K. Nithyananda Tholar Vs K. Premanatha Tholar

K. NITHYANANDA THOLAR AGED ABOUT 61 YEARS, S/O. LATE ANANDA THOLAR, R/AT ANANDA JEEVANA HOUSE, HALAMBI COMPOUND, KOTESHWARA POST, KUNDAPURA TALUK, KUNDAPURA TALUK, UDUPI-576 222.

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…PETITIONER

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(BY SRI. SACHIN B S.,ADVOCATE)

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AND:

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Digitally signed by RUPA V Location: High Court of karnataka

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K. PREMANATHA THOLAR AGED ABOUT 56 YEARS, W/O. LATE K. ANANDA THOLAR, R/AT "ANITHA NILAYA", KUCHOOR VILLAGE AND POST, HEBRI TALUK, UDUPI DISTRICT-576 222.

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SMT. KAMALAKSHI HEGGADATHI AGED ABOUT 84 YEARS, W/O. LATE K. ANANDA THOLAR, R/AT ANITHA NILAYA, KUCHOOR VILLAGE AND POST, HEBRI TALUK, UDUPI DISTRICT-576 222.

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HC-KAR

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AMARANATHA THOLAR AGED ABOUT 63 YEARS, S/O. LATE K. ANANDA THOLAR, R/AT BASROOR HOUSE, P.O. KENCHANOOR, KUNDAPURA TALUK-581 421.

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ASHWIN THOLAR AGED ABOUT 51 YEARS, S/O. LATE K. ANANDA THOLAR, R/AT PREETHAM HOUSE, NEAR GOVT. SCHOOL, KUCHOOR POST AND VILLAGE, HEBRI TALUK, UDUPI DISTRICT-576 222.

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SMT. ANITHA S. HEGDE AGED ABOUT 47 YEARS, D/O. LATE K. ANANDA THOLAR, W/O. K. H. SUBHODA HEGDE, P.O. KONI, KATKERI, KUNDAPURA TALUK-576 222.

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KIRAN THOLAR AGED ABOUT 42 YEARS, S/O. LATE K. ANANDA THOLAR, R/AT "KAMALANANDA HOUSE", KUCHOOR POST AND VILLAGE, HEBRI TALUK-576 112.

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SMT. SUSHEELA. G AGED ABOUT 64 YEARS, W/O. LATE NARASIMHA.N, R/AT APARTMENT NO. 1103, D-WING, 11^TH FLOOR, SAIRADHA PRIDE, BRAHMAGIRI, UDUPI-576 222.

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SMT. JAYA @ JAYA POOJARY AGED ABOUT 59 YEARS, W/O. LATE PANJU POOJARY,

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HC-KAR

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R/AT KATKERE, KUCHOOR VILLAGE AND POST, HEBRI TALUK, UDUPI DISTRICT-576 222.

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SMT. DEEPAMALA AVINASH RAO AGED ABOUT 39 YEARS, W/O. AVINASH RAO, R/AT APARTMENT NO.1103, D-WING, 11^TH FLOOR, SAIRADHA PRIDE, BRAHMAGIRI, UDUPI-576 222.

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…RESPONDENTS

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(BY SRI. CHANDRANATH ARIGA., ADVOCATE FOR R1 TO R6 AND R8; SRI. SHOBITH N. SHETTY., ADVOCATE FOR R7 AND R9)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED DATED 09.10.2020 IN MISC.NO.03 OF 2020 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC AT KARKALA, UDUPI AS PER ANNEXURE-A AND ETC.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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HC-KAR

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ORAL ORDER

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This petition is filed seeking the following relief:

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"I. Issue writ of certiorari or any other appropriate writ or order to quash the impugned dated 09.10.2020 in Misc. No. 03 of 2020 on the file of Il Additional Civil Jude and JMFC at Karkala, Udupi as per ANNEXURE-A and consequently allow the miscellaneous application in Misc. No.03 of 2020 as prayed for

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II. Issue writ of certiorari or any other appropriate writ or order to quash the impugned award (composite final Decree) dated 06.12.2014 passed in O.S. No. 169/2012 before the Lok-Adalath held at Karkala as per ANNEXURE-B.

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III. Issue any other writ or order or direction that deems fit to grants in the circumstances of the case in the interest of justice and equity."

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Heard Sri.B.S.Sachin, learned counsel

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appearing for petitioner, at the outset submit that he would not be pressing relief No.(1) in the writ petition.

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It is submitted that the respondent No.1 has

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filed a suit for partition and separate possession against petitioner and other family members. In the said suit the

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order sheet indicates that on 16.10.2012, notice of the suit was served on the petitioner by agent. It is further submitted that on 06.12.2014, trial Court considered the application for amendment, filed by the plaintiff and it was allowed, further memo along with two documents filed were accepted. Joint memo filed by the plaintiff, defendant No.4 was accepted and matter was taken before the Lokadalath and the joint memo was allowed, decreeing the suit before the Lokadalath.

