Smt. v Lakshmidevi Vs Sri. Gangadharaiah

SRI. PAVAN KUMAR M.N. ADV., FOR R1, R2, R6, R8, R9 AND R12 V/O/DTD:20.03.2020 NOTICE TO R11 AND R13 ARE H/S V/O/DTD:07.02.2023 NOTICE TO R5, R7 AND R10 ARE H/S)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI, QUASHING THE COMPROMISE DECREE DATED 30.1.2001 PASSED BY THE COURT OF CIVIL JDUGE (JUNIOR DIVISION) AT MAGADI IN SUIT O.S.NO.40/2001, PRODUCED AS ANNEXURE-G AND ALLOW THIS WRIT PETITION, TO MEET THE ENDS OF JUSTICE & ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 15.07.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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

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CAV ORDER

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This writ petition is filed by the petitioners seeking the

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following reliefs:

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a) Issue a writ of certiorari, quashing the compromise decree dated 30/1/2001 passed by the court of Civil Judge (Junior Division) at Magadi in suit O.S.No.40/2001, produced as Annexure-G and allow this writ petition, to meet the ends of justice.

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b) Issue any other writ, order or direction as this Hon'ble Court deems fit to grant in the circumstances of the case, to meet the ends of justice.

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Sri.Ramaiah Gowda L.M., learned counsel appearing for the petitioners submits that one Sri.Andanaiah filed a suit in O.S.No.40/2001 for a declaration that he is the absolute owner and is in possession of the suit schedule property by an adverse possession. The said suit was presented on 16.01.2001 before the Court. On the very said day, along with the plaint, an application in I.A.No.1 was filed requesting the Court to take up the matter on the same day to record the compromise. It is submitted that the Trial Court listed the said matter on 16.01.2001 and on the said day, the defendants were represented by a general power of attorney holder Sri.B.A.Kambe Gowda. The Trial Court accepted the vakalath as well as the application filed under Order XXIII Rule 3 of the Code of Civil Procedure, 1908, and posted the matter before the Lok Adalath. On 30.01.2001, a joint compromise entered into between the parties was allowed and the decree was drawn. It is further submitted that the GPA holder is none other than the brother-in-law of the plaintiff who has committed fraud and has entered appearance on behalf of the defendants. The defendant No.1-Smt. Subbamma died on

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27.04.1998, which was three years prior to the filing of the suit. It is also submitted that item No.1 of the suit schedule property is a land granted in favour of the defendant No.1 on 23.03.1984 and item No.2 of the suit schedule property is a residential site which was granted in favour of the husband of the defendant No.1 and the father of defendant No.2. The suit filed by Sri.Andanaiah without arraying all the legal heirs of the deceased Sri.Venkata Reddy, itself was not maintainable as after the death of Sri.Venkata Reddy, the petitioners herein were entitled to a share in the property. It is contended that perusal of the averments in the plaint does not meet the requirements of the suit for adverse possession. In the absence of any such pleadings in the plaint, the plaint itself is not maintainable. It is further contended that the entire attempt of the plaintiff in O.S.No.40/2001 was to knock off the property of the petitioners by playing fraud on the Court as well as the petitioners. Noticing the same, the petitioners filed O.S.No.103/2011 challenging the decree of the Lok Adalat dated 30.01.2001 passed in O.S.No.40/2001. However, the Trial Court dismissed the aforesaid suit on the ground that the suit is not maintainable. Hence, he has filed this writ petition.

