Snehalata and Others vs Suresh and Others

S. Abdul Nazeer, J.—This appeal is directed against the judgment and decree in Original Suit No. 309 of 2012 dated 15th September 2015 on the file of the Principal Senior Civil Judge and JMFC, Hubballi.

The appellants are the plaintiffs in the suit and the respondents are the defendants. The suit was filed by the plaintiffs for partition and separate possession of the suit schedule properties. The Court below has awarded 1/4th share each in the suit schedule properties in favour of the plaintiffs/appellants.

Learned counsel for the plaintiffs/appellants and respondent Nos. 1 to 8 submitted that the matter has been amicably settled between the parties.

Learned counsel for the appellants has not pressed the appeal against respondent Nos. 9 to 12. Hence, the appeal is dismissed against them.

Respondent No. 3/Smt. Suvarna Vinaya Jartarghar is represented by her mother and power of attorney holder-Smt. Vijayalaxmi Suresh Jituri, respondent No. 1 herein. Sri. Basavaraj Irappa Kamatagi is the power of attorney holder for respondent Nos. 5 to 8.

Appellants, respondent Nos. 1, 2, 4 are present. Respondent No. 3 is represented by her power of attorney holder-respondent No. 1. Sri. Basavaraj Irappa Kamatagi, the power of attorney holder of respondent Nos. 5 to 8 is also present before the Court. The parties are identified by their respective learned Advocates.

Learned counsel for the parties submit that the matter has been amicably settled between the parties. They have filed a compromise petition under Order XXIII Rule 3 of the Code of Civil Procedure, 1908, reporting the terms of settlement. The compromise petition is signed by the parties so also their respective learned Advocates, which reads as under:

"Compromise petition under Order 23 Rule 3 of Civil Procedure Code

Appellants and Respondents No. 1 to 8 have settled the dispute amicably in the presence of well-wishers and set out the facts and terms of settlement as under.

FACTS IN BRIEF

Genealogy of Appellants and respondent No. 1 to 4 is as under

Respondents No. 5 to 9 are purchasers of suit A schedule property from respondent No. 4 and late Suresh Jituri the father of respondents 2 and 3 and husband of 1st respondent. Respondents'' No. 5 to 9 are not related to family of appellants and respondents No. 1 to 4.

The appellants had filed suit at O.S. No. 309/2012 on the file of Principal Senior Civil Judge at Hubli for the following relief.

a. It be declared that, the alleged Agreement of Sale dated 13-09-2009, allegedly executed by defendants No. 1 & 2 in favor of defendants No. 9 & 10, is not binding on the Plaintiffs.

b. It be declared that, alleged Registered Sale Transaction and Sale Deed dated 30-10-2010 allegedly executed by defendants No. 1 & 2 in favour of defendants No. 5 to 9, is also not binding on the Plaintiffs.

c. It be declared that the gift deed executed by the defendant No. 1 in favour of his daughters to be held valid to the extent of 1/5th share only.

d. Preliminary Decree may kindly be drawn for effecting partition and separate possession of the suit A and B properties by meets and bounds and each of the plaintiffs be put in actual and possession of the suit properties to the extent of their 1/4th share in suit A and B schedule properties.

e. A Preliminary Decree may kindly be drawn for effecting partition and separate possession of the suit C schedule properties by meets and bounds and each of the plaintiffs be put in actual and possession of the suit properties to the extent of their 3/10 share in suit C schedule properties.

f. Direction may kindly be issued to hold enquiry to ascertain the past and future profits payable to plaintiffs.

g. Cost of the suit may kindly be ordered and decreed in favor of plaintiffs.

h. Such other and further relief as this Hon''ble Court deems fit and proper may kindly be ordered in favor of plaintiffs, as the circumstances arise.

i. The suit was clubbed with O.S. No. 120/2012 on the file of Principal Senior Civil Judge at Hubli. O.S. No. 120/2012 was suit for specific performance of contract dated 07-04-2009 alleged to have been executed by mother of applicants Ambubai in respect of suit C schedule property. The said suit at O.S. No. 120/2012 is dismissed. The plaintiff in O.S. No. 120/2012 did not lead any evidence in this suit.

The O.S. No. 309/2012 is decreed in part, vide judgment dated 15-9-15, awarding 1/2 shares to appellants and 1/2 share to respondents No. 1 to 4. The claim of the appellants to 1/5th share of their mother Ambubai by virtue of Registered gift deed dated 06-01-2011 in respect of suit C schedule property is rejected. The claim for mesne profits is also rejected. The appellants have preferred instant appeal in respect of disallowed claim.

