Narayana Shetty vs Thimmappa Shetty and Others

N. Kumar, J.—This regular first appeal is filed by the 1st defendant, Sri Narayana Shetty against the judgment and decree passed on 18th February, 2011 in OS No. 76/2007 by the III Additional Senior Civil Judge, Mangalore, D.K, decreeing the suit of the plaintiff and declaring that the plaintiffs and defendants No. 1 and 2 are entitled for 1/4th share each in the compensation amount awarded by the Land Acquisition Officer in respect of the acquisition of item Nos. 1 to 8 of the suit schedule property. Further, it has been ordered that the plaintiffs and defendants No. 1 and 2 are entitled for 1/4th share each in portion of item Nos. 9 i.e. 2 acres of land in Sy. No. 189/3 by metes and bounds.

Today, in this appeal, the parties have filed a compromise petition under Order XXIII Rule 3 of CPC. The same reads as follows:

"1. That the above appeal is filed by the 1st defendant challenging the judgment and decree passed in O.S. No. 76/2007 on the file of the 3rd Additional Civil Judge (Senior Division) at Mangalore. The Plaintiffs have filed the above suit for a decree directing the Schedule Property to be divided in to four equal shares and to allot two such shares to the Plaintiffs with reference to good and bad soil and also for directing the 1st Defendant to give accounts of the Income of the Schedule Property and to give half share to the Plaintiff The trial Court by a Judgment and Decree dated 18.02.2011 has decreed the suit and thereby held that the plaintiffs No. 1 & 2 and Defendants No. 1 & 2 are entitled for 1/4th share each in the compensation amount awarded by the Land Acquisition Officer in respect of the Item 1 to 8 of Schedule properties and also ordered that Plaintiffs and defendants No. 1 & 2 are entitled for 1/4th share each in portion of Item No. 9 i.e., 2 Acres of land in sy. No. 189/3.

During the pendency of the aforesaid Appeal, with the intervention of elders and well wishers, the Plaintiffs/Respondents and Defendants/Appellant have decided to settle the dispute amongst themselves amicably, before this Honourable Court on the following terms and conditions.

It is respectfully submitted that the Suit schedule Item No. 1 to 8 properties are acquired by KIADB on behalf of ONGC project and the amount was in deposit in O.S. No. 76/2007, which was transferred to O.S. No. 109/2009 on the file of Senior Civil Judge, Mangalore. In so far as Item No. 9, the property bearing Sy. No. 189/3, measuring an extent of 2 Acre is concerned, the same was earlier granted in favor of Defendant No. 1 and subsequently the land owners namely UMA B SHETTY challenged the grant and the said grant was set aside. The said property is also subject matter of acquisition and the amount deposited in O.S. No. 109/2009 came to be withdrawn by Uma Shetty and as such the parties herein have no manner of right of whatsoever nature is available in respect of the said land.

During the Pendency of the aforesaid appeal the Plaintiff No. 1/Respondent No. 1 herein died and Respondent No. 1(a) to (d) being his L.Rs were brought on record in the aforesaid appeal. Likewise Defendant No. 2 died during the pendency of suit and her LRs were brought on record as 3(a) and (3)b. However during the pendency of above appeal Resp. No. 3(a) died. Now the Appellant and Respondent No. 1(a) to (d) and Respondent No. 2 and Respondent No. 3(b) have agreed to settle the matter amicably on the following terms and conditions.

The Respondent No. 1(a) Smt. Sampa Shetty, Respondent No. 1(b) Mr. Bharath Sehtty, Respondent No. 1(c), Vidya 1(d), Kavitha being the L.Rs of the Plaintiffs No. 1 collectively agreed to take a sum of Rs. 33,00,000.00 (Rupees Thirty Three Lakhs only) out of the compensation amount deposited in the trial Court. Therefore the cheque for the aforesaid amount may be issued in favour of Bharat T. Shetty Power of Attorney of R 1(a), (c) and (d).

The Plaintiff No. 2/Respondent No. 2 (Mrs. Kamalakshi Shetty) has agreed to take a separate sum of Rs. 33,00,000/- (Rupees Thirty Three Lakhs Only) towards her share from the amount in deposit referred to above.

