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2020 DIGILAW 1226 (KAR)

Veena v. C. M. Mamatha

2020-06-25

JYOTI MULIMANI

body2020
JUDGMENT Jyoti Mulimani, J. - Petitioner has filed the present Writ Petition invoking the writ jurisdiction of this Court assailing the order dated 11.09.2018 passed by the Principal Senior Civil Judge, Hassan on I.A.No.11 in O.S.No.205/2015. A copy whereof is at Annexure-'E', whereby the trial Court has rejected the application filed under Order XXIII Rule 3 of Code of Civil Procedure, 1908 (CPC) filed by defendant Nos.3 to 5 separately in I.A.No.11. 2. Petitioners are defendant Nos.3 to 5 and respondent No.1 is plaintiff before the trial Court. It is averred that defendant Nos.2 to 5 and plaintiff are the children of defendant No.1. Defendant No.6 is the purchaser of suit Item No.7 i.e., land bearing Sy.No.123/1, measuring to an extent of 0-28 guntas situated at Chittanahalli and Doddapura Village, Kasaba Hobli, Hassan Taluk and District. Plaintiff has filed the suit for partition and separate possession claiming 1/6th share in the suit schedule properties and for mesne profits. The suit is also one for declaration to declare that she has got 1/6th share in respect of the suit schedule properties and the sale deed executed in favour of the 6th defendant is not binding upon the right, share of plaintiff. After service of notice, defendants entered appearance and they have filed the written statement. During the pendency of the suit proceedings, defendant Nos.1 to 5 alleged to have amicably settled the matter among themselves. They have filed separate applications under Order XXIII Rule 3 of Code of Civil Procedure, 1908 (CPC), contending that they have compromised the matter thereby, requesting the Court to record the compromise. Plaintiff filed objections and opposed the application. The trial Court has rejected to record the compromise petition on 11.09.2018. Hence, defendant Nos.3 to 5 are before this Court. 3. Sri.Manu Kumar B.T., learned counsel appearing for petitioners has appeared in person. He contended that the order passed by the trial Court is contrary to law, facts and probabilities of the case. The trial Court has erred in not appreciating the averments made in the application as well as in the written statements. He further submitted that the trial Court has failed to observe that, when defendant Nos.1 to 5 have agreed to settle the matter among themselves, the trial Court ought to have recorded the compromise petition. The trial Court has erred in not appreciating the averments made in the application as well as in the written statements. He further submitted that the trial Court has failed to observe that, when defendant Nos.1 to 5 have agreed to settle the matter among themselves, the trial Court ought to have recorded the compromise petition. Lastly, he contended that viewed from any angle, the observations made by the trial Court is contrary to the law, facts and probabilities of the case. Accordingly, learned counsel has sought to quash the impugned order passed by the trial Court. 4. I have heard Sri.Manukumar B.T., learned counsel appearing on behalf of Sri.M.N.Madhusudhan, learned counsel for petitioners and perused the order of the trial Court and writ papers. 5. The challenge in this writ petition is with regard to rejection of recording of compromise petition filed under Order XXIII Rule 3 of CPC. Plaintiff has filed the suit seeking partition and separate possession of 1/6th share in the suit schedule properties. She has also sought for declaration that she is entitled for 1/6th share in the suit schedule property. It is averred in the plaint that defendant No.1 is her father, defendant No.2 is her brother, defendant Nos.3 to 5 are her sisters and defendant No.6 is the purchaser of Item No.7 in suit 'A' schedule properties. It is stated that the suit schedule properties are ancestral joint family properties and she is having 1/6th share in the suit schedule properties. When she demanded for partition of the properties, defendants refused for partition and allotment of her share in the suit schedule properties. Therefore, she was constrained to approach the Court seeking for the relief of partition, separate possession and declaration. 6. It is noticed that during the pendency of the suit proceedings, defendant Nos.1, 2 and 3 have jointly filed compromise petition under Order XXIII Rule 3 of the CPC. It is stated in the compromise petition that they have resolved their dispute at the advice of elders and well-wishers. 7. The compromise petition was filed by defendant Nos.1, 2 and 3. Defendant No.3 has admitted that the suit schedule properties are the absolute properties of defendant No.1 alone and they are not joint family properties. She has further admitted that she has no right, title and interest or share or possession of whatsoever nature in the suit schedule properties. 7. The compromise petition was filed by defendant Nos.1, 2 and 3. Defendant No.3 has admitted that the suit schedule properties are the absolute properties of defendant No.1 alone and they are not joint family properties. She has further admitted that she has no right, title and interest or share or possession of whatsoever nature in the suit schedule properties. It is further stated that if the Court comes to the conclusion that defendant No.3 has any share in the properties, it is to be construed as she has relinquished her share, right title and interest in favour of her brother - defendant No.2. It is stated that, in view of the above assertions, the claim of defendant No.3 is to be waived off in favour of her brother - defendant No.2. Thus, she has withdrawn her claim of partition and separate possession to the extent of her share in respect of the suit schedule properties. 