Allowed

Smt Roopa K T v. Kum Shruthi K T

Karnataka HC12 Oct 2023RFA/878/2014

Case brief

AI extract

What is this about?

This Regular First Appeal regarding a partition suit was disposed of by accepting a compromise petition filed during its pendency. The High Court modified the impugned decree in accordance with the settlement agreement reached between the parties.

What did the court decide?

Appeal allowed and disposed of; decree of the court below modified in terms of the compromise; final decree drawn accordingly; interlocutory applications disposed of.

Smt Roopa K T Vs Kum Shruthi K T — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:37426-DB RFA No. 878 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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REGULAR FIRST APPEAL NO. 878 OF 2014 (PAR)

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BETWEEN:

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SMT ROOPA K T AGED ABOUT 27 YEARS W/O SRI VENKATESH D/O SRI D T THIPPERUDRAPPA

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KUM SHEELA T AGED ABOUT 25 YEARS D/O SRI D T THIPPERUDRAPPA

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SRI GIRISH T AGED ABOUT 23 YEARS S/O SRI D T THIPPERUDRAPPA

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Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA

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ALL ARE R/AT KYATHANAHALLI VILLAGE, DAVANAGERE TALUK DAVANAGERE DIST - 577 534 …APPELLANTS

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(BY SRI. B N JAYADEVA, ADV.)

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AND:

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- KUM. SHRUTHI K T AGED ABOUT 22 YEARS D/O SRI D T THIPPERUDRAPPA

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SMT RANGAMMA AGED ABOUT 47 YEARS W/O SRI D T THIPPERRUDRAPPA

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SRI D T THIPPERUDRAPPA AGED ABOUT 52 YEARS

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*Page no.1 is retyped and replaced vide court order dated 11.06.2024. *Corrected vide chamber order dated 01.07.2024

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S/O LATE THIMMAPPA ALL ARE R/AT KYATHANAHALLI VILLAGE, DAVANAGERE TALUK DAVANAGERE DIST - 577 534 …RESPONDENTS

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(BY SRI. MARUTHI G B., ADV.FOR R1 & R2)

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THIS RFA IS FILED UNDER SECTION 96, READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 10.4.2014 PASSED IN O.S.1/2012 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM., DAVANAGERE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, P.S.DINESH KUMAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 96 of Code of Civil Procedure, 1908 is filed by defendants No.2 to 4 in O.S.No.1/2012 against the judgment and decree dated April 10, 2014 passed by the Principal Senior Civil Judge and CJM, Davanagere.

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Respondents No.1 and 2 herein have filed

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the instant suit seeking partition and separate possession of the suit schedule property. The suit has been decreed.

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Heard Shri B.N. Jayadeva, learned Advocate

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for the appellants and Shri G.B. Maruthi, learned Advocate for respondents No.1 and 2.

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Smt. Roopa, appellant No.1,

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Kum. Susheela, appellant No.2, Shri Girish,

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appellant No.3, Smt. K.T. Shruti, respondent No.1 and Smt. Rangamma, respondent No.2 are present and they are identified by their respective

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advocates.

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Brief facts of the case are, the plaintiffs are

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the daughter and first wife of defendant No.1 Shri D.T. Thipperudrappa. Defendants No.2 to 4 are the children of Thipperudrappa's second wife Smt. Parvathamma. The first wife and her daughter have brought the instant suit. It is stated in the suit as also in para No.2 of the compromise petition that Thipperudrappa went missing on 25.02.2009 and his whereabouts are not known.

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Shri Jayadeva, learned Advocate for the appellant has placed reliance on the decision of Bombay High Court in Vijaya Shrikant Revale Vs. Shirish Shrikant Revale and others¹ and submitted that if a person is not heard of continuously for seven years, it is to be presumed that he is dead unless it is countered, and if countered that the person is alive, then the burden to prove lies on the person asserting. In the event of return of such person, the law can take care of a situation if further proceedings are taken out by such person.

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Learned advocates on both sides jointly

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submit that during the pendency of this appeal, parties have amicably resolved the dispute. A compromise petition under Order XXIII Rule 3 of read with Section 89 of CPC duly signed by the appellants, respondents No.1 and 2 and their respective advocates has been filed. Appellants

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1 First Appeal No.1208/2015, decided on 24.02.2016

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5 - NC: 2023:KHC:37426-DB RFA No. 878 of 2014

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have handed over two cheques bearing No.120632 and 120633 in favour of respondent No.2. She acknowledges the receipt of said cheques. Parties agree that they have understood the terms of the compromise. They pray that this appeal may be disposed of in terms of settlement stated in the compromise petition.

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The terms of compromise reads as follows:

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"COMPROMISE MEMO UNDER ORDER 23 RULE 3 OF THE CODE OF CIVIL PROCEDURE

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The appellants and the respondents respectfully submit as hereunder:

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1. The respondents herein being the daughter and wife of Sri. Thipperudrappa filed an original suit for partition and separate possession of their share in the properties of Sri. Thipperudrappa against the said Sri. Thipperudrappa and the appellants herein in O.S.No.1/2012 on the file of the Honourable Principal Senior Civil Judge and CJM at Davangere, which was decreed in their favour by a respondent is entitled to half share in the properties of Sri Thipperudrappa and the remaining half share would be that of said Sri Thipperudrappa. The Appellants herein being the children of Sri Thipperudrappa being aggrieved by the said judgment and decree dated 10.04.2014 have preferred this Regular First appeal.

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2. That prior to the filing of the said suit for partition, Sri Thipperudrappa went missing on 2502-2009 and in this connection, a missing complaint was lodged on 25-03-2009 by the first

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appellant herein before the Mayakonda police, copy of which complaint is marked as exhibit P-13 in O.S. No.01/2012 and there is no dispute between the parties regarding the disappearance of said Sri Thipperudrappa. Despite the best efforts of the parties, herein to trace said Sri Thipperudrappa, and despite the complaint lodged with the police regarding the disappearance of Sri Thipperudrappa, the where about of Sri Thipperudrappa have not been known till date to the parties herein. Since more than seven years have elapsed said Sri Thipperudrappa went missing on 25-02-2009, the parties herein have in view of section 108 of the Evidence Act. Genuinely come to the conclusion that Sri Thipperudrappa is not alive and also therefore, there is no necessity to have said Sri Thipperudrappa as a party to the subject suit and the present appeal seeking for partition and separate possession of the share of the parties herein in the properties of Sri Thipperudrappa.

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3. The parties herein being the wife and children of Sri Thipperudrappa, taking note of the fact and being aware of the fact that Sri Thipperudrappa has not been heard for the past seven years and as his whereabouts are not known to anyone, have on the advice of elders and well-wishers of the family decided to partition the properties of Sri Thipperudrappa between the parties herein and accordingly the parties here in seek leave of this Honourable court. To present this compromise petition for being accepted by this Honourable court and a decree being passed accordingly.

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4. That both parties accept that the appellants and the first respondent are the children of late Sri Thipperudrappa and the second respondent is the surviving wife of late Sri Thipperudrappa.

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5. The late Sri Thipperudrappa immediately after his ancestral properties fell to his exclusive share at the partition under a deed of partition dated 1810-2021 registered as document number 7775/2001-02 which is marked as exhibit P-1, between himself, and his siblings, gave 2 acres 18

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guntas of land in survey number 96/2B of Mayakonda village being item number 2 of the suit schedule properties to the share of the second respondent under a partition deed dated 19-102001 regarding as document No.7776/2001-2002 and as such the second respondent, having received her share in the properties of Sri Thipperudrappa, has agreed not to take any further share in the properties of Sri Thipperudrappa and accordingly in terms of this compromise, the second respondent has not been given any property as her share in the properties of Sri Thipperudrappa.

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6. That the parties have resolved and agreed that the properties appearing in "Schedule "A" herein below, which are part of suit schedule properties shall be allotted to the share of the appellants and the properties appearing in "Schedule "B" herein below which are part of suit schedule properties and shall be allotted to the share of the first respondent which would be in the Ratio of 50% to the appellants and 50% to the 1st Respondent.

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7. The first respondent has agreed to accept a sum of Rs.10,00,000/- (Ten lakhs only) in full and final settlement of her claim regarding mesne profits to which she could have been entitled to in the properties of Sri Thipperudrappa, on the premise that the said properties have in the possession of the appellants, accordingly, the appellants have paid the sum of Rs.10,00,000/(Ten lakhs only) to the first respondent through post-dated cheques, as detailed here in below.

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i) a sum of Rs.5,00,000/- (Rupees Five Lakhs Only) through Cheque bearing No. 120632 dated 20.10.2023, drawn on Canara Bank of Mayakonda Branch, at Mayakonda, Davanager Taluk and District drawn in favour of 1^st Respondent.

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ii) a sum of Rs.5,00,000/- (Rupees Five Lakhs only) through Cheque bearing No. 120633 dated 29.12.2023, drawn on

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8 - NC: 2023:KHC:37426-DB RFA No. 878 of 2014

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Canara Bank of Mayakonda Branch, Davanagere Taluk and District drawn in favour of 1^st Respondent.

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The Respondents No.1 has acknowledged/receipt of the same subject to realization of the said Cheques, and as such she gives up her claim for mesne profit.

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8. That the appellants and the first respondent have been placed in possession of the schedule, 'A' properties and schedule 'B' properties is respectively and each of the parties herein confirm that they have come into exclusive possession of their respective portions and as such each of them relinquish whatever claim they had over the properties allotted to the other and further confirm that the parties to whom the share of the properties are so allotted shall be entitled to enjoy the respective portions, including bore well, water sources etc., without interference from the other.

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9. The parties are agree that, they will cooperate with each other in executing such documents as may be needed by parties herein to enjoy their respective allotments/shares, it is further submitted that, there is no undue influence and any pressure/coercion to enter this compromise petition.

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10. The parties here and further agree to live in harmony and with love towards each other being the members of the family o f Sri Thipperudrappa.

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11. Both the parties agreed that a final decree may be ordered to be drawn in terms of this compromise petition.

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12. The respondent No.1 and 2 hereby agreed to withdraw FDP No.19/2014 unconditionally in term of this compromise.

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"SCHEDULE-A" PROPERTIES HAVE ALLOTTED TO THE SHARE OF APPELLANTS

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Below mentioned properties are allotted to as share of the Appellants/defendants No.2 to 4 as per annexed sketch marked at "CDHGC" having an extent of 30 guntas only with respect to schedule properties, over which the Respondents No.1 and 2/plaintiffs have no any manner of right, title, interest or claim over this schedule properties. Appellants are having right to change the revenue records in their favour or, their heirs, executors, administrators, assigns, nominees, attorneys etc.,

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ITEM NO.1

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In the agricultural land bearing Sy No.58/2P1 totally measuring 02 acre 05 gunta in which to an extent of 00-3.5 guntas only out of extent of 0-07 gunta situate at Kyathanahalli Village, Mayakonda Hobli, Davangere Taluk, bounded by:-

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EAST : Property of Govindappa WEST : Property of Siddanamatada Basavanthappa NORTH : Property of Thippeswamy SOUTH : Property of Respondent No.1 (Smt Shruti.K.T) item No.1.

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ITEM NO.4

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In the agricultural land bearing Sy No.48/1AP1 and present new Sy. No.48/1A2 to an extent of 04 acre 26 guntas out of measuring 5-04 guntas (which is standing in the name Thipperudrappa S/o Thimmappa) situate at Kyathanahalli Village, Mayakonda Hobli, Davangere Taluk, is bounded on:-

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EAST : Properties of Kalachari, Thimappa, and Jayamma WEST : Property of the Smt. Roopa K.T (Appellant No1) NORTH : Property of Respondent No.1, item No 4 SOUTH : Property of the Suresh, D.K and Kanthamma

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10 - NC: 2023:KHC:37426-DB RFA No. 878 of 2014

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ITEM NO.5

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In the agricultural land bearing Sy. No. 48/1AP2 and present new Sy. No 48/1A1, to an extent of 0 acres 30 Gunts out of measuring 3-00 acre (which is standing in the name Thipperudrappa S/o Thimmappa) situate at Kyathanahalli Village, Mayakonda Hobli, Davangere Taluk is bounded on:-

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EAST : Property of Sy.40. WEST : Property Sy. No.48/2B1, Item No 3 NORTH : Property of Sy.40. SOUTH : Property of the Respondent No.1, item No.5

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* * * * * * *

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"SCHEDULE -B" PROPERTIES ARE ALLOTTED TO RESPONDENT NO.1 1.E., SMT. SHRUTI K.T.

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Below mentioned properties are allotted to as share of the plaintiff No.1/Respondent No.1 as per annexed sketch marked at "ABCDEKJFA" having to an extent of 5 acre 16 guntas with respectto schedule properties as hereunder, over which the appellants have no any manner of right, title, interest or claim over this schedule properties. Plaintiff No.1/Respondent No.1 is having right to change the revenue records in her favour or, her heirs, executors, administrators, assigns, nominees, attorneys etc.,

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ITEM NO.1

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The agricultural land bearing Sy No.58/2P1 totally measuring 02 acre -05 gunta in which an extent of 00-3.5 gunts out of extent of 0-07 gunta situate at Kyathanahalli Village, Mayakonda Hobli, Davangere Taluk, bounded by:

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EAST : Property of Govindappa WEST : Property of Siddanamatada Basavanthappa NORTH : Property of appellants

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11 - NC: 2023:KHC:37426-DB RFA No. 878 of 2014

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SOUTH : Property of Goudar Gurumurthyappa

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ITEM NO.3

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In agricultural land bearing Sy No.48/2B1 to an extent of 2 acre 28 gunta, out of totally measuring 5-28 gunta, (which is standing in the name Thipperudrappa S/o Thimmappa) situated at Kyathanahalli Village, Mayakonda Hobli. Davangere Taluk, bounded by:

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EAST : Property Sy. No. 48/1A1, item No 5 WEST : Property of Mudiyajjara Manthamma NORTH : Property of Madivalara Gangamma SOUTH :Property of the Smt.Roopa K.T (Appellant No1)

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ITEM NO.4

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In agricultural land bearing Sy No.48/1AP1 and present new Sy. No.48/1A2 to an extent of 18 guntas out of measuring 5-04 gunta (which is standing in the name Thipperudrappa S/o Thimmappa) situate at Kyathanahalli Village, Mayakonda Hobli, Davangere Taluk is bounded on:-

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EAST : Properties of Thimanna, and Jayamma WEST : Property of the Smt Roopa K.T (Appellant No1) NORTH : Property of Respondent No.1, item No 5 SOUTH : Property of the Appellants, item No 4

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ITEM NO.5

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In agricultural land bearing Sy No. 48/1AP2 and present new Sy. No 48/1A1, an extent of 2 acre 10 Gunts out of measuring 3-00 acre (which is standing in the name Thipperudrappa S/o Thimmappa) situate at Kyathanahalli Village, Mayakonda Hobli, Davangere Taluk is bounded on:-

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EAST : Properties of Chandrappa, and Ramappa WEST : Property Sy. No.48/2B1, item No 3 NORTH : Property of the Appellants, item No 5 SOUTH : Property of Respondent No. 1, item No 4

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PROPERTY GIVEN TO THE SHARE OF RESPONDENT NO.2

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Item No.2 is allotted to Plaintiff No.2/Respondent No.2 as stated in Para No.5 of this compromise petition, for which the appellants/defendants No. 2 to 4 have no any manner of right, title, interest or claim over the Item No.2 schedule property and Plaintiff No.2/Respondent No.2 is having right to change the revenue records in her favour or, her heirs, executors, administrators, assigns, nominees, attorneys etc.,

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Wherefore the parties are most respectfully prays that this Hon'ble court may be pleased to accept this compromise petition, and to draw the final decree and dispose of the appeal and suit in terms of this compromise petition in the ends of justice and equity.

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In our opinion, compromise arrived at between

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the parties is lawful and hence accepted Judgment

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and decree dated April 10, 2014 in O.S.No.1/2012

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passed by the Principal Senior Civil Judge and CJM, Davanagere shall stand modified in terms of

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NC: 2023:KHC:37426-DB RFA No. 878 of 2014

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13 -

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compromise arrived at between the parties and this

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appeal is accordingly disposed of.

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Decree shall be drawn accordingly. Parties

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shall bear their own costs.

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In view of disposal of this appeal, pending

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interlocutory applications, if any, do not survive for consideration and they stand disposed of .

SD/-

JUDGE

SD/JUDGE

CT:HS List No.: 1 Sl No.: 54

Smt Roopa K T v. Kum Shruthi K T

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Smt Roopa K T v. Kum Shruthi K T

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