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It is also contended that the respondents herein are

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the legal heirs and other family members of Sri.Andanaiah and the legal heirs of Sri.B.A.Kambe Gowda claiming to be the GPA holder and both the plaintiff as well as the said Sri.B.A.Kambe Gowda have committed fraud and obtained the decree before the Lok Adalat by suppressing the relevant facts. It is submitted that either the Court or the Lok Adalat, while accepting the compromise reported before them, ought to have ascertained the correctness and the legality of the compromise and after being satisfied, ought to have recorded the findings and then accepted the same. In the instant case, the very same Presiding Officer, who adjudicated the suit, adjourned the matter on the next day and sitting in the same Court acting as a judicial member of the Lok Adalat accepted the compromise, which is impermissible. In support of his contentions, he has placed reliance on the following decisions:

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(1) M/s. ASHOK TRANSPORT AGENCY Vs. AWADHESH KUMAR AND ANOTHER¹

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(2) BHARGAVI CONSTRUCTION AND ANR. Vs. KOTHAKAPU MUTHYAM REDDY AND ORS.²

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1 AIR 1999 SC 1484

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2 AIR 2017 SC 4428

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(3) THE COMMISSIONER, KARNATAKA STATE PUBLIC INSTRUCTION (EDUCATION) AND OTHERS Vs. NIRUPADI BIRBHADDRAPPA SHIVA SIMPI³

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(4) SRI.ANANTHAIAH Vs. SMT.GANGAMMA AND OTHERS⁴

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(5) SMT.POOJA Vs. SRI.SIDDANNA AND ORS.⁵

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(6) SRI.GOVARDHANA AND ANOTHERS Vs. APPI AND OTHERS⁶

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(7) BASWANTHRAO SINCE DECEASED BY HIS LRS Vs. RAJKUMAR⁷

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(8) DANAPPA REVAPPA KOLLI Vs. GURUPADAPPA MALLAPPA PATTANASHETTI⁸

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Hence, he seeks to allow the writ petition.

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Per contra, Sri.Mithun G.A., learned counsel

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appearing for respondent Nos.2 to 4 submits that the petitioner No.2 and his mother have executed the power of attorney in favour of Sri.B.A.Kambe Gowda by receiving Rs.70,000/- and in addition to the power of attorney, they have executed an affidavit. The power of attorney is coupled with interest. Hence, the petitioners have lost interest over the property and based on such a valid power of attorney, the said

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3 ILR 2001 KAR 4338

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4 ILR 2014 KAR 6358

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5 W.P.NO.205205/2019 decided on 18.03.2024

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6 ILR 2015 KAR 3323

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7 ILR 2009 KAR 1099

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8 ILR 1990 KAR 610

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Sri.B.A.Kambe Gowda represented them in the suit and valid decree came to be passed. It is submitted that immediately after the decree, the revenue records were effected in the name of the original plaintiff-Sri.Andanaiah in the year 2001 itself and the petitioner filed O.S.No.103/2011 challenging the compromise decree which was beyond the period of limitation and after the dismissal of the same, this petition is filed which cannot be entertained. It is further submitted that the petitioners are required to get a declaration of title and thereafter, they can maintain the present petition as on the date of execution of GPA by receiving Rs.70,000/- they have lost interest in the property and it is not the case of the petitioners that the GPA is fraudulently obtained. It is also submitted that the petitioners have not challenged the revenue records standing in the name of Sri.Andanaiah even now, which creates a presumption that the said Sri.Andanaiah and thereafter his legal heirs are in possession of the property in question. It is contended that the petitioner No.2 is a party to the GPA and unless that GPA is revoked, he can neither maintain any proceedings nor claim any right over the property. It is further contended that the petitioner No.1

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Sri.V.Lakshmidevi claiming to be the daughter of Smt.Subamma-defendant No.1 in the suit is a stranger to the proceedings and she cannot maintain the petition. It is also contended that third party rights have been created and insofar as the petitioner No.1 is concerned, she cannot challenge the compromise decree after a period of more than 20 years. It is submitted that in O.S.No.103/2011, the petitioners have shown false cause of action to maintain the suit as they were well aware that the revenue records were standing in the name of the original plaintiff from the year 2001. In support of his contentions he placed reliance on the decision of the Hon'ble Supreme Court in the case of BHARGAVI CONSTRUCTION referred supra and contended that when there is a challenge to the award of the Lok Adalat in a writ proceedings, the scope is very limited. He has also placed reliance on the decision of this Court in the case of O. LEELAVATHI AND OTHERS Vs. M. NEELAKANTA NAIDU AND OTHERS⁹ and the decision of the Full Bench of the Andhra Pradesh High Court in the case of P.V.NARAYAN Vs. APSRTC, HYDERABAD AND OTHERS¹⁰

