

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(BY SRI. CHETAN MUNNOLLI, ADVOCATE) AND:

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SMT. SHIVABAI W/O. BABURAO KUPATI SINCE DECEASED BY HIS LRS SHRISHAIL S/O. BASAVANNAPPA KUPATI AGE: 50 YEARS, OCC: PRIVATE SERVICE, R/O. PLOT NO. 7, 5^TH CROSS, SURVEY NO. 45, AZAM NAGAR, BELGAUM

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…RESPONDENT

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(BY SRI. SHARAD PATIL ADV., AND SRI. JAGADISH PATIL, ADV.,)

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THIS RFA IS FILED U/S.96 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 29.7.2005 PASSED IN O.S.NO.161/1995 BY THE I-ADDL. CIVIL JUDGE (SR.DN), BELGAUM BY ALLOWING THIS APPEAL WITH COSTS THROUGHOUT.

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THESE APPEALS COMING ON FOR ORDERS FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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JUDGMENT

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These appeals arise out of two suits filed in O.S.No.161/1995 and O.S.No.70/1996 for declaration that the sale deed dated 23.04.1994 and 26.03.1993 executed by the deceased plaintiff in favour of the defendant as null and void and not binding on her and also for consequential relief of injunction. Amongst the two suits, the Trial Court dismissed O.S.No.70/1996 and decreed O.S.No.161/1995 and declared that the sale deed dated 23.04.1994 executed by the deceased plaintiff in favour of the defendant as null and void. Being aggrieved by the judgment and decree passed in O.S.No.70/1996, RFA No.1625/2005 is filed while being aggrieved by the judgment and decree in O.S.No.161/1995, RFA No.4135/2005 is filed.

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When the appeal was listed for final hearing, at the instance of the court as well as at the instance of the learned counsel for the appellant and respondent, the appellants/legal representatives of the plaintiff have agreed to settle the dispute amicably by receiving a sum of Rs.25,00,000/- towards full and final settlement of their

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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claim in respect of the subject matter of aforesaid suits. The parties, thereafter, have filed a compromise petition under Order XXIII Rule 3 of the Code of Civil Procedure, 1908. The relevant terms of which are as under:

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“4. The appellant and respondent have settled the dispute amicably with the intervention of elders and well wishers on the following terms:

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a) The Shrishail S/o. Basavanneppa Kupati (i.e., Appellant in RFA No.1625/2005 and his children (attesting witnesses) admit the execution of sale deeds dated 26.03.1993 and 24.03.1994 by the Smt. Shivubai Baburao Kupati in favour of the Mallikarjun Shivashankar Chikodi in respect of suit schedule properties in OS No.70/1996 and OS No.161/1995, are true and correct and same are binding on them as the sale deeds are for valuable consideration and given effect to. The Shrishail S/o. Basavanneppa Kupati (i.e., Appellant in RFA No.1625/2005) and his children (attesting witnesses) further admits and states that, Mallikarjun Shivashankar Chikodi is the absolute owner of the suit schedule properties in OS No.70/1996 and OS No.161/1995 by virtue of the sale deeds referred above.

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b) The Shrishail S/o. Basavanneppa Kupati (i.e., Appellant in RFA No.1625/2005 and his children (attesting witnesses), have agreed and states that they

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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have no right, title or interest of whatsoever nature over the suit schedule properties in OS No.70/1996 and OS No.161/1995.

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c) The Mallikarjun Shivashankar Chikodi i.e., Appellant in RFA No.4130/2005 has agreed to give Rs.25,00,000/- towards litigation and miscellaneous expenses by way of Demand Draft bearing No.141854 dated 30.11.2022, drawn on State Bank of India, Jayanagar Branch, Hindalaga, Belagavi drawn in the name of Shrishail Basavannappa Kupati. The Shrishail Basavannappa Kupati i.e., Appellant in RFA No.1625/2005 admits the receipt of the same, for this the attesting witnesses i.e., children of Shrishail Basavannappa Kupati have no objection as they admit they have no subsisting right over the suit schedule properties in view of the terms of the compromise.

