Neelabai and Others vs Channabasappa and Others

K.N. Phaneendra, J.

Heard the learned counsel for the appellants. Perused the judgment of the Trial Court as well as the first appellate Court. The ranks of the parties are retained as per their ranks before the Trial Court in OS No. 107/2003.

The plaintiffs 1 to 5 Channabasappa and others have filed a suit seeking partition and possession in the suit schedule properties particularly claiming half share in the suit schedule properties. It is an undisputed fact that plaintiffs 1 to 5 are the brothers and sisters. Defendant Nos. 1 to 3 are daughters and mother and suit properties are the ancestral joint family properties of plaintiffs and defendants. The defendants 1 to 3 appeared before the Court and in fact contested the proceedings. They have taken up the contention that suit is bad for non-joinder of necessary parties and that the defendants 5 to 8 are not entitled for any share and also the defendants 1 and 2 have perfected their right over suit schedule property by adverse possession. It is also claimed by defendant No. 9, after his appearance that there was a oral partition about 35 years prior to the filing of the suit. Therefore, the suit is not maintainable. The defendant No. 9 also taken up the contention that plaintiff No. 1 and his father Shivanna have executed an agreement of sale with respect to their 1/4th share in property No. 114 of Chimmanagi village vide agreement dated 26.12.1975 and put the defendant No. 9 in possession of the same. Therefore, he is entitled for the relief so far as the share of plaintiff No. 1 is concerned.

In order to prove their rival issues, the plaintiffs have examined themselves as P.Ws. 1 to 4 and they got marked documents Exs. P1 to P12. Defendants also examined five witnesses D.Ws. 1 to 5 and got marked Ex. D1 to D26. After due contest, the Court has framed the following issues on the basis of the rival contentions taken up by the defendants in their written statement and by virtue of the pleadings of the plaintiffs. The said issues are as follows:

"1. Whether the plaintiffs prove that the suit properties are the joint family properties of plaintiffs and defendants?

Whether the defendants No. 1 and 2 prove that they have perfected right over the suit properties by adverse possession as claimed in para-7 of written statement?

Whether the suit is bad for non-joinder of necessary parties?

Whether the defendants No. 5 to 8 prove that they are entitled for 1/4th share in the suit properties?

Whether the plaintiffs are entitled for the relief claimed in the suit?

What decree or order?

Additional Issues:

Whether defendant No. 9 proves oral partition about 35 years back as pleaded in Para No. 3 of written statement?

Whether defendant No. 9 proves that plaintiff No. 1 and his father Shivanna ready to sell their 1/4th share in C.B. No. 114 of Chimmalagi on 12.06.1975 and executed a agreement of sale in favour of father of defendant No. 9 and put him in possession of the same?"

After appreciation of the oral and documentary evidence on record and after hearing the parties, the Court ultimately came to the conclusion that plaintiffs 1 to 5 together are entitled for partition and separate possession of their 1/4th share in survey No. 601/1 by metes and bounds and the defendants 5 and 7 collectively entitled for their 1/4th share in the survey No. 601/1 by metes and bounds. It is also decreed that plaintiffs 1 to 5 are entitled for 1/4th share in the compensation amount and also defendant Nos. 5 and 7 are entitled for their 1/4th share in the compensation amount. The plaintiffs and defendants 5 and 7 are entitled to their 1/4th share of compensation amount from defendant No. 1, defendant No. 2 and defendant No. 4. Consequently, as the Trial Court has awarded 1/4th share in favour of 5 and 7, they were also directed to pay Court fee in order to draw up the preliminary decree. The suit schedule property as could be seen consists of two properties i.e., Survey No. 114 measuring 13 acres 26 guntas and another schedule bearing Survey No. 601/1 measuring 27 acres 35 guntas both are situated at Chimmalagi village.

As the plaintiffs were not satisfied with the judgment and decree passed by the Trial Court in awarding 1/4th share to them, they have questioned the judgment and decree passed by the appellate Court i.e., before the Principal District and Sessions Judge at Bijapur. The other defendants are made as respondents in the said appeal. It is worth to note here that defendant Nos. 1 to 4 against whom the decree has been passed by the Trial Court did not chose to prefer any appeal or cross objection before the first appellate Court.

