Narayanaswamy N.E. and Venkatamma vs Venkateshappa Dead by LRs and Others

Jawad Rahim

Second appeal by the plaintiffs against the judgment in R.A. Nos. 126/07 and 1/07 by which the appeal filed by the respondent in R.A.1/07 is allowed and the judgment and decree in O.S.176/03 is set aside.

Appellants and respondents are present. They have filed an application reporting settlement of the dispute amicably between them on the following terms:

a) It is mutually agreed between the parties that there is already a oral partition long ago but there are no documents to the said effect In that oral partition, the Item Nos.2 & 4 of the suit schedule properties being only ancestral and joint family properties came to be divided equally between the predecessor of the appellants by name Erappa and the deceased first respondent Venkteshappa, being the full blood brothers. Since, there are no documents to evidence the partition by metes and bounds, in the interest of both the parties, it is agreed to grant a decree for partition in respect of those items of the suit schedule properties by dividing equally between both the parties by dividing equally between both the parties by metes and bounds. Accordingly, the item Nos. 2 & 4 of the suit schedule properties are divided equally by metes and bounds and separate schedules are given hereunder. Therefore A-schedule property covering the share of the respondents i.e. LRs of the 1st defendant in respect of item No.2 & 4 of the suit schedule property is separately described hereunder and the same is towards the share of the branch of deceased Venkateshappa, 1st respondent. Similarly the share of the appellants in item Nos. 2 & 4 of the suit schedule properties is described in the B-schedule by metes and bounds and the same is towards their share. A road is existing in Sy.No.168 for the benefit of both the parties towards northern side of Sy.No.168 i.e. item No.4 of the suit schedule property and the same shall be kept for free ingress and the appellants shall not disturb the use and enjoyment of the respondents for their ingress and aggress to reach their property allotted to their and vice versa. The ingress and aggress shall mean and include passing of tractors, bullocks, bullocks, bullock carts by each of the parties herein in their agricultural operation. The same shall only exclusively meant for shares for whom the said item is allotted to sriramappa and Smt. Saraswathamma towards the eastern side.

b) The appellants shall obtain independent mutation and RTC entries in respect of lands described in the B-schedule and they shall deal with the same independently as their absolute property. The respondents have already obtained independent mutation and RTC entries in respect of their share described in the A-schedule property in pursuant to the oral partition and accordingly they are in possession and enjoyment; Even the appellants also are in separate possession and enjoyment of B-schedule property pursuant to the oral partition.

c) The Item No.1 of the suit schedule property i.e. Sy.No.26/2A measuring 1 acre 12 guntas of Nukkanahalli Village is the exclusive property of deceased Venkateshappa / Sri N.V. Ramacnandrappa, (3rd respondent). Now the same is divided between the respondents 3, 5 and 6. Hence, the appellants have no right or share over the same.

d) The item No.3 of the suit schedule property i.e. Sy.No.69/3 measuring 35 guntas, situated at Nukkanahalli village is the self acquired property of wife of deceased first respondent by name Muniyamma who is no more. Now by virtue of compromise petitioner, 0.12 guntas of land in Sy.No.69/3, agreed to be given to the share of the appellant by way of concession. The remaining 0.23 guntas shall be continued and retained by the respondents as their individual properties. The said 12 guntas given to the appellants is described in the C-Schedule hereunder and the remaining O 23 guntas retained by the respondents is described in D-schedule given hereunder.

e) The C-schedule property given to the appellants through this compromise, shall be possessed, enjoyed and dealt with the same as their absolute property without any let or hindrance from the respondents. The appellants have been out into independent physical possession of the C-schedule property. The appellants shall obtain independent mutation in their name pursuant to this compromise petition and also get their name entered into the RTC to the said effect. The appellants do get right, title and interest in respect of C-schedule property.

f) The respondents shall get modified their mutations and RTC entries in respect of Sy.No.69/3 in pursuant the terms of this compromise. Accordingly they shall possess and enjoy the D-schedule property without any let or hindrance.

g) The item Nos. 5 & 6 are the landed properties which are independently acquired by the predecessor of the appellant and deceased 1st respondent in different extents by filing form No.7 against their landlord. The land tribunal kolar vide its order dated 11.10.1981 proceeding No.LRF/272/74-75 and No.LRF/277/74-75 was pleased to confirm the occupancy right separately and independently to different extents in favour of the predecessor of the appellant and deceased 1st respondent. Separate form No.10 came to be issued to them by the competent authority confirming occupancy right and as such, those lands are self acquired properties of the predecessor of the appellant and deceased 1st respondent. The survey numbers involved in the land reforms proceedings are Society.No.137 and 138 of Nukkananhalli Village. The appellants are entitled to an extent of land as per the Land Tribunal order Kolar, in respect of Sy.No.137 item No.2 in E-schedule of this Compromise petition. The extents granted in favour of the predecessor of appellants in Sy.No.137 and 138 of Nukkananahalli village is described in E-schedule given hereunder. Similarly the extents granted in favour of the deceased 1st respondent is described in the P. schedule is given hereunder. Both the parties are in separate possession and enjoyment of their respective lands in those survey numbers in pursuant the confirmation of occupancy right. There are separate mutation orders in respect of their separate extents. However, there is a joint RTC by showing different extents as there is no phoude of lands.

h) The 4th respondent herein is got deleted in the above appeal is she is not available for signing the compromise petition and to accept the same before this Hon''ble Court. In this circumstances, the respondents have undertaken to satisfied her claim and share in the family properties without giving any room for further litigation in that regard against the appellants.

i) It is mutually agreed that there are no any other property or properties to be divided between the parties and it is further declared that they are separate and independent and the erstwhile joint family is already severed and disintegrated. Accordingly, there are no claims against each other.

j) It is solemnly affirmed and declared that each of them shall not meddle with the property of other sharers in any manner and they shall maintain peace and cordiality. Both the parties especially shall not cause any pin pricks or harassment against each other and they shall live harmoniously and cordially. The appellants undertake to do so.

k) It is mutually agreed that this compromise is final and same shall not be re-opened or questioned in any court of law in future by any of them or their legal hairs.

l) This compromise is lawful and the same has been entered into voluntarily and on their self volition and after understanding the contents and the legal consequences of it. Accordingly, there is no coercion, undue influence; exercise of fraud or misrepresentation against each other.

Wherefore, the appellants and the respondents humbly pray that this Hon''ble Court be pleased to modify the judgment and decree of the 1st appellate court i.e. Principal District Judge, Kolar passed in R.A.1/2007 dated 21.11.2007 and dispose of the above appeal in the terms of the compromise petition, in the interest of justice and equity.

Parties admit execution of the compromise and that they have affixed their signature after understanding its terms and know the consequences flowing therefrom.

A memo is filed by the learned counsel for the appellant to delete respondent no.4-Saraswathamma from the party array. As desired in the memo, but at the risk of the appellant, respondent no.4 is deleted.

On perusal, I am satisfied the terms are lawful and it would aid the parties to put an end to the lis between them. As they are proximately related, it is in their interest to get the issues resolved by entering into compromise. Hence, the compromise petition is accepted.

The appeal is allowed in terms of the joint memo agreed upon. Draw up decree accordingly.