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and contended that even in a writ petition, the aspect of delay

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9 ILR 2006 KAR 4637

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10 2013 SCC Online AP 729

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is required to be considered more particularly because of the delay, harm would be caused to the third party. He has also relied on the decision of this Court in the case of RAVINDRA Vs. VIMAL AND OTHERS¹¹ and contended that only the parties to a compromise can challenge the compromise decree on the ground that the terms of the compromise was not lawful, as no third party would be bound or affected by it. Hence, he seeks to dismiss the petition.

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I have heard the learned counsel for the petitioners, learned counsel for the respondent Nos.2 to 4 and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides.

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The pleading and material on record indicates that the petitioners are the son and daughter of late Sri.Venkata Reddy and Smt.Subbamma. The respondent Nos.1, 5 to 10 are the children and the respondent Nos.2 to 4 are the daughter-inlaw and grand children of late Sri.Andanaiah. The respondent Nos.11 to 13 are the children of late Sri.B.A.Kambe Gowda.

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11 2015 SCC online KAR 9716

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The mother of the petitioner was granted land measuring 1 acre 30 guntas in Sy.No.116 (re-numbered as Sy.No.116/6) situated at Basavanahalli Village, Solur Hobli Magadi Taluk, on 23.03.1984. Smt.Subbamma expired on 27.04.1998 and the petitioners are the legal heirs. The father of the petitioners Sri.Venkata Reddy was allotted a residential site bearing No.68 carved out of Sy.No.67 measuring 40 x 50 feet situated at Pemanahalli Village, Solur Hobli, Magadi Taluk. The records indicate that the father of the petitioners predeceased his wife. It is averred that the parents of the petitioners were in possession and enjoyment of the properties and later, they succeeded to their estate.

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One Sri.Andanaiah filed O.S.No.40/2001 seeking the relief of declaration and injunction against late Smt.Subbamma and the petitioner No.2 herein on 16.01.2001. Admittedly, on the date of filing of the suit, Smt.Subbamma was not alive. The records indicate that on the date of filing of the suit, late Sri.B.A.Kambe Gowda filed a vakalath as a GPA holder of the defendants in the suit along with an application under Order III Rule 2 of the CPC. The Trial Court permitted

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him to defend the case as a power of attorney holder of the defendants. On the very same day, the plaintiff and the GPA holder of the defendants filed a compromise petition in the said suit and the matter was referred to the Lok Adalat. On 30.01.2001, the Lok Adalat accepted the compromise petition and accordingly, a compromise decree was passed in the said suit. The aforesaid events indicate that the suit was filed on a particular date and on the said day, the GPA holder of the defendants was present, he filed an application to defend the suit, the Trial Court accepted the same, the matter was referred to the Lok Adalat, the compromise petition was accepted and the decree was drawn. The contention of the petitioners is that the alleged GPA dated 22.12.1994 was never executed by Smt.Subbamma and the petitioner No.2-her son and on the basis of a forged GPA, Sri.B.A.Kambe Gowda has represented the defendants in the suit, got compromised and the decree was drawn. Admittedly, on the date of the filing of the suit, Smt.Subbamma was not alive and no notice was issued to the petitioner No.2 in the suit which creates a doubt in the mind of the Court with regard to the correctness of the GPA.

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The petitioners filed O.S.No.103/2011 seeking a declaration that the judgment and decree in O.S.No.40/2001 is null and void, not binding on the plaintiff and sought to set aside the judgment and decree dated 30.01.2001. The Trial Court dismissed the suit vide judgment dated 29.08.2018 holding that the compromise decree passed in O.S.No.40/2001 is before the Lok Adalat. Hence, the suit is not maintainable. The said finding of the Trial Court is in consonance with the settled position of law. The petitioners have filed this writ petition challenging the compromise decree entered before the Lok Adalat.

