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NC: 2024:KHC-D:6906 RFA No. 100154 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF APRIL, 2024 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100154 OF 2015 (PAR/POS) BETWEEN:
ABHISHEK S/O. VENKAREDDY MELAGIRI, AGE : 22 YEARS, OCC: STUDENT, R/O. RAJATGIRI, DHARWAD, DISTRICT: DHARWARD – 580004.
SMT. SRIDEVI W/O. VENKAREDDY MELAGIRI, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O. RAJATGIRI, DHARWAD DIST: DHARWAD – 580004. …APPELLANTS (BY SRI RAVI S. BALIKAI, ADVOCATE)
AND:
CHOURADDY S/O. BHEEMRADDY MELAGIRI, AGE: 77 YEARS, OCC: AGRICULTURE, R/O. KARLAWAD, TQ: NAVALGUND, DIST: DHARWAD – 582208. (SINCE DEAD, BY HIS L.RS. R.2 TO R.4.)
LINGAREDDY @ NINGARADDY S/O. CHOURADDY MELAGIRI, AGE: 61 YEARS, OCC: HOUSEHOLD, R/O. KARLAWAD, TQ: NAVALGUND, DIST: DHARWAD – 582208.
SMT. LEELA @ SHUBHALAXMI W/O. VISHWANATH NAYAK, AGE: 47 YEARS, OCC: HOUSEJHOLD, R/O. C/O. VISHWANATH NAYAK, MEDICAL REPRESNTATIVE, VIDYANAGAR, NEAR CHETANA COLLEGE, HUBBALLI, DIST: DHARWAD – 582208.
R Digitally signed by SUJATA SUBHASH PAMMAR Location: HIGH COURT OF KARNATAKA
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SMT.LALITAVVA W/O. CHOURADDY MELAGIR, AGE: 72 YEARS, OCC: AGRICULTURE, R/O: KARLAWAD, TQ: NAVALGUND, DIST: DHARWAD – 582208.
…RESPONDENTS (BY R2 TO R4 ARE LR’S OF DECEASED R1; SRI ARAVIND B. KULKARNI, ADVOCATE FOR R2; SRI SRINIVAS B. NAIK, ADVOCATE FOR R3; R4 – NOTICE SERVED.)
THIS REGULAR FIRST APPEAL IS FILED UNDER SETION 96 READ WITH ORDER 41 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE DATED 04.03.2015, PASSED IN O.S.NO.227/2012, ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION AND FOR DECLARATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 15.03.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is filed by the plaintiffs challenging the judgment and decree dated 04.03.2015 passed in O.S.No.227/2012 by the Court of II Additional Senior Civil Judge, Hubballi, thereby dismissing the suit filed for partition and separate possession and for declaration.
For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court.
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Brief facts of the case are as follows:
Plaintiffs case:-
(i) The defendant No.2 and father of plaintiff No.1 and husband of plaintiff No.2 namely Venkareddy are sons of defendant Nos.1 and 4. The defendant No.3 is the daughter of defendant Nos.1 and 4. The plaintiffs and the defendants are joint family members. Some of the suit properties are ancestral properties and some of the properties were purchased out of income derived from the ancestral properties. Therefore, those properties are also joint family properties. There is no partition in the family. Hence, all are in joint possession of the suit properties as on the date of filing of the suit.
(ii) It is further case of the plaintiffs that deceased Venkareddy was an Engineer and Civil Contractor and earned money out of his income and purchased house property and one plot situated at Dharwad and a commercial complex at Maruthi Complex, Line Bazaar, Dharwad. These properties are self acquired properties of
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Venkareddy. The defendant Nos.2 and 3 purchased some properties out of income derived from the joint family properties.
(iii) It is further claim of the plaintiffs that the said Venkareddy was suffering from Tuberculosis disease from the year 2002 and took treatment at Dharwad and at Ghataprabha and other hospitals. The said venkareddy was admitted as inpatient in Dr.S.R.Ramanagoudar Nursing Home on 16.09.2003 and thereafter, he was admitted as an inpatient in J.G.Cooperative Hospital on 09.10.2003 at Ghataprabha and on 09.02.2005 he got admitted as inpatient in Dharmasthala Manjuantheshwara College and Hospital. On 30.06.2005 he got admitted in Dr.Hebbar Hospital and on 13.09.2005 he was admitted as inpatient in KIMS Hospital, Hubballi. When this being the fact, he was an inpatient in Dr.S.R.Ramanagoudar Nursing Home on 26.09.2003 the defendant Nos.2 and 3 took him to their house without intimating the same to the hospital
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and the hospital authorities have lodged the complaint before the police that Venkareddy was missing.