Since Defendant No. 1/Appellant therein is responsible for protecting the property from the landlords after fighting the litigations for more than 3 decade, the Respondent No. 3(b) has agreed to take only 10,00,000/- out of compensation amount.

The parties respectfully submit that the remaining amount in deposit with interest shall be released in favor of Defendant No. 1/Appellant herein. The other parties have no objection to release the balance amount in his favor.

The parties respectfully submits that the compensation amount, under mistaken impression an inadvertently kept in deposit in O.S. No. 109/2009 on the file of Principal Senior Civil Judge at Mangalore which is already dismissed. The parties in OS No. 76/2007 are entitled to get the said amount released as per the above agreed terms by transferring from OS 109/2009 to O.S. No. 76/2007 on the file of 3rd Additional Senior Civil Judge at Mangalore or any other designated competent Court and they can obtain individual separate cheques in their respective names as mentioned above as the parties to this appeal are only entitled for the share.

The parties have entered in to this compromise at their free will without there being any force, threat, coercion and undue influence. The parties have consented for this compromise with their free consent.

That the compromise entered in to between the parties is valid, legal and the same is not opposed to any law.

In view of the settlement arrived at between the parties it is made clear that either of the party can present this compromise petition before the Court below and get the amount released in their respective names.

Wherefore, the parties to the present petition pray that this Hon''ble Court may kindly be pleased to dispose of the above said appeal in terms of this compromise, in the interest of justice and equity."

The appellant, Sri Narayana Shetty, because of his old age, is unable to be present before Court. Therefore, his son by name Sri Vijaya Kumar Shetty, who is also GPA holder of the appellant, is present before Court. Similarly, respondents No. 1(a), (c) and (d) are not present before Court. They have executed a GPA in favour of the son of respondent No. 1(a) and brother of respondent 1(c) and 1(d), Sri Bharath T Shetty, respondent No. 1(b), who is also present before Court. Respondent No. 2, Smt. Kamalakshi Shetty is not present before Court. She has executed GPA in favour of her husband, Sri Jaganath Shetty, who is present before Court.

Respondent No. 3(a) is dead leaving behind respondent No. 3(b) - son, who represents the interest of Smt. Leela Shetty. Respondent No. 3(b), Sri Sathish Shetty is also present before Court.

The compromise petition is filed today in the Court and is signed by Sri Vijaya Kumar Shetty, son of the appellant, Sri Bharath T Shetty, son of respondent No. 1(a) and brother of respondents No. 1(c) and (d), who is representing the interest of late Thimmappa Shetty. Sri Jaganath Shetty, husband of Smt. Kamalakshi Shetty, respondent No. 2 as GPA Holder has signed the compromise petition. Similarly, Sri Sathish Shetty, respondent No. 3(b) has signed the compromise petition. All the executants, who are present before Court, admit the execution of the compromise petition. The compromise petition is also signed by the respective counsels.

We have gone through the compromise petition. The sum and substance of the compromise petition is that respondent No. 1(a), Smt. Sampa Shetty, respondent No. 1(b) Sri Bharath T Shetty, respondent No. 1(c) Smt. Vidya and respondent No. 1(d) Smt. Kavitha being the L.Rs of plaintiff No. 1 collectively have agreed to take a sum of Rs. 33,00,000.00 (Rupees thirty three lakhs only) out of the compensation amount deposited in the trial Court. Similarly, plaintiff No. 2 has agreed to take a separate sum of Rs. 33,00,000.00 (Rupees thirty three lakhs only) towards her share from the amount in deposit. Respondent No. 3(b) has agreed to take only a sum of Rs. 10,00,000.00 (Rupees ten lakhs only) out of the compensation amount. Remaining amount with interest shall be given to appellant-Narayana Shetty. The compromise petition effected between the parties is lawful, and therefore we accept the compromise petition.

The appeal is disposed of in terms of the compromise petition.

The trial Court shall disburse the compensation amount in terms of the compromise petition by issuing cheques in the names of Smt. Sampa Shetty a sum of Rs. 33,00,000/-; Mrs. Kamalakshi Shetty a sum of Rs. 33,00,000/-; Rs. 10,00,000/- to Sathish Shetty and remaining amount with interest in favour of appellant-Narayana Shetty as per the compromise entered between the parties.

I.A. No. 2/11 is disposed of in terms of the compromise.