Sri Syed Kaleem Ahmed Vs Sri Pillamari

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 26.02.2010 PASSED BY THE 28^TH ADDL. CITY CIVIL JUDGE, BANGALORE IN DISMISSING O.S.NO.16256/2004 AND CONSEQUENTLY ALLOW THE PLAINT AS PRAYED FOR, IN THE INTEREST OF JUSTICE.

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THIS REGULAR FIRST APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE R. NATARAJ

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NC: 2026:KHC:4951 RFA No. 928 of 2010

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed challenging the judgment and decree dated 26.02.2010 passed by the XXVIII Addl. City Civil Judge, Bangalore in O.S.No.16256/2004.

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When this appeal was taken up for final hearing, a compromise petition under Order XXIII Rule 3 of CPC is filed. The relevant terms of which are extracted

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as below:

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“ APPLICATION UNDER ORDER XXIII RULE 3 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE 1908.

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The Appellant and Respondent Nos.6 and 7 submit as follows:-

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1. That the Plaintiff / Appellant herein had filed a suit in O.S.No.16256/2004 before the City Civil Judge, at Mayo hall, Bangalore, against the Defendant Nos. 1 to 7 / Respondent Nos.1 to 7 herein for the relief of Declaration and Permanent Injunction and such other reliefs.

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2. The Plaintiff / Appellant herein is claiming right, title, interest and possession over the Suit Schedule 'C' Property under a registered Sale Deed dated 16/03/2004 from Defendant No.5 / Respondent No.5 [Sri.P.Suresh], who had acquired a portion of the Suit Schedule 'B' Property under a registered Partition Deed dated 02/07/2003 and registered Rectification Deed

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NC: 2026:KHC:4951 RFA No. 928 of 2010

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dated 02/04/2004. The Plaintiff claimed that the Defendant Nos.6 and 7 interfered with his possession alleging that Defendant No.1 has executed a Power of Attorney on 15/06/1993 in favour of Defendant No.7 and by virtue of the same Defendant No.7 sold the Suit Schedule 'A' Property in favour of Defendant No.6, the said documents are forged and hence sought for declaration and permanent injunction.

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3. The Defendant Nos. 1 to 5/ Respondent Nos.1 to 5 herein were claiming right, title, interest and possession over Suit Schedule 'A' Property under a Sale Deed dated 03/10/1960 executed by Muthurayappa in favour of Smt.Nanjamma [mother of Defendant No.1 ] and after the death of Smt.Nanjamma revenue records were mutated in the name of Defendant No.1 and thereafter under the partition between Defendant Nos.1 to 5, portion of Schedule 'B' Property is allotted to Defendant No.3 [Sri.P.Suresh | and also admitted the execution of Sale Deed in favour of Plaintiff in respect of Suit Schedule 'C' Property. The Defendant Nos.1 to 5 also contended that the Defendant No.1 has not executed any Power of Attorney in favour of Defendant No.7 and the alleged Sale Deed dated 07/11/1997 in favour of Defendant No.6 in respect of the Suit Schedule 'A' Property is a created document and sought for decree of the suit.

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4. The Defendant Nos.6 and 7 / Respondent Nos.6 and 7 have filed written statement contending that, Defendant No.1 was the absolute owner of property measuring 200 feet x 25 feet, situated at Sarayi Palya, Thanisandra now called Vidyasagarnagar, Bangalore i.e., Suit Schedule 'A' Property and that Defendant No.1 has executed a Power of Attorney and Sale Agreement dated 15/06/1993 in favour of Defendant No.7 and her children and that Defendant No.7 along with her

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children sold the same to Defendant No.6 as per registered Sale Deed dated 07/11/1997 and that Defendant No.6 is in possession and enjoyment of the Suit Schedule 'A' Property and there is no cause of action and the Plaintiff has not got any right under the alleged Sale Deed dated 16/03/2004 as alleged to have purchased from the 3rd Defendant who had no title to the Suit Schedule 'C' Property and sought for dismissal of suit.

