IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE I DAY OF DECEMBER 2010
BEFORE
THE HONBLE MRJUSTICE SUBHASH V
REGULAR FIRST APPEAL N0.2559/2E(§'06:Aa.R.: '7 .
BETWEEN:
Sri.N.R.Balakrishr1a
Aged about 66 years
S/ o Late N.M.Ramaswamy
Residing at No.6-383, 2"" Cross
1%" Main Road, BEML Layout
5111 Phase, 2"' Stage, A
Rajarajeshwarinagar, _a _ " ,
Bangalorew 560 * __ APPELLANT
[By Sri.R. Nataraj } A
AND
1 . Sri. ' N.R.Sh'ivVak1jmar.__ "
Aged 'abpu,t 56 year':-,
AS/0 Late N.MV..Rarr1as\3vamy
.. «ER/a"~No.532,~--.32"d Cross,
- 11E_"'v.MaiI'l, 43" BRIOCK, J ayanagar
V .. _ Ba11galo1"e,w 560 011.
2.. A" --._VSri'.'NI_i2,_Rar1oachanra
' Aged. ab-{nut 64 years
4"' S / o late. N .M.Ran'1aswamy
R/a°No.6/6, 15* Floor,
A n 41?*"Cross, 7"' Block west.
_ "Jayanagar
' ' "Bangalore ~w 560 082.
A " Sri. N. R.Venkaiesh
Aged about 62 years
S / 0 Late N.M.Ramaswamy
M)
R/at No.4. Nirvana Apartment,
No.l42, ET] Colony, Kathriguppe
BaI1galore-- 82.
4. Sri.N.R.Anand
Aged about 60 years
S / 0 Late. N.M.Ramaswar11y
R/a No.446/2, 6'?! Cross.
7"' Block, Jayanagar
Bangalore --- 560 082.
5. Sri.Prakash ._
Aged about 54 years I
S/o Late N.M.Ramaswar:1y
R/at N0.304, Ka1'1akapura.R0ad.l'
7*" Block, Jayanagar, 'C "
Bangalore -- 560 082.
6. Sn'.N.R.Jaishanka,1""
Aged about 52 years. _ _ 3
S/o Late. N.M.Rarnaswam_\f»"'
R/a No.41, 1.5' A--Cr,r3-ss.. V *
HanumaI1ih'a_11a.gar; _
Bangalorefi 0.1 9.. 1
7. Sm.t.C.howdart1r;1a
Aged a'bout'81year's~ "
W/ 0 Later. N. M .RamaSVv*amy
R/at No":304,. R;ana_ka}5ura Road
_f7l?i Block, "J-ayaztagaz',
i3a33.galore we 566982. .. RESPONDENTS
'(By slims»jfe}i};g1t;1kr:shna, Adv. for R-1
Sri. 1\1.,'J.P*or§'na.(:~h'2i, Adv. for R-2, R5 & R7
Sri.'S.l\lagva,raj;-.V_Ad\r. for R-4; R3 served}
3 so ; 'E'his Regular First Appeal is filed 11fl(l€f' Section 96 of CPC
"against. the judgment and decree dt..6.7.2006 passed in
s.OS.N0;'494O/2000 on the file of the VIII Addl. City Civil Judge,
___""Banga1ore City [CCI"I~15] deereeing the suit for permanent
C * inj--ur1ct.ion.
This Appeal coming on for orders this day. the Court
delivered following:
J U D G M E N T
This is an appeal by the first defendant against the
judgmeitt and decree in O.S.No.4940/ 2000 dated 69*
on the file of VIII Addl.City Civil Judge, Bangalore_.uCity;ll’. ‘
2. Parties would be referred tojasl per &_ti1peir«ranfking’-in
trial court.
3. First respondent is the p._l:ai~2:itif’1″. fiie a ‘decree’
of permanent injunction restrainiiigfl-.the defendants from
interfering with the peaceful;possesvsiolnland enjoyment of the
suit schedule property by:’hli’n1′.fl
4~.l’.Case that, plaintiff and defendant
Nos} to 6 “are of_.’etone N.M.Ramaswamy. Defendant
No.7 widoweof N,1\/1′,Ra:na.swamyx N.M.Ran1aswarny
h_ilS:l.lif:§’Al.g-jme had acquired the suit schedule property.