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The contention of the petitioners is that their mother Smt.Subbamma and the petitioner No.2 never executed the GPA dated 22.12.1994. Admittedly, the executant of the GPA Smt.Subbamma was not alive on the date of presentation of the plaint i.e. 16.01.2001. Hence, the GPA cannot be the basis to represent the defendants in O.S.No.40/2001 and the decree passed before the Lok Adalat is against a dead person. The contention of the learned counsel for the respondents is that the late Smt.Subbamma and the petitioner No.2 have

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received Rs.70,000/- and executed the GPA as a result of which they have lost any interest in the suit property. However, there

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is no such covenant in the GPA. Admittedly, the land measuring 1 acre 30 guntas was granted to late Smt.Subbamma. However, the GPA in question indicates that the land is measuring 2 acres and this circumstance also creates suspicion with regard to the genuineness of the GPA. It is trite law that the judgment and decree passed against a dead person is void and that no right or interest is transferred by way of a Power of Attorney. In the case on hand, based on the GPA, Sri.B.A.Kambe Gowda entered appearance before the Court on behalf of the dead person and the petitioner No.2 and signed the compromise decree before the Lok Adalat. Hence, the judgment and decree of the Lok Adalat is void. It would be useful to refer to the decision of the Hon'ble Supreme Court in the case of SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED Vs. STATE OF HARAYANA AND ANR.¹² at paragraph 20 held as under:

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"Scope of power of attorney

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20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an

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12 (2012) 1 SCC 656

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immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."

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This Court in the case of SMT.RENUKA Vs.

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SRI.RAMDAS AND ORS.¹³ held as under:

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"17. Apart there from there is a procedural irregularity in inasmuch as the compromise petition was filed before the Court and thereafter the matter referred to Lok-Adalat for recordal of the compromise. This Court in Smt. Akkubai vs. Shri Venkatrao and Others ILR 2014 KAR 2051] has severely deprecated the said practice. Para 11 of the said judgment is reproduced hereunder for easy reference:

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"11. I really wonder, whether the learned Judge who has entertained this matter was aware of the elementary aspects of judicial functioning and the Lok Adalath. A common order-sheet cannot be maintained by the Court as well as the Lok Adalath. A Court cannot be converted into a Lok Adalath. In the order-sheet maintained by the Court, a portion of the proceedings is referable to the Court proceedings and another portion refers to the proceedings of the Lok Adalath. The Conciliator has no place inside the Court. The very object of accepting this Lok Adalath as an alternative mode

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of resolution of dispute is that, all matters do not need adjudication. The matter which could be resolved by persuasion, negotiation and understanding should be taken out of adjudication process and should be resolved by means of Lok Adalath satisfactorily, so that the cases are disposed of expeditiously and the Courts will be saving the time of adjudicatory process, and they can utilize that time which is saved, in adjudicating the cases. If on the day the plaint is presented, the parties are also present before the Court, they are ready with the compromise petition and when they are filing an application under Order 23 Rule 3 CPC, when they are admitting the terms of the compromise and execution of the terms and condition, then the Court before which it is presented, is the competent Court to record the compromise and dispose of the suit in terms of the compromise. The question of referring the said dispute to the Lok Adalath would not arise. If it is referred, it is a farce. If this is accepted and encouraged, both the judicial system and this alternative dispute resolution mechanism gets a bad name and would be subjected to redicule in the eyes of public. All persons who are indulging in this process would be doing great injustice and disservice to the judicial system. They are not conscious of their action and its repercussions and the image of the Judiciary, which would create in the mind of the public. That is not the object with which neither Legal Services Authority Act of 1987 is passed by the Parliament providing for the institution of Lok-Adalath nor Section 89 was introduced by the Parliament amending CPC. The essence of these provisions is neither understood by the learned Judge nor by the learned Counsels who are appearing for the parties.

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18. This Court has held that such a practice of recording compromise before the Court and thereafter referring to Lok-Adalat is not contemplated in the Legal Services Authorities Act, 1987 and such compromise if

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recorded before the Lok-Adalat is required to be set aside.