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5. The aforesaid suit in O.S.No.16256/2004 came to be dismissed as per judgment and decree dated 26/02/2010 and the present Appeal is filed by the Plaintiff/Appellant herein challenging the aforesaid judgment and decree.

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6. The subject matter of the dispute between the parties in the present Appeal is in respect of property bearing Site No.4D, Old Katha No.316/1, New Katha No.316/1A, situated at Thanisandra Village, K.R.Puram Hobli, Bangalore East Taluk, (Saraipalya), Bangalore, now called Vidyasagarnagar, measuring East West: 40 feet and North to South: 25 feet, in all measuring 1000 square feet, i.e., the Suit Schedule 'C' Property.

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7. At the intervention of the well-wishers and friends of the Appellant and the Respondent Nos.6 and 7 to the Appeal have arrived at a settlement, which is morefully detailed below and the Plaintiff / Appellant and the Defendant Nos.6 and 7/ Respondent Nos.6 and 7 are accordingly submitting this compromise petition, requesting this Hon'ble Court to record the same and dispose the Appeal in terms of this compromise petition.

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8. The Plaintiff / Appellant and Defendant Nos.6 and 7/Respondent Nos.6 and 7 unconditionally

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withdraw their rival claims and allegations to facilitate this compromise.

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9. The Plaintiff / Appellant and Defendant Nos.6 and 7/Respondent Nos.6 and 7 hereby agree and accept to declare their respective rights and enjoyment in the Suit Schedule 'A' Property to the plaint in the following manner:-

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a) Plaintiff / Appellant and Defendant No.6 / Respondent No.6 hereby declare, confirm and affirm that under this compromise the Plaintiff / Appellant has a 14.2857% i.e., approximately 14% undivided share, right, title and interest in the Suit Schedule 'A' Property and that the Defendant No.6 / Respondent No.6 has a 50% undivided share, right, title and interest in the Suit Schedule 'A' Property.

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b) Plaintiff / Appellant and Defendant No.6 / Respondent No.6 herein, hereby agree and undertake to jointly sell the Suit Schedule 'A' Property along with the other four Appellants [ Sri.S.A.Khaliq Ahmed 1 in RFA.No.927/1010, [Smt.Shahnaz Omer in in in RFA.No.808/2010, | Sri.Ahmed Khan RFA.No.809/2010 and [Smt.Zahida Begum RFA.No.924/2010 and share the sale proceeds according to their respective shares in the Suit Schedule 'A' Property.

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It is hereby agreed by the parties herein that Defendant No.6 / Respondent No.6 [Sri.H.Chandrahasa ] shall be the Vendor and the Plaintiff / Appellant herein and the other Appellants in the other Appeals referred supra shall subscribe their respective signatures as Consenting Witnesses to the Sale Deed to be executed in respect of the Suit Schedule 'A' Property in favour of any intending Purchaser/s.

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NC: 2026:KHC:4951 RFA No. 928 of 2010

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10. It is hereby agreed between the parties herein that the sale of the Suit Schedule 'A' Property shall be made within a period of six (6) months from the date of this Compromise after finding a suitable Purchaser and sell the same for the maximum price offered by the prospective Purchaser.

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11. The Plaintiff / Appellant and Defendant No.6 /Respondent No.6 hereby have arrived at a compromise which is equitable and agreeable to both parties herein.

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12. The Defendant No.7 / Respondent No.7 has no objection for disposing the present Appeal in terms of this Compromise Petition.

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13. The Plaintiff / Appellant admits and declares that apart from his 14.2857% i.e., approximately 14% undivided share in the Suit Schedule 'A' Property, he does not have any kind of right, title, interest over the remaining extent of the Suit Schedule 'A' Property.

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14. The Plaintiff / Appellant hereby declares and undertakes not to claim absolute right, title, interest or possession against the Defendant No.6 / Respondent No.6 over the Suit Schedule 'A' Property based on his registered Sale Deed dated 16/03/2004 and the revenue records based on the aforesaid registered Sale Deed.