V'(ie’f_ai_sel,i’plaintiff and defendants have succeeded to his
V if _ estateas !,_egal:heirs. The plaintiff and defendants have got equal
share. Fi’rst defendant on the ilbadviee of certain persons, who
a.arell”–in’in1ical1y disposed against the plaintiff and other
ljltdefendetnts filed a suit in O.S.No.5-425/1996 seeking partition
” and separate possession of various items of the properties left
behind by their father N.M.Ra1naswaniy, however, on the
intervention of we11~wishers and the friends, defendant No.1 was
convinced and accordingly, he withdrew the suit by filing an
application under Section 151 of CPC dated ll.2.19E3:jf’alyyl1e1*ein
the
he stated that t.he matter is amicably settled§:”~–Qiftelifi
withdrawal of the suit, plaintiff and defendantsyyorfallypartéitionedppV
the properties left behind by if
possession of their respective share. l9:97,:’plaint;iff”
defendants reduced the terms of””t’he.oral pa.rtition family
settlement and they also”~confirrnedVt.:ltt1le’c-oral partition entered
into amongst thernselvesl have taken
possession of respective shareggi: The..’Va:cant’site bearing No.532,
32″” Block, Bangalore belongs
to their father Vlate”l$t;M.P.ainaswamy. He had permitted the
plaintiff to put tip’ residential construction and plaintiff had
‘l”p_ot tipl’:*co-ns’t1fuction:’to'”the knowledge of the other defendants.
.l’–Pplainti’ffAh’adtivncitmjed cost of ?’ 7200.000/~. Thus, in View of the
SElI”l'”1~€’,”t1I’1(ZlEtI”‘i;,[fiE;:’tCI’1’I1S of the family settlement, option was given
. to the ‘plaintiff to retain that property by paying the value of the
“s.hare1’s. PlaiI1tiff has discharged the payment in terms of
._,f.’thAe’§settlen1ent to each of the defendants. Despite the same,
“‘._defe11ctant,s are trying to interfere with the possession. He also
1
alleged that, he has been paying property tax and is In exclusive
possession of the suit schedule property.
5. Said suit was contested by the first. defendant. who filed
written statement mteraita adrnitting that he had filedfearlier
suit and he had withdrawn the sanie. He also _a”d’niift’te_d’filial,
there is a family settlement on 26.5.1997, hoiweyerl ._den1′”e-do
the confirmation of the oral pa1’ti’-;:i01’1.b_:ylylE,le:_denied, ‘
plaintiff was permitted to construct a r’esid~ential.huildingl’on’iihe -‘
suit schedule property. He alsodeiiied that_ has spent
? 100,000/-. Since the faniily’.’settlernen’t._ is nolgwen effect to,
all the Inenibers of the family’ in’Vc:ll1din.g_ffVthfe~defendant No.1 are
deemed to be schedule property.
Plaintifflv’ean*not.ollaifn ownership over the said property
unless the settlernlentlldeedldated 26.5.1997 is fully given effect
to and_§:ftillrr.all the parties perform their part of obligation under
thel.settle’rnent;«–._He admitted that. each of the defendants were
eiititledf V’tolll”_g;§vetll.f§’v”.2,14,300/– towards their share. However,
V V’ _ defendant”No.:l is entitled to entire sum ol” 3′ l5,00,000/– as per
tflause the l\/lemorandurn of Family Settlement. He also
that, plaintiffmay be in possession of the suit schedule
propeity with his family from 1991 and may be paying the tax,
“lhoweve1′, contended that, till the terms of the settlernent are
wfim
given effect to, plaintiff cannot claim exclusive title or restrain
the defendants from eiijoying the suit property. Further stated
that. he is entitled for ? 3150.000/– as his share in the family
properties. The fomlula. for payment of this amount also
contained in the settlement. As per Clause 6 of
share of the defeiidant was estimated at ? alaiid’
liability to be borne by this d€f€I}daI1f.; Plaiiitiff T. V
as well as defendant Nos.2 to 7 h4aye”.agreed_jto’vtend.’ei=.fthe
aforesaid sum of 3 31,50,000/– priority basis lolnlsale
alienation or disposal of the propel .llit”waslthe duty of
the plaintiff and defendant.’ -comply with the
settlement in itsytrue V’ Plaintiff has not even
T botheredllltol 3 ? 2′.–.l.ll¥il,3O0/M, let alone paying ?