8. Similarly, the compromise petition was filed by defendant Nos.1, 2 and 4. Defendant No.4 has admitted that the suit schedule properties are the absolute properties of defendant No.1 alone and they are not joint family properties. She has further admitted that she has no right, title and interest or share or possession of whatsoever nature in the suit schedule properties. It is further stated that if the Court comes to the conclusion that defendant No.4 has any share in the properties, it is to be construed as she has relinquished her share, right title and interest in favour of her brother - defendant No.2. It is stated that, in view of the above assertions, the claim of defendant No.4 is to be waived off in favour of her brother - defendant No.2. Thus, she has withdrawn her claim of partition and separate possession to the extent of her share in respect of the suit schedule properties. 9. Likewise, a compromise petition was filed by defendant Nos.1, 2 and 5. Defendant No.5 has admitted that the suit schedule properties are the absolute properties of defendant No.1 alone and they are not joint family properties. She has further admitted that she has no right, title and interest or share or possession of whatsoever nature in the suit schedule properties. Likewise, a compromise petition was filed by defendant Nos.1, 2 and 5. Defendant No.5 has admitted that the suit schedule properties are the absolute properties of defendant No.1 alone and they are not joint family properties. She has further admitted that she has no right, title and interest or share or possession of whatsoever nature in the suit schedule properties. It is further stated that if the Court comes to the conclusion that defendant No.5 has any share in the properties, it is to be construed as she has relinquished her share, right title and interest in favour of her brother - defendant No.2. It is stated that, in view of the above assertions, the claim of defendant No.5 is to be waived off in favour of her brother - defendant No.2. Thus, she has withdrawn her claim of partition and separate possession to the extent of her share in respect of the suit schedule properties. Therefore, defendant Nos. 1 to 5 prayed for recording of the compromise petition. Plaintiff has filed her objections to the said compromise petition. 10. The controversy in this writ petition relates to the recording of the comprise petition. Order XXXIII Rule 3 of CPC deals with compromise of suit. The Rule gives a mandate to the Court to record a lawful adjustment or compromise and pass a decree in terms of such compromise or adjustment. The conditions which normally must be satisfied for validity of invoking the provisions of Order XXIII Rule 3 of CPC are:- "1. There should be a lawful agreement or compromise; 2. The compromise has to be in writing and signed by the parties; 3. The compromise must be recorded by the court; 4. A decree on such compromise can be passed so far it relates to the parties to the suit but may extend to a special matter which is not the subject matter of the suit". The scheme of Order XXIII Rule 3 of CPC, is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and is a voluntary act on the part of the parties. 11. Hence, a bare perusal of the provision makes it abundant clear that the compromise must be lawful, it must relate to the parties to the suit. 11. Hence, a bare perusal of the provision makes it abundant clear that the compromise must be lawful, it must relate to the parties to the suit. But what is relevant to notice here is that the plaintiff being dominus litus has initiated action contending that the suit schedule properties are joint family properties. She has denied the alleged compromise petition. The copies of the compromise petition are at Annexures-'C' 'C1' and 'C2'. 12. I have carefully perused the compromise petitions. Strangely, defendant Nos.1 to 5 have settled their disputes among themselves. The compromise petitions are inter se between defendant Nos.1 to 5. In the said compromise petition, they have declared themselves that the suit schedule properties are absolute properties of defendant No.1. Therefore, it is seen that by virtue of the said declaration in the compromise petition, the defendant Nos.1 to 5 have totally changed the nature of the properties. It is relevant to notice that there is no consent of plaintiff for the same. Plaintiff has totally denied the alleged compromise petition by filing objections. 13. But in the instant case, the action is initiated by plaintiff claiming her share in the suit schedule properties. By virtue of the compromise petitions, defendant Nos.1 to 5 have declared themselves that the suit schedule properties are absolute properties of defendant No.1 and defendant No.3 to 5 alleged to have relinquished their share in favour of defendant No.2. But plaintiff has not consented for the same and she is not a signatory to the compromise petition. The requirement that the compromise must be in writing and signed by the parties is mandatory and cannot be dispensed with. Therefore, recording of compromise between some of the parties to the suit is not a proper compromise. If the compromise is not signed by all the parties, the compromise cannot be recorded validly under Order XXIII Rule 3 of CPC. 14. It is needless to say that as a general rule, any matter which can be decided by a Court can also be settled by a compromise. But the Court is not obliged to pass a decree as soon as the compromise is recorded. It is the duty of the Court to satisfy itself the legality of the agreement, compromise or settlement in question. Therefore, in my considered opinion, the trial Court is justified in rejecting the application. But the Court is not obliged to pass a decree as soon as the compromise is recorded. It is the duty of the Court to satisfy itself the legality of the agreement, compromise or settlement in question. Therefore, in my considered opinion, the trial Court is justified in rejecting the application. Hence, I find no reasons to exercise power under Article 227 of the Constitution of India. Accordingly, Writ Petition is dismissed.