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2023 DIGILAW 391 (KAR)

Savitiri v. Kallappa Sangappa Kurubar

2023-03-07

ANANT RAMANATH HEGDE

body2023
JUDGMENT/ORDER 1. Heard Sri. Sagar Hegde for Sri. S.R. Hegde, learned counsel appearing for the appellants. 2. The plaintiffs in O.S. No.5/2017 on the file of the Senior Civil Judge & JMFC, Kalaghatagi (for short, the 'Trial Court'), are before this Court impugning the judgment and decree dtd. 30/1/2019 passed in the said suit. The suit filed before the Trial Court was one for declaration and injunction. The declaration sought was to the effect that the compromise decree, dtd. 26/7/2014, passed in O.S. No.247/2013 by the Senior Civil Judge, Kalaghatagi, was null and void and also for a further declaration to the effect that the revenue proceedings initiated pursuant to the registered sale deed dtd. 9/12/2016, in respect of Sy.No.76 and Sy.No.331, were not binding on the plaintiffs, and the consequential relief of injunction was also sought. 3. The brief facts of the case can be summarized as under: (a) One Doddakallappa, son of Gadigeppa Kurabar, purchased three properties bearing Sy.Nos.76, 67 and 331 of Tumarikoppa Village of Kalaghatagi Taluk. The properties are purchased under a registered sale deed dtd. 26/7/1954. Doddakallappa died and survived by his two sons viz., Halappa and Sangappa. It is stated that Doddakallappa had executed a registered 'Will' in favour of his two sons - Halappa and Sangappa. The said 'Will' is said to be dtd. 5/9/1974. Under the said 'Will', Halappa and Sangappa acquired joint right, title and interest over the properties. (b) The suit in O.S. No.247/2013 was filed by one Basappa, the uncle of Halappa and Sangappa, for partition and separate possession. In the said suit, Halappa and the legal representatives of Sangappa were made parties. Apart from the properties referred to above which are subject matter of this suit, certain other properties were also subject matter of the above suit. The said suit [O.S. No.247/2013] was settled in terms of the compromise. In terms of the said compromise, properties referred to above viz., Sy.Nos.76, 67 and 331 are allotted to the share of Ningappa, who was defendant No.1 in the said suit. As already noticed, Ningappa is uncle of Halappa and Sangappa. Subsequently, the properties bearing Sy.No.76 and 67 are sold in favour of a third party, in the year 2016. The compromise took place on 9/7/2017. The compromise decree was passed on 26/7/2016. As already noticed, Ningappa is uncle of Halappa and Sangappa. Subsequently, the properties bearing Sy.No.76 and 67 are sold in favour of a third party, in the year 2016. The compromise took place on 9/7/2017. The compromise decree was passed on 26/7/2016. (c) The wife and children of Halappa filed the present suit i.e., O.S. No.5/2017 challenging the compromise decree passed in O.S. No.247/2013 and also the sale deed of the year 2016 referred to above. The Trial Court has dismissed the said suit. Aggrieved by the dismissal of the suit, the wife and the children of Halappa are in appeal before this Court. 4. The learned counsel appearing for the appellants would submit that the judgment and decree impugned in this appeal are erroneous. The valid contentions raised by the plaintiffs are not properly appreciated by the Trial Court. The element of fraud which is pleaded and established is not considered in a proper perspective and as such, he would urge that notice has to be issued and appeal requires to be admitted to consider the contentions raised by the plaintiffs. 5. It is also submitted that there cannot be any partition in respect of the properties bearing Sy.Nos.76 and 331 referred to above, as the said properties were purchased by Doddakallappa and they are not the joint family properties. He would also submit that since a 'Will' was executed by Doddakallappa in favour of his two sons Halappa and Sangappa, the properties covered under the 'Will' would become the self acquired properties of Halappa and Siddappa, and there cannot be a decree for partition and as such, the compromise is contrary to the law. 6. This Court has considered the contentions raised at the Bar, and also perused the record and the impugned judgment and decree. 7. It is to be noticed that the plaintiffs are not parties to the compromise decree. The question, therefore, would be whether they are necessary parties to the compromise decree. 8. Admittedly, the properties were purchased by Doddakallappa, the father of Halappa and Sangappa. The plaintiffs claim through Halappa and said Halappa is alive. This being the position, after the demise of Doddakallappa, the properties would devolve upon Halappa and Siddappa and in the said properties, plaintiffs do not acquire any right. Under the circumstances, the plaintiffs are not necessary parties to O.S. No.247/2013. The plaintiffs claim through Halappa and said Halappa is alive. This being the position, after the demise of Doddakallappa, the properties would devolve upon Halappa and Siddappa and in the said properties, plaintiffs do not acquire any right. Under the circumstances, the plaintiffs are not necessary parties to O.S. No.247/2013. Thus, they also cannot question the validity of the judgment and decree in O.S. No.247/2013. 9. The husband of plaintiff No.1 and the father of plaintiff Nos.2 to 6 i.e., Halappa was a party to the above said suit i.e., O.S. No.247/2013. The right to question the compromise decree referred to above is available only to the party to the said proceedings and the persons having right over the properties involved in the said compromise decree and that too in a manner known to law. Halappa has not chosen to question the said compromise decree. Under the circumstances, the Trial Court is justified in dismissing the suit. It is also required to be noticed that the plaintiffs themselves have asserted that Doddakallappa has executed a 'Will' in respect of the two properties in favour of his two sons Halappa and Sangappa. If that is the case, again the plaintiffs do not acquire any right, title or interest over the suit properties as long as Halappa is alive. For this reason also, the suit of the plaintiff is not maintainable. This Court does not find any reason to entertain this appeal and the appeal is accordingly dismissed.