(iv) It is further case that the defendants have taken above said Venkareddy from the hospital without intimating to the hospital and admitted at Hospital Ghataprabha and in the meantime, the defendant No.3 filed O.S.No.66/2003 in the Court of Civil Judge, Jr. Dn., Navalagund against other defendants and Venkareddy for partition and separate possession. When the said Venkareddy was taking treatment as an inpatient in J.G.Cooperative Hospital, Ghataprabha on 05.01.2004, the defendant Nos.2 and 3 have forcibly took Venkareddy to their house and they got filed vakalath on his behalf in the O.S.No.63/2003 (supra) through their adjustable Advocate and the case was adjourned on 10.02.2004, but said suit was got advanced on 24.01.2004 and got the suit compromised without intimating said fact to the Venkareddy. When the said Venkareddy was suffering from Tuberculosis disease and was in a critical health
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condition and having no sound disposing state of mind, the defendant Nos.2 and 3 got compromised the suit O.S.No.66/2003 by misleading the said Venkareddy. Said O.S.No.66/2003 is filed in respect of Item Nos.2 to 6 of Plaint A schedule properties in the instant suit, but some other properties are also entered in the compromise petition which were exclusively owned by Venkareddy showing them as joint family properties and got compromised the suit for partition even in respect of properties, which are exclusively owned by Venkareddy and by virtue of this compromise decree the plaintiffs were given share as eyewash by depicting all the properties are joint family properties. Thus, in this way the defendant Nos.2 and 3 have obtained compromise decree in O.S.No.66/2003 fraudulently. The said Venkareddy who is the father of plaintiff No.1 and husband of plaintiff No.2 died after compromise decree. It is further submitted that the plaintiffs sold the properties in land bearing Sy.No.173/1 and 173/2, which were fallen to the share of Venkareddy in O.S.No.66/2003 for meeting medical
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expenditure of Venkareddy to defendant No.2 and education purpose of plaintiff No.1. It is submitted that when all these episodes are happening the plaintiff No.1 was minor and after completion of his engineering graduation he came to know that the defendants have played fraud hence filed the instant suit for partition and separate possession and also for declaration that compromise decree in O.S.No.66/2003 is null and void as it was obtained in a fraudulent manner.
In pursuance to notice/summons issued, the defendant Nos.1 to 3 appeared and have filed their separate written statements. The defendant No.4 is the wife of defendant No.1, mother of Venkareddy and defendant Nos.2 and 3. The defendant No.4 has not filed written statement.
Defendants case:-
(i) It is the case of defendant Nos.1 to 3 in common that even though they have filed separate statements admitting relationship between the parties and
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contended the properties are ancestral and joint family properties but not self acquired properties of the father of plaintiff No.1. Further they denied that existence of joint family and properties are joint family properties. The defendants have denied that the father of plaintiff No.1 though engineer and contractor, has purchased one house and one plot situated at Dharwad and commercial complex at Maruthi Complex situated at Dharwad on his own earning but those properties were purchased in his name out of the income derived from the joint family properties. The defendants have denied that on 26.09.2003 father of plaintiff No.1 was admitted as inpatient in the Nursing Home of one Dr.S.R.Ramanagoudar and defendant Nos.2 and 3 forcibly took him to their house and the said hospital authorities have lodged complaint. Further the defendants have denied the allegation that the father of plaintiff No.1 got admitted as inpatient in J.G.Cooperative Hospital on 09.10.2003 and defendant Nos.2 and 3 took him to their house and got filed vakalath on his behalf in O.S.No.66/2003 through their adjustable Advocate.
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(ii) Further denied that the said O.S.No.66/2003 was adjourned on 10.02.2004, but defendant Nos.2 and 3 colluded with each other and got advanced the case on 24.01.2004 and though the father of plaintiff No.1 was suffering from Tuberculosis disease and had no sound state of mind, forcibly defendant Nos.2 and 3 got the compromise decree in O.S.No.66/2003 by committing fraud. Further contended that Item Nos.2 to 6 of Plaint A schedule properties herein are the suit properties in O.S.No.66/2003 but some other properties are also entered in the compromise decree and the fertile and irrigated land were fallen to the share of defendants Nos.2 and 3 and dry land were fallen to the share of father of plaintiff No.1 are all denied as false.