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d) The Shrishail Basavannappa Kupati i.e., Appellant in RFA No.1625/2005 shall vacate and handover the vacant possession of western block shown as EFGH in the Hand Sketch Map in respect of suit schedule property in OS No.70/1996 within a period of 60 days from today, failing which the Mallikarjun Shivashankar Chikodi i.e., Appellant in RFA No.4130/2005 is at liberty to execute the terms of this compromise decree to seek vacant possession of the western block shown as EFGH in the Hand Sketch Map in respect Suit Schedule Property in OS No.70/1996. It is further submitted that, the Middle Block shown as FHIJ in the

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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Hand Sketch Map in respect Suit Schedule Property in OS No.70/1996 is already in possession of Mallikarjun Shivashankar Chikodi.

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e) The Shrishail Basavannappa Kupati or the occupants of the suit schedule property on behalf of Shrishail Basavannappa Kupati shall vacate and handover the possession on or before 01.02.2023, failing which the Shrishail Basavannappa Kupati shall pay the damages of Rs.1,000/- per day after 01.02.2023 till handing over of the vacant possession above referred property to the Mallikarjun Shivashankar Chikodi.

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f) The Shrishail Basavannappa Kupati states that, there are no other legal representatives of the deceased Shivubai except himself. In the event, any third person agitates the right over the suit schedule properties as legal representatives of deceased Shivubai, the Shrishail Basavannappa Kupati indemnify to take care of the same.

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5. The Shrishail Basavannappa Kupati and his legal heirs have no objections to effect the name of the Mallikarjun Shivashankar Chikodi or the persons claiming under him, in the revenue records, KEB records, Municipal Records and other concerned authorities.

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6. The Shrishail Basavannappa Kupati states that, the suit schedule properties in OS No.161/1995 is free from all encumbrances and also submit that, he has

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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not availed any kind of loan or financial assistance over the suit schedule property. The Shrishail Basavannappa Kupati further states that, no encumbrances of whatsoever nature are created by him in respect of suit schedule property in OS No.70/1996. In the event any such transaction is found, Shrishail Basavannappa Kupati shall clear off the same.

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7. All the parties to this compromise admit that this compromise is binding on all the parties to this compromise.

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8. This compromise between the parties is in accordance with law and parties have entered into compromise with their free will and wish and not under coercion, misrepresentation or undue influence and they have read over the terms of the compromise and the same have been explained to them in the language known to them.

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Wherefore, it is most humbly prayed that this Hon’ble Court be pleased to modify the judgment and decree dated 14.09.2018 passed in OS No.70/1996 and OS No.161/1995 on the file of I-Additional Civil Judge (Sr.Dn), Belgaum may kindly be modified in terms of this compromise petition, in the interest of justice and equity.”

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The appellant No.1(a), his elder daughter Smt.Daneshwari W/o.Mahantesh, younger daughter Veena

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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and son Basavaprabhu are present. All of them have acknowledged and admitted the settlement entered into. Appellant No.1(a) and his children are identified by the learned counsel for the appellant. In continuation of the settlement, the plaintiff has received a sum of Rs.25,00,000/by way of a Demand Draft bearing No.141854 drawn from State Bank of India, Jayanagar Branch, Hindalaga, Belagavi dated 30.11.2022. The said Demand Draft is handed over to the appellant No.1(a). The parties have affixed their signatures on the order sheet in token of their acceptance of the terms of the settlement.

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Since the compromise is just and proper and does not contravene any provision of law, the same is accepted. Hence, the impugned judgment and decree passed in O.S.No.70/1996 is confirmed and judgment and decree passed in O.S.No.161/1995 is set aside. Accordingly, these appeals are disposed off in terms of this compromise. The office is directed to draw a decree in terms of this compromise.

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RFA No. 1625 of 2005 C/W RFA No. 4130 of 2013

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In view of disposal of the appeals, pending

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interlocutory applications, if any, do not survive for

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consideration and are disposed of accordingly.

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(Sd/-) JUDGE

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YAN

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List No.: 1 Sl No.: 4

Shivabai Baburao Kupati v. Mallikarjun Shivashankar Chikodi

Case brief

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Shivabai Baburao Kupati v. Mallikarjun Shivashankar Chikodi

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