Sri Manjappa Vs Smt Manjula K S

SMT MANJULA K S D/O SHESHADRIRAO K N, AGED ABOUT 54 YEARS, OCC HOUSEHOLD WORK, R/O ANANDA NIKETHANA, 2ND MAIN, 3RD CROSS, GANDHINAGARA, SAGAR TOWN, SAGAR TALUK- 577 401.

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SHESHADRI RAO K N S/O K N SHAYAM RAO, AGED ABOUT 84 YEARS, R/AT FLAT NO.E, BLOCK NO.307, K H B PLATINA APARTMENT, SATELLITE TOWN, KENGERI, BANGALORE- 560 060

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HC-KAR

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SMT. K S SUSHEELA W/O SHESHADRI RAO K N, AGED ABOUT 84 YEARS, R/O FLAT NO.E, BLOCK NO.307, K H B PLATINA APARTMENT, SATELLITE TOWN, KENGERI, BANGALORE- 560 060.

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SMT K ANJANA W/O SATYANARAYAN K, AGED ABOUT 54 YEARS, DOOR NO. 307/19, 13TH MAIN, 5TH CROSS, H.M.T. LAYOUT, IST PHASE, IST STAGE, MATTIKERE, KOKUL, BANGALORE- 560 022.

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SRILAXMI S KULKARNI W/O SREENIVASA K KULAKARNI, AGED ABOUT 52 YEARS, NO.21, IST FLOOR, SURYA BADAVANE, NEAR CHITRA SCHOOL, SRIRAMPURA, 2ND STAGE, MYSURU- 570 023.

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NAGARAJA K S S/O SHESHADRI RAO, AGED ABOUT 47 YEARS, R/AT FLAT NO.E, BLOCK NO.307, K H B PLATINA APARTMENT, SATELLITE TOWN, KENGERI, BANGALORE- 560 060.

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…RESPONDENTS

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A WRIT IN THE NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER DATED 29.06.2019, PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC

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SAGAR IN OS NO.77/2019, WHICH IS PRODUCED AS ANNEXUREK.

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

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CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

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ORAL ORDER

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Heard learned counsel for the petitioner.

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This Court is not inclined to issue notice to respondents as no adverse orders passed against respondents.

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It is the case of the petitioner that his father has filed form No.7 dated 07.08.1974 in respect of Sy.No.24 and other survey numbers. On 27.07.1977, occupancy rights were granted in favour of the petitioner's father in respect of Survey No.24, measuring 2 acres 10 guntas. Along with other survey numbers and form No.10 was also issued in favour of the petitioner. Thereafter, survey No.24 was subdivided (phoded) as survey No.24/1 measuring 2 acres 25 guntas, survey No.24/2 measuring 2

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acres 18 guntas, survey No.24/3 measuring 2 acres 10 guntas, and survey No.24/4 measuring 4 acres 15 guntas out of the total extent of 11 acres 36 guntas in Sy.No.24 including 8 guntas of karab land.

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It is the contention of learned counsel for the petitioner that the petitioner is in possession of Sy.NO.24/4 measuring 4 acres 15 guntas. This being the state of affairs, on 24.04.2019, the respondent No.1 filed the original suit O.S.No.77/2019 for partition against one Sheshadri Rao and others before the Principal Civil Judge and JMFC, Sagar. In the said suit, survey No.24/4, measuring 4 acres 15 guntas, was also included.

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On 29.06.2019 respondent No.1 and other filed

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an application under Order XXIII Rule 3 of the Code of Civil Procedure before the Principal Civil Judge, Junior Division and JMFC Court, Sagar seeking to compromise the said suit. The Compromise petition filed by the respondent

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No.1 and others came to be allowed on the same day, and

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the suit was decreed in terms of the compromise petition.

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It is contended by the learned counsel for the petitioner that the petitioner's property was also partitioned in the said suit without impleading the petitioner as a party to the said suit, which is not sustainable, and same is liable to be set aside.

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Learned counsel for the petitioner orally submits that the compromise decree obtained by the respondents without disclosing the facts of partition and the sale deed registered in his favour and the property which is secured by the petitioner by way of occupancy right has not been mentioned and these aspects are not brought to the notice of Court and the respondents inter se compromised on the matter. Therefore, the petitioner seeks to quash the impugned order dated 29.06.2019 in O.S.No.77/2019 passed by the Principal Civil Judge and JMFC, Sagar.

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8. Petitioner is questioning the compromise decree

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passed by the Principal Civil Judge in O.S. No. 77/2019. If at all the petitioner is aggrieved by the said compromise decree for whatsoever reasons, he is entitled to go before the very same court to challenge the said decree by filing an application or miscellaneous petition against the judgment rendered in the said suit wherein he is neither made a party nor are his properties included in the said partition suit, which has culminated in the compromise decree. Approaching this Court in this petition is not the correct procedure contemplated in law. Therefore, this Court is of the opinion that petitioner shall be given a liberty to challenge the said decree before the very same Court that passed the decree in O.S. No. 77/2019 by filing the necessary applications/miscellaneous petition. The trial Court shall entertain the same as fraud and collusion is alleged in obtaining the compromise decree. Accordingly, I pass the following order.

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ORDER

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The petition is disposed of .

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Liberty is reserved to the petitioner to challenge

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the judgment and decree in O.S.No.77/2019 passed by the Principal Civil Judge and JMFC, Sagara, by filing an application or miscellaneous petition by urging all contentions that are taken up in this petition in view of the fact that the petitioner has produced documents to show that he is recipient of 2 acres 10 guntas of land in Sy.No.24 by virtue of the land tribunal proceedings and two acres from the sale deed dated 05.02.2021 from the respondent No.2.

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