31,50,0ot:;/§.<- V
.6. Defei1éfE11«"..'L.h.'–No_s.l.'2',: 3, 5 and 7 also filed written
_ Ialowex/'ler;""defendant Nos.4 and 6 seriously contested
Tst1it."'–v.y_l'he'yy:Vc1–enied the settlement and denied right of the
plairitifl'. _l p i " l
7;' the basis of the above pieadirlgs, the trial court
four issues as under: r
suit schedule property. He relied on EXPI M settlement deed
and submitted that, under settlement. deed, defendant No.1 is
entitled for ? 31,50,000/» towards his share and as long as that
amount: is not paid, it cannot" be treated as settleznentas'given
effect to and as long as settlement is not given
of granting injunction in favour of plaintiff lbiligl
also relied on the evidence of PW-1 '
not been paid and in View otfthe as jag
existence of status of joint farniigtg'»i.ntention'to: other
members is not maintainable. aldeeision of the
Apex Court reported in in the matter of
SAKHAHARI Pam/A.rRziio €Ki'qRlq;H£a¥a'E. ANOTHER mus-
BHIMASVH2tit.tKAR, KARALHE. He also reiied on
another jludgrnent of :_tl1_e"Ape«x*'C0urt reported in 2004(4) KCCR
2145 in _ the lr'I1attew:'_ of i"~:.G:'sHIvALINGAPPA (DECEASED) BY LRS
" ~/iNi:)~.mps- d.s;i«:sWARAPPA AND OTHERS and submitted
..4'th_e"'.set,tlement deed is reduced in writing and
registered,' piteiliyvilll not carry any evidentiaiy value. On these
"«,__."'.'€§t1bmiSSi(ltgS, he sought for setting aside the judgment of the
trial eotirt-
10. in the light of the above contention, the point that
I
‘”,arises for consideration is as under:
-9-
Whether the plairtitffhas made out at casefor grant” of
decree ofpermanent in_jtl.nctton?
1 1. There is no dispute that the plaintiff and defendant
Nos} to 6 are the children of defendant No.7. It is alsonot in
dispute that, the suit schedule property and other are
acquired by late N.M.Ran1aswarny, husband defendant
First defendant has not denied he -:l’ile:Cl’-_a_ls’uit “in if
O.S.No.5425/1996 for partition andllselparate .p_oslses’siloi:l{_~.._l’He
has also not denied that th6l”‘=§’aid suit .W’aS:.’.=\trifl1ldrawl’l
amicably settled. He has nott”‘denied'<_t.hat thee plaintiff and
defendant Nos.1 to 7 ent_ered…l5into__:lfisettlement deed on
26.5.1997. In_ _ple.fitdillg_;'V:l:heA'*~ad.mit.s";«t'hat, plaintiff is in
possession of in 1991, though he has denied
the collstruetiotn lal.1eged been made by the plaintiff and
amount 'spent lby Athelplaitltifl". Defendants claim that, as long as
of17settlerne'l1tindeed are fully given effect to, it cannot
lpartalte' thei.ehara.eter of severance of status of joint family and
as long ~thatAlis not done, plaintifl' is not entitled for grant of
~ decree ofi__njunetio1l. "
It is pertinent to note that, defendant No.1, plaintiff
if other defendants have not disputed the settlemeilt. lt is also
«shot in dispute that, the parties have reduced into writing the
E
J
~l()~
deed called settlement of properties and all of them have signed
the deed. Clause 2 of the deed gives an option to the plaintiff to
{retain the suit schedule property subject to paying to market
value as stated therein. Allegation of the defendant Nvojilisypthat,
the amount due from the plairtt.it’f is not paid
totally due under the settlement deed is also I.
13. Insofar as suit property is=.,1conc.er:neel,.ld,efendant
is liable to pay ? 22,14,300/~ to defendant’ .l\los.e2,l’ and
and other defendants have to – defendant
No.1. No doubt, if the’t.er’ms -of “S_§3€,itlf’err1ent require certain
payments are to be tei’1ns~:l._’9f.l~~mat, parties are
required to corf1plf,j.,.,=withl–.their re’spe’etive.sobligations, however,
this is not a ‘s1,1itV’forAAdeclaration’ of title and also not a suit for
artition, ‘lair”it.iff only ‘sou ht for decree of errnanent
P P _ , y 3 P
_ injurmftiorit. It dispute that, the plaintiff is also a heir of
There is no dispute that the defendant No.1
but did not choose to enter the
_ witness h’ojt,.lA«:however, has cross–e:-tarnined the plaintiff. When
‘ paltieslhave admitted that the plaintiff is in possession, even
that the terms of the settlernertt are not given effect to,
does not confer any right on t.he defendaI3.t.s to interfere with
~ the possession, which is otzherwise lawful, they may be entitled
£3
wt
for relief in terms of the seit.lement. but as the defendants
having adxnitted that the plaintiff is in possession and his
possession is Lmlawi’ul_ I find that the trial court only on
appreciation of these material evidence has found the
plaintiff is in possession, the said finding is
evidence. There is no reason to interfere with ‘tiie.udgn1ei1i. and
decree of the trial Court.
14. It is also submitted,__by thel”learne’ti’xACoun_selll for;
defendant No.1 that. the suitlllis_lll’pending- partition and
separate possession. If is so, always open to the parties
to work out all other reprnedielsl iari-s~ing’l{_’between them and
granting of dec;”ee”«Tol.”pefmainent will not in any way
prejudice “ll find that the judgment and
decree of tleieltrial and proper and does not call for
interfe§reli1C.e. I pass the following”:
i ll 1 ll 0 R D E R
._ éip.pea:l’*fails and same is dismissed.