(iii) The defendants further contended that the plaintiffs sold the properties which were situated in Dharwad to meet medical expenses of father of plaintiff No.1 and they sold landed properties of Block Nos.173/1 and 173/2 to defendant No.1 also to meet educational
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expenses of plaintiff No.1, are all false. Further the defendants have contended that the properties bearing CTS Nos.4/28-A/2, 4/28-B/1, 4/28-B/1, 4/28-A/3, house and commercial shops in Dharwad are joint family properties. It is contended that after marriage of defendant No.3 some differences arose between the joint family members, therefore she filed O.S.No.66/2003 and at the intervention of elders in the village and in the family the parties in O.S.No.66/2003 have compromised. Accordingly, compromise decree is passed on 24.01.2004, therefore by virtue of it the properties bearing Nos. CTS Nos.4/28-A/2, 4/28-B/1, 4/28-B/1, 4/28-A/3 and lands mentioned in Item Nos.4 and 5 of the plaint A Schedule properties were fallen to the share of deceased Venkareddy. The father of plaintiff No.1 had sound disposing state of mind at the time of compromise and after compromise decree the father of plaintiff No.1 got mutated khatha of the properties in his name, which has fallen to his share in O.S.No.66/2003. After death of father of plaintiff No.1, the plaintiff Nos.1 and 2 herein got
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mutated khatha of the properties in their name. The father of plaintiff No.1 during his lifetime has not challenged the said compromise decree. The said compromise decree has attained finality. After partition in O.S.No.66/2003 deceased Venkareddy sold the properties bearing CTS Nos.4/28-A/3, 4/28-B/2 and 4/28-B/1. After death of Venkareddy, the plaintiffs sold land bearing Sy.Nos.173/1 and 173/2 at Dharwad to the defendant No.2 for a sum of Rs.5,52,000/-. Therefore, contended the compromise decree in O.S.No.66/2003 is acted upon.
It is further submitted that after the partition defendant No.1 purchased plaint B schedule property and it is his self acquired property. Item No.7 of plaint A schedule property is owned by mother of defendant No.11 by name Smt.Bheemavva, wife of Bheemappa Belagiri and this is her Sthree Dhana property and as such that property was not included in O.S.No.66/2003. The said Bheemavva died on 04.08.2004. Her daughter Lakshmavva filed O.S.No.158/2011 and the suit ended in
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compromise on 09.11.2011. Therefore, the plaintiffs have no right over the said property.
The plaintiffs were very well aware about the compromise decree in O.S.No.66/2003 and they enjoyed the fruits of decree and thus, filing of instant suit is on false ground therefore requested to dismiss the suit. FINDINGS OF THE TRIAL COURT
The trial court after framing issues has dismissed the suit filed by the plaintiffs for partition on the reason that deceased Venkareddy was in a sound disposing state of mind and accordingly entered into compromise in O.S.No.66/2003 and therefore, the properties bearing Nos.4/28-A/2, 4/28-B/1, 4/28-B/2 and 4/28-A/3 at Dharwad and lands mentioned in Item Nos.4 and 5 of plaint A schedule properties were fallen to the share of deceased Venkareddy. After compromise decree the father of plaintiff No.1 got mutated the khatha of the properties in his name after the death of Venkareddy, the plaintiff Nos.1 and 2 got mutated khatha of properties in
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their name. Deceased Venkareddy has not challenged the compromise decree in O.S.No.66/2003 during his lifetime. Deceased Venkareddy sold the properties therefore it is opinion of the trial court that said compromise decree is acted upon with consciousness of deceased Venkareddy. It is further submitted that when plaintiffs have enjoyed fruits of the compromise decree, the present suit is not maintainable as there is no cause of action.
Further the trial court assigned the reason that when plaintiff No.1 was minor, plaintiff No.2 being the mother of plaintiff No.1 filed G&WC No.11/2008 and obtained permission from the Court to sell the property on behalf of plaintiff No.1. Therefore, plaintiff No.2 after obtaining permission from the trial court being appointed as guardian of plaintiff No.1 sold suit Item Nos.3 and 4 of plaint A schedule properties to defendant No.2 herein, then defendant No.2 has got mutated his name. Further after partition the defendant No.2 purchased plot Nos.15 and 16 of Navalur village and as such, they are self
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acquired properties of defendant No.2. Therefore, it is the reasoning of trial court that after compromise decree in O.S.No.66/2003 whatever properties are given to mother of plaintiff No.1, deceased Venakreddy has sold some other properties, which means deceased Venkareddy has accepted the correctness of compromise decree otherwise he would have challenged it, but did not challenge it. Therefore, trial court dismissed the suit.
Further the trial Court opined that plaintiff No.2 after