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15. The Plaintiff / Appellant and Defendant No.6 /Respondent No.6 further undertake that they shall not have any future claim whatsoever to any extent whatsoever against each other, apart from what is stated above in respect of the Suit Schedule 'A' Property.

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16. It is hereby specifically agreed between the parties herein that the Defendant No.6 /

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Respondent No.6 [ Sri.H.Chandrahasa is at liberty to get the transfer/change/rectify the revenue records in respect of the Suit Schedule 'A' Property into his name and also obtain the E- Khata and pay all taxes in respect of the said property. The Appellant / Plaintiff further undertakes to co-operate with Defendant No.6/Respondent No.6 before the concerned authority and also undertakes to pay his share of monies expended by Defendant No.6 / Respondent No.6 for the aforesaid purposes, including brokerage charges for sale of the Suit Schedule 'A' Property.

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17. The Plaintiff / Appellant and Defendant No.6 /Respondent No.6 hereby agree, undertake, declare, confirm and acknowledge, the good right, full power and absolute authority and the title of each other to convey, sell and transfer the Suit Schedule 'A' Property in favour of any intending Purchaser/s as morefully stated supra and share the sale proceeds according to their respective shares in the Suit Schedule 'A' Property.

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18. The Plaintiff / Appellant and Defendant Nos.6 and 7/Respondent Nos.6 and 7 undertake to execute all other document/s or letter/s or no-objection etc., if necessary, in order to give effect to the terms of this compromise petition.

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19. The Plaintiff / Appellant and Defendant Nos.6 and 7 /Respondent Nos.6 and 7 declare that they have not done any act or deeds or things which will prejudice their respective rights in the Suit Schedule 'A' Property. In case of any claims by the parties claiming under the Plaintiff / Appellant or Defendant Nos.6 and 7/Respondent Nos.6 and 7, the respective parties agree to answer the same and undertake to indemnify and keep indemnified the aggrieved parties from such claims and demands.

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20. The above compromise is entered/signed by the parties out of their free will and volition and the same is without any threat, coercion or undue influence.

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Wherefore the Appellant and the Respondent Nos.6 and 7 humbly pray that this Hon'ble Court be pleased to record the compromise petition, set-aside the judgment and decree dated 26/02/2010 passed in O.S.No.16256/2004 and dispose the Appeal in terms of the compromise petition and further order for refund of the court fee paid by the Appellant, in the interest of justice and equity.

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SUIT SCHEDULE 'A' PROPERTY:

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All that piece and parcel of House Property bearing House List Khata No.819 [ formed in Sy.No.66/5 having Khata No.2760/819], situated at Thanisandra, (Saraipalya) now called Vidyasagarnagar, K.R. Puram Hobli, Bangalore East Taluk, measuring East to West: 200 feet and North to South: 25 feet, in all measuring 5000 square feet and bounded on the :-

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East by :-Government Road. West by :-Private Property. North by :-Private Property; South by :-Private Property.”

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It appears that in terms of the compromise,

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the plaintiff and the defendants have recognized their undivided share, right, title and interest in the suit ‘A’ property.

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NC: 2026:KHC:4951 RFA No. 928 of 2010

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The parties have affixed their signatures to the compromise petition and they are identified by their respective counsel who have joined the proceedings through video conference. The terms of the compromise are perused and the same is accepted as they are not opposed to any law.

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Consequently, the suit filed in O.S.No.16256/2004 on the file of the XXVIII Addl. City Civil Judge, Bangalore as well as this appeal is disposed off in terms of the compromise petition.

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Office is directed to draw a decree in terms of the

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compromise petition.

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Sd/(R. NATARAJ) JUDGE

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BL List No.: 19 Sl No.2.1:

Sri Syed Kaleem Ahmed v. Sri Pillamari

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Sri Syed Kaleem Ahmed v. Sri Pillamari

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