Considering the fact that original defendants No. 1 and 2, had sold suit A schedule property to original defendants No. 3 to 7 (present respondents No. 5 to 9) and also considering the relationship of the parties, the well wishers of the appellants and respondent No. 1 to 9 persuaded the parties to amicably settle the dispute. The appellants and respondents No. 1 to 9 held discussions to resolve the dispute and got the dispute resolved and have thought it fit to have the compromise decree in terms of the settlement arrived at among them. Accordingly present petition is filed comprising following terms of settlement.

Appellants in consideration of relationship with respondents No. 1 to 4, will claim no share in the said A schedule property awarded by the trial court and the same is allotted to the share of respondents 1 to 4. The Appellants and respondents No. 1 to 4 admit that suit A schedule property has been sold to defendants No. 3 to 7 (present respondents No. 5 to 9) as per Registered sale deed dated 30-09-2010 by original defendants No. 1 and 2. Hence as decreed by the trial court, by way of adjusting the equity, the suit A schedule property be declared as absolute property of respondents No. 5 to 9. Accordingly appellants and respondents No. 1 to 4 also admit that respondents No. 5 to 9 are in exclusive possession of the suit A schedule property and appellants and respondents No. 1 to 4 shall have no right, title and interest over the suit A schedule property.

The suit B schedule properties comprise a residential house and a vacant site. The residential house is occupied by respondents No. 1 to 4. Appellants in consideration of relationship with respondents No. 1 to 4, will have no share in the suit B schedule properties awarded by the trial court. The appellants acknowledge that respondents No. 1 to 4 are joint owners in possession of suit B schedule properties. The respondents No. 1 to 3 together have 1/2 share in suit B schedule properties and respondent No. 4 has got 1/2 share in suit B schedule properties.

The appellants and respondents No. 1 to 4 admit and acknowledge that suit C schedule properties were acquired by father of appellants Tukaramsa Jituri in terms of Registered sale deeds dated 12-06-1974 and 03-01-1962. The said properties were self acquired properties of Tukaramasa Jituri who died intestate on 06-02-2005. On his death each of the appellants, mother of the appellants Ambubai, respondent No. 4, and late Suresh Jituri (brother of the appellants) succeeded to 1/5th share in suit C schedule properties. The appellants together thus succeeded 2/5th share in the suit C schedule properties on their own, which comes to 40% share in suit C schedule properties. Mother of appellants who had 1/5th share in the suit schedule properties gifted her entire share in suit C schedule properties to appellants vide registered gift deed dated 06-01-2011 Registered before sub registrar Hubli at deed No. HBL-1-12273-2010-11.CDNO.HBLD 187 dated 07-01-2011. The respondents No. 1 to 4 disputed execution of said gift deed. Ambubai died intestate. Even in the absence of proof of execution of gift deed, Ambubai''s 1/5th share would devolve equally on each of the appellants and her 2 sons Suresh and Jayachand. Suresh died during the pendency of the suit and now represented by legal representatives namely respondents No. 1 to 3. Thus appellants together are entitled to 50% share in suit C schedule properties. Again considering the relation between the parties and despite the trial court awarding 1/2 share in the suit C schedule properties, the appellants have expressed their willingness to restrict their share in suit C schedule properties to 1/3rd share as against 1/2 share awarded by the trial court.

In terms of the above, the appellants and respondents have effected the division of the suit C schedule properties as shown in the sketch appended in the compromise petition and any excess or shortage in area of suit C schedule properties consequent to physical measurement will be shared proportionately between appellants and respondents 1 to 4.

1/3rd share of appellants in suit C schedule properties is described as plot No. 1 in the sketch appended to the compromise petition. 1/3rd share of respondents No. 1 to 3 in suit C schedule properties is described as plot No. 2 in the sketch appended to the compromise petition. 1/3rd share of respondent No. 4 in suit C schedule properties is described as plot No. 3 in the sketch appended to the compromise petition. Each plot is measuring 3 acres- 15 gunthas. The boundaries of the each plot is described in the sketch itself.

Appellants and respondents acknowledge and admit that appellants are the exclusive owners in possession of plot No. 1 described in the sketch. Property allotted to share of appellants is free from any kind of encumbrance.

Appellants and respondents acknowledge and admit that respondents No. 1 to 3 are the exclusive owners in possession of plot No. 2 described in the sketch.

Appellants and respondents acknowledge and admit that respondent No. 4 is the exclusive owner in possession of plot No. 3 described in the sketch.