Before the first appellate Court, the records disclose that respondents 1 and 2 were made their appearance before the Court on 24.8.2010 and respondent No. 3 though served not appeared and he remained ex parte before the first appellate Court. The appellants before this Court are the respondent Nos. 1 and 2 before the first appellate Court and defendant Nos. 1 and 2 before the Trial Court.

Though the appeal was filed in the year 2010, admittedly, till today, the defendants 1 and 2 have not challenged the said judgment and decree passed by the Trial Court, either by way of appeal or cross appeal. Therefore, the said judgment has reached its finality so far as defendants 1 and 2 are concerned.

Before the first appellate Court on 11.07.2013, it appears the appellants as well as respondents 12 and 13 have submitted to the Court that the matter was settled between the parties, that means to say that the appellants admit the share allotted to them by the Trial Court in OS 107/2013. The respondents 1 and 2 have already sold their properties in favour of respondents 12 and 13 and received the sale consideration amount and therefore, they cannot have any objection to the compromise petition. The first appellate Court in fact recorded the compromise petition between the parties i.e., to say the respondents 12 and 13, who have acquired right to Survey No. 601/1 to the extent of 3/4th share by virtue of compromise petition. Hence, the appellate Court held that the compromise petition has to be allowed. It requires to be registered by paying required stamp duty and consequently, the appeal was allowed in terms of the compromise petition entered into between the appellants as well as respondents 12 and 13.

It is also there in the order passed by the Principal District Judge while allowing the compromise petition that though the counsel for respondents 1 and 2 have no objection to the compromise to be recorded so far as 1/4th share of the appellants in Survey No. 601/1, but he has got objection so far as Survey No. 114 is concerned. But as could be seen, some portion of the said land i.e., Survey No. 114 has already been acquired and compensation has already been awarded. Therefore, the Court has come to the conclusion that the respondents 1 and 2 have accepted the judgment and decree passed by the Trial Court, they cannot have any say so far as these two properties are concerned with respect to 1/4th share of appellants. As they have not preferred any appeal against the judgment and decree against Survey No. 107/3 nor they have filed any cross objection within the stipulated period of time. Therefore, the first appellate Court has accepted the compromise and ordered to pass decree in accordance with the compromise petition against which order the present second appeal is preferred.

Though the learned counsel for the appellants tried to convince this Court on facts but failed to show what is the legal infirmity in the order passed by the first appellate Court in order to formulate any substantial question of law to entertain the second appeal. It is a well settled principle in number of rulings of the Hon''ble Apex Court, the second appellate Court shall not interfere with the factual aspects on which inferences have been drawn by the Trial Court or the appellate Court and that it also should not interfere if there is any mere question of law is involved, unless there should be a substantial questions of law involved, and if such substantial question of law is answered by the second appellate Court, it should totally affect the judgment of the Trial Court or the first appellate Court and affect or change the rights of the parties acquired under the judgment of the Trial Court or the appellate Court. If such substantial question of law is not there, in a casual manner the High Court should not interfere with the judgment of the Trial Court or the first appellate Court.

As I have already narrated even at the cost of repetition, it can be safely said that even the compromise between the appellants and respondents 12 and 13 as recorded by the appellate Court, it virtually goes to show that the appellants have admitted that hey have got only 1/4th share and they are satisfied with the judgment and decree passed by the Trial Court to the extent of 1/4th share that means to say virtually they are getting their appeal dismissed by virtue of the compromise petition. If the compromise petition is allowed, the respondents 1 and 2, who are the appellants before this Court must be in a position to show as to how their rights are impaired by means of allowing the compromise petition by the first appellate Court if there is absolutely no infringement of their legal rights or their rights to property is affected and when particularly they have not preferred any appeal against the judgment and decree of the Trial Court they cannot challenge the order passed by the first appellate Court allowing the appellants to compromise the appeal and consequently, disposing of the appeal.

In the above said circumstances, I do not find any strong substantial question of law to be formulated and entertain the second appeal. Hence, the appeal deserves to be dismissed.

Though the learned Counsel for the appellants have sought liberty to the appellants to file the compromise or appeal afresh against the judgment and decree, this Court cannot pass any such order granting any liberty. If any statute provides right to the appellants they can as well exercise their rights in accordance with law of the land. If such right is there, there is no necessity for the Court to grant such liberty to exercise their rights, therefore, I am reluctant to pass such order.

With these observations, the appeal fails at the stage of admission itself and accordingly dismissed.