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19. Applying the Ruling to the present case as also for the reasons aforesaid, I am of the considered opinion that the petition is required to be allowed.

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20. This Court has also been coming across several matters relating to such compromise before the LokAdalat which are challenged by way of writ petitions. Hence, I also deem it fit to issue general directions in respect of such matters which are referred to Lok-Adalat and compromise recorded as under:

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(i) When a compromise is filed before the Court in terms of the decision in Smt.Akkubai vs. Shri Venkatrao and Others [ILR 2014 KAR 2051] (supra) it is for the Court to record the compromise and not refer the matter to the Lok-Adalat.

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(ii) It is only if there is no settlement arrived at before the Court and the parties request for the matter to be referred to Lok-Adalat to enable a settlement then in such event the parties are to be referred to the Lok-Adalat and in the event of a compromise being arrived at before the Lok-Adalat, the same could be recorded by the Lok-Adalat.

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(iii) When the matter is referred to Lok-Adalat, separate order sheets would have to be opened and maintained by the said Lok-Adalat and the order sheet of the Court in the suit cannot be used by the Lok-Adalat.

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(iv) The trial Court and or the Lok-Adalat while recording compromise is required to ascertain if the parties are present personally as also to ascertain and verify their identities by production of suitable documentary proof.

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(v) In the event of a power of attorney appearing, it would be the bounden duty of the Court or the Lok-Adalat to ascertain if the concerned party has been served with notice.

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(vi) The Court as also the Lok-Adalat would always have to be suspicious if the party were to enter appearance even before service of notice which is a red flag that there is something that is fishy in the matter.

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(vii) When recording a compromise being entered into by a power of attorney, the original of the power of attorney is required to be examined by the Court and the Lok-Adalat and necessary endorsement made in the order to that effect and the original power of attorney returned to the parties.

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(viii) As far as possible the trial Court and or the Lok-Adalat to secure the presence of the party and obtain signature of such party rather than the power of attorney.

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(ix) The Trial Courts shall ensure that proper and acceptable proof of identity of the parties to proceedings as mandated by the Government for various purposes (such as Aadhar Card, Driving

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Licence, Passport Copy, Election Identity card, etc.,) are obtained as a matter of rule."

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In the case on hand, neither the Trial Court nor the Lok Adalat, while recording the compromise based on the GPA, followed the procedures. The Trial Court as well as the Lok Adalat ought to have examined the averments in the plaint, prayer sought and the compromise entered before accepting the same. Sri.Andanaiah filed O.S.No.40/2001 for the relief of declaration that he was the absolute owner in possession of the suit schedule property by adverse possession and consequential relief of injunction. It is trite law that the plaintiff needs to specifically aver that on what date he came in possession, what was the nature of his possession, whether the factum of possession was known to the other party, how long his possession had continued and how long his possession was opened and undisturbed. None of these averments are found in the plaint. Furthermore, the compromise petition filed by the plaintiff and the GPA holder also does not indicate any of these facts. The chronology of events referred supra , taking note of the averments made in the plaint and the compromise petition and the order sheet of the Trial Court, I am of the considered

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view that the Trial Court as well as the Lok Adalat have accepted the compromise petition without ascertaining any of the facts and consequently, the decree in O.S.No.40/2001 was passed against a dead person based on the seriously disputed GPA. It is the duty of the Court and the Lok Adalat to consider the pleading, prayer sought and the clauses of compromise as to whether the petition filed under Order XXIII Rule 3 of the CPC is valid and is in accordance with law. In the instant case, no such exercise has been carried out by the Trial Court as well as the Lok Adalat which resulted in passing of the impugned decree. The Hon'ble Supreme Court in the case of GURMAN SINGH (DEAD) THROUGH LEGAL HEIRS Vs. GURBACHAN KAUR (DEAD) THROUGH LEGAL HEIRS¹⁴ at paragraph 21 held as under:

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"21. It is a fundamental principle of law laid down by this Court in Kiran Singh case [Kiran Singh v. Chaman Paswan, AIR 1954 SC 340] that a decree passed by the court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree-holder. The reason is that the defect of this nature affects the very authority of the court in passing such decree and goes to the root of the

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case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a court for or against a dead person is a “nullity” (see N. Jayaram Reddy v. LAO [N. Jayaram Reddy v. LAO, (1979) 3 SCC 578] , Ashok Transport Agency v. Awadhesh Kumar [Ashok Transport Agency v. Awadhesh Kumar, (1998) 5 SCC 567] and Amba Bai v. Gopal [Amba Bai v. Gopal, (2001) 5 SCC 570] )."

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The Hon'ble Supreme Court in the case of M/s. ASHOK TRANSPORT AGENCY referred supra , held that the decree passed in a suit against a dead person is a nullity and cannot be executed.

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The contention of the learned counsel for the respondents is that there is enormous delay in filing of the petition and in support of the same, he placed reliance on the decisions of P.V.NARAYAN and O.LEELAVATHI referred supra . The said decision laid down the law that whenever there is a delay, the Court must necessarily refuse to entertain the petition and as due to the delay, third party rights may have accrued. In the case on hand, the petitioners have specifically averred that immediately after the legal heirs of Sri.Andanaiah

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came to dispossess them, they filed a suit in O.S.No.103/2011 and after dismissal of the same, the present petition is filed. There is no doubt that there is delay in filing this petition. In my considered view, the said delay cannot enure to the benefit of the respondents as the entire exercise of the plaintiff and the defendants in O.S.No.40/2001 is vitiated by fraud.

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The contention of the respondents is that the petitioner No.1 not being a party to the compromise cannot maintain the writ petition and in support of the said contention, he placed reliance on the decision of this Court in the case of RAVINDRA referred supra. The petitioner has specifically contended that the petitioner No.1 is the daughter and the petitioner No.2 is the son of late Smt.Subbamma and a fraud has been alleged. Hence, this Court cannot direct the petitioner No.1 to file a separate suit and the petitioner No.2 to maintain this petition. Hence, the said contention has no merit and is accordingly rejected. Further, the contention of the learned counsel for the respondents that the decree is required to be challenged within a period of three years and the filing of the suit and this petition is beyond the period of limitation is

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also required to be rejected. The petitioners have specifically contended that as soon as the respondents tried to dispossess, they verified the records and then they came to know that the revenue records were mutated based on the fraudulent decree and then initiated the legal proceedings. Hence, the contention with regard to delay is required to be rejected as already this Court has recorded the finding that the compromise decree is obtained by fraud.

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The Hon'ble Supreme Court in the case of BHARGAVI CONSTRUCTION referred supra , held that the award of Lok Adalat can be challenged only by filing a writ petition under Article 226 of the Constitution of India.

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It is also trite law that the functions of the Lok Adalat relates purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement at its instance and put its seal of confirmation by making an award in terms of the compromise or settlement. Therefore, if the parties have already entered into a compromise and report the same by filing a compromise petition before the Court, nothing

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else is required to be done in the matter and the Civil Court would not be justified in referring the same to the Lok Adalat. Furthermore, it is also the duty of the Court to look into the compromise and ascertain whether the same is lawful or not. It is the duty of the courts to ensure that the compromise is not arrived at by fraud or collusion, as a collusive decree/order is non est in the eye of law and void ab initio. This view of gains support from the decision of this Court in the case of SRI. ANANTHAIAH, referred supra.

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Considering the enunciation of law laid down by the Hon'ble Supreme Court and this Court, I am of the considered view that the compromise entered in O.S.No.40/2001 between the original plaintiff-Sri.Andanaiah and the defendants represented by their alleged GPA holder-Sri.B.A.Kambe Gowda on the strength of the GPA dated 22.12.1994 is a fraudulent act as elaborately explained supra and the Trial Court, without considering the correctness of the contents of the compromise petition, entertains the same and refers to the Lok Adalat and the Lok Adalat also records the compromise without following

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