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It is submitted that the petitioner who was defendant No.3 never appeared in the suit. Based on the forged General Power of Attorney (herein after referred to as 'GPA') dated 06.11.2014, compromise came to be entered and only after effecting the revenue records, based on such fraudulent compromise decree, he filed Miscellaneous petition, which came to be dismissed on the ground that Miscellaneous petition is not maintainable. Hence, he filed this writ petition.

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It is submitted that the GPA produced by him at Annexure-D shows that the defendant No.3 has signed the same, which is misrepresented before the Lok-adalath. As the petitioner admittedly resides in Udupi as a Bank employee and another family member by committing fraud, presented the GPA and got the decree in their favour.

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In support of his contention, he placed reliance on the decision of this Court in the case of Smt. RENUKA W/o ANAND @ ANANTSA BAKALE V/s. Sri. RAMANAND S/O RAMAKRISHNA BASAWA¹ and

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submits that this Court has issued General directions to be followed by the Trial Courts and the Lokadalath while considering the matter and more particularly, when there is representation through a GPA, the court is required to be more conscious and insists that all the parties to the suit be present to sign the compromise petition. It is also contended that the entire compromise decree before the

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1 2022 3 Kar LJ 709

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Trial Court is fraudulent which requires to be set aside by this Court in this Writ Petition. Hence, he seeks to allow the petition by setting aside the compromise decree.

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Per contra, Sri. Chandranath Ariga, learned counsel appearing for respondent No.1 to 6 and 8 supports the compromise decree and submits that the compromise decree is based on the GPA, that is voluntarily executed by all the family members including the mother of the petitioner and the contesting respondents. It is submitted that if the compromise decree or the GPA is fraudulent nothing has prevented the petitioner from issuing a legal notice to the parties, immediately when he came to know about the GPA. No legal action is taken against the other family members including the notary, before whom all the parties appeared, affixed their signature and photographs. It is submitted that the petitioner is not a layman, he is a bank employee, knowing the consequences of fraudulent GPA, if it is so then no steps have been taken and belatedly he has filed

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Miscellaneous petition which came to be dismissed. The attempt of the petitioner in filing the Miscellaneous petition and this petition is only to harass the subsequent purchaser of the property who acquired the title based on the compromise decree as the value of the properties have

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gone up.

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8. It is submitted pursuant to the compromise

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decree, that the respondent No.6 sold the property in favour of respondent Nos.7, 8 and 9 and after getting to know all these things, these proceedings have initiated and it is just an abuse of process of law. It is submitted that even in the compromise decree it is seen that, equitable distribution of property is made among the family members, taking into account various factors and the petitioner is also allotted the property which can be found in Schedule D to the compromise. Hence, he cannot have any grievance and filing of petition is an after thought, which is required to be rejected.

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HC-KAR

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Sri. Shobith Shetty, learned counsel for

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respondent Nos.7 and 9 supports the arguments of the learned counsel for other respondents and adds that there is an enormous delay on the part of the petitioner in filing of the miscellaneous petition. The miscellaneous petition was filed in year 2020 and the compromise decree is dated 06.12.2014. The petitioner has waited all these years and his clients are the bonafide purchasers who are enjoying the property and without challenging the sale deed executed in their favour, these proceedings have been initiated.

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10. It is also submitted that no notice of alleged

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fraud etc. was issued to the respondent Nos.7 and 9 before filing of miscellaneous petition or this petition. Hence, the assertion made now especially after an enormous delay is clearly an after thought to defeat the rights of the bonafide purchasers. Hence, he seeks to dismiss the petition. He further states that in the Miscellaneous petition filed before the Trial Court, in

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paragraph No.3(b) he asserts that a draft GPA was brought to him for the purpose of rectification of the revenue records. This fact makes it further clear that the petitioner had the knowledge about the GPA and he has also not disputed his signature and photographs in GPA and hence, he seeks to dismiss the petition with exemplary cost.

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I have heard the arguments advanced by the learned counsel for the petitioner and learned counsel for respondents and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced.

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The material on record indicates that respondent No.1 filed O.S.No.169/2012 against the petitioner and other respondents for a relief of partition and separate possession of the suit schedule property. Records indicate that in the said suit, on 16.10.2012, the office note of the order sheet indicates that defendant

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Nos.4 and 6 served personally and defendant Nos.1, 2, 3 and 5 served by agent.

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Order sheet of the Trial Court indicates that on 06.12.2014, the plaintiff filed an application for amendment of the plaint which was allowed, amendment was carried out and memo filed along with two documents were taken on record. Further, it indicates that a joint memo is filed and the said joint memo was called before the Lok-adalath and the memo was filed by the plaintiff- defendant No.4 for himself and as GPA holder of the defendant Nos.1, 2, 3 and 5 and defendant No.6 were present.