It is further agreed between the parties that if any kind of 3rd party liability by way of mortgage, charge, tax, penalty or arrears of revenue created in respect of suit C schedule properties, same shall be discharged by respondents 1 to 4 and appellants shall not be liable to discharge the same. The respondents 1 to 4 further admit and declare that the property allotted to their share shall carry charge in respect of any third party liability including the disputed claim of respondents 10 to 12 if said claim is established in a competent court of law.

It is further agreed that respondents No. 1 to 4 have put up structure in part of plot No. 1 allotted to appellants. Respondents 1 to 4 shall remove all the structures and movables pertaining to their business in the name and style M/s. Ambana Cement Products or any other name for that matter, within 90 days from this date and shall handover actual vacant possession of said portion of suit C schedule property in favour of appellants. Accordingly respondents No. 1 to 4 give solemn undertaking to this Hon''ble Court to remove all structure and fixtures in plot No. 1, within 90 days from this date and to hand over the said portion of plot No. 1 to appellants.

In the event of failure to remove said structure within 90 days from this date, entire structure in the said plot No. 1 of C schedule property vest absolutely with appellants and respondents No. 1 to 4 shall have no claim over it.

It is also agreed between the appellants and respondents No. 1 to 4 that appellants will have no share in the company run under the name TT Tourism (P) Ltd., Gokul electronic weigh bridge, Gokul sweets and fast food.

The appellants and respondents No. 1 to 9 admit that they are absolute owners to enjoy the properties allotted to their respective share as referred above and described in the schedule, without any hindrance whatsoever from anybody.

The parties are entitled to have their name entered in the property records to the extent of their respective shares as mentioned above.

It is agreed among the appellants and respondents 1 to 4 that appellants will have no share out of late Ambubai''s share as per gift deed dated 6-1-2011. It is also agreed that 1/5th share of late Ambubai is with respondents No. 1 to 4. It is also agreed between appellants and respondents 1 to 4 that the 1/3rd share acquired by appellants No. 1 and 2 in the form of plot No. 1 in suit C schedule properties is part of the 2/5th share acquired by them on the death of their father, in terms of S. 8 of Hindu Succession Act 1956 and it is also agreed among the appellants and respondents No. 1 to 4 that appellants will have no share in any of the compensation amount awarded in respect of the property which has been acquired by the government in the past.

Schedule

The description of the properties jointly allotted to the share of appellants

Immovable Properties bearing CTS No. 4784/A1, measuring 13657.95 Sq. meters [3 Acres 15 Guntas]. The land described above is bounded as under:

This property is described as plot No. 1 in the sketch appended to the compromise petition and sketch shall be treated as part of this petition and decree.

The description of the properties allotted jointly to the share of respondents No. 1 to 3

Immovable Property bearing CTS No. 4784/A1, measuring 13657.95 Sq. meters [3 Acres 15 Guntas]. The land described above is bounded as under:

This property is described as plot No. 2 in the sketch appended to the compromise petition and sketch shall be treated as part of this petition and decree.

The description of the properties allotted to the share of respondent No. 4

Immovable Property bearing CTS No. 4784/A1 and CTS No. 4805, measuring 13657.95 Sq. meters [3 Acres 15 Guntas]. The land described above is bounded as under:

This property is described as plot No. 3 in the sketch appended to the compromise petition and sketch shall be treated as part of this petition and decree.

The description of the properties jointly allotted to the share of respondents 1 to 4

B schedule Properties situated in Krishnapur village Tq: Hubballi

And the buildings standing there on.

For removal of doubt it is clarified that in the above said B schedule properties respondents 1 to 3 together shall have 1/2 share and respondent No. 4 shall have 1/2 share.

The description of the properties jointly allotted to the share of respondents 5 to 9

A schedule properties

Immovable Properties bearing CTS No. 1300/C-2, measuring 201 Sq. yards and CTS No. 1298, measuring 220 sq. yards respectively, situated adjacent to each other, situated at CTS Ward No. III, Moorusavirmath Road, Harapanhalli Oni, Hubli. The lands described above together are bounded as under:

"Towards East : CTS No. 1299 & 1300/C-1.

Towards West : CTS No. 1297/2,

Towards North : Road

Towards South : CTS No. 1301/A."

The parties have agreed to bear respective cost of the litigation.

The parties to this compromise petition pray for final decree in terms referred above.

Above contents are read over and explained to us and we affirm them to be true and correct."

Having heard the learned counsel for the parties, we are of the view that the compromise petition entered into between the parties is lawful and reasonable. Therefore, the judgment and decree of the Court below is modified in terms of the compromise petition. It is hereby clarified that this decree is not binding on respondent Nos. 9 to 12.

The appeal stands disposed of accordingly. Draw the decree in the aforesaid terms. No costs.