Two cross appeals arising from suits over a family property were referred to mediation, where the parties settled: title confirmed by gift deeds, property to be sold with 25% of proceeds to the appellant, payments to respondents, and withdrawal of execution petition. Court accepted settlement and disposed of both appeals.
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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 NANDINI R Location: High Court of Karnataka
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.
NC: 2024:KHC:45114-DB RFA No. 1062 of 2017 C/W RFA No. 1039 of 2017
…RESPONDENTS
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:
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:
"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.
NC: 2024:KHC:45114-DB RFA No. 1062 of 2017 C/W RFA No. 1039 of 2017
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.
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 RFA No. 1062 of 2017 C/W RFA No. 1039 of 2017
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 RFA No. 1062 of 2017 C/W RFA No. 1039 of 2017
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.
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:-
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."
memorandum of settlement and also the affidavit sworn to
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.
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/-
List No.: 1 Sl No.: 1
1 issue framed by the court
Whether the appeals could be disposed of in terms of the memorandum of settlement arrived at through mediation under Section 89 CPC.
4 provisions across 2 enactments
Sri P Kamesh Murthy
Smt. Uriti Gyanamba
Smt. Uma Murthy
Sri P Kalakar Murthy
Krishna S Dixit
C M Joshi
As recorded by the court registry
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