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Based on the compromise petition filed by the parties under order 23 Rule 3 and Section 151 of the CPC, Lok-adalath perused the said petition, explained the terms of the compromise to the parties and the parties have accepted the same as true and correct and recorded the findings that the compromise appears to be voluntary and

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lawful and therefore, the same was accepted. Based on the acceptance of the compromise petition, the office was directed to draw the decree. The petitioner filed miscellaneous petition, in Misc.No.3/2020 challenging the compromise decree on the ground of fraud, which came to be rejected on 09.10.2020, by recording the finding that miscellaneous petition is not maintainable. Thereafter, he filed this petition before this Court challenging the compromise decree dated 06.12.2014, entered in O.S.NO.169/2012. The primary contention of the petitioner is that in the order sheet dated 16.10.2012, it is stated that notice on the petitioner was served by agent and no notice is served to him.

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The order sheet on record indicates with regard to service of notice, that notice was served on agent. Admittedly, the petitioner has not placed on record the acknowledgement for having served notice on agent or no records were placed before the Court to accept the contention, the Trial Court has accepted the service of

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notice on the petitioner and proceeded further.

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Furthermore, the contention of the petitioner is that he has not executed the GPA dated 06.11.2014 and the said GPA is a fraudulent one and based on such fraudulent GPA he was represented in the suit and compromise decree is

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drawn. Petitioner produced GPA at Annexure-D. The said GPA is on the E-stamp paper dated 05.11.2014. The GPA indicates signature of all the parties referred in the GPA including signature of the petitioner. Page No.4 of the GPA contains photographs of 4 persons including the petitioner’s photo and the said GPA is notarized in Karkala. Notary has put his seal and signature. The GPA indicates that the parties to GPA have affixed their signature on the said date in the presence of notary. Nowhere in the pleadings of either in the writ petition or in the miscellaneous petition, petitioner has denied photograph at page No.4 and his signature on the GPA. The Aadhar cards of the family members is also found along with the photographs and signature of the petitioner. The notary

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has also to put the serial numbers on the GPA, put his seal and signature. It is admitted fact that the said GPA is entered between the parties on 06.11.2014 and if the said GPA is fraudulent or obtained by misrepresentation of fact, nothing has prevented the petitioner from taking legal action against the other family members and the notary.

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Admittedly, no police complaint is filed against any of the family members whose names are found in the GPA. No complaint is filed against notary, if the GPA is fraudulent, the petitioner would not have kept quiet for so long period. Without laying any foundation of fraud the petitioner made a vague allegation in the miscellaneous petition as well as in this petition contending that the GPA is fraudulent, which cannot be accepted. GPA is executed by the parties on 06.11.2014, based on the said GPA the Trial Court verified it asking the parties who are present, as to whether the compromise is voluntary or not, recorded its satisfaction and thereafter accepted the compromise stating that it is lawful.

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I am of the considered view that Lokadalath has

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followed the procedure provided by this Court in the case of Smt. Renuka (supra) in accepting the compromise petition. This Court also cannot lose sight of the fact that the compromise decree is dated 06.12.2014 and the miscellaneous came to be filed on 02.09.2020 which is nearly a delay of six years. In my considered view, the explanation offered by the petitioner in the miscellaneous petition that there was Covid-19 pandemic and lock-down, etc., are merely an attempt to overcome and give false explanation to the delay.

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The learned counsel for the petitioner contended that the petitioner came to know about the fraudulent decree only after change in the revenue records i.e. in the year 2019. Such a contention cannot be accepted merely on the ground that the petitioner is residing in Udupi and the other family members are residing in another town. Furthermore, even immediately

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after the said knowledge, no legal steps have been taken against the other family members and the Notary. Hence, the explanation offered by the petitioner cannot be accepted.

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19. The Hon'ble Supreme Court in the case of BHARGAVI CONSTRUCTION AND ANR. Vs. KOTHAKAPU MUTHYAM REDDY AND ORS.² held that when there is a challenge to the award of the Lok Adalat, the challenge should be on very limited grounds. In the case on hand, the petitioner failed to make out any ground to interfere with the impugned order. This Court also cannot lose sight of the fact that the petitioner is a highly qualified bank employee and not a layman to the legal proceedings. Hence, the explanation offered by the petitioner for delay cannot be accepted.

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The learned counsel for the respondents rightly contended that in the compromise decree, equitable

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2 AIR 2017 SC 4428

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distribution of the joint family properties is made and the petitioner has been allotted equal share of the joint family properties to which he has agreed and executed the GPA in favour of one of the family members. The records also indicate that the initiation of the proceedings by the petitioner is only after coming to know that one of the brothers alienated his share in favour of the respondent Nos.7 and 9. The third party rights have been created insofar as one of the suit schedule properties and they are not parties in these proceedings. Considering the manner in which the petitioner has pleaded and tried to assert that the GPA is fraudulent and obtained by misrepresentation of fact, cannot be accepted on mere self-serving statement in the petition in the absence of any legally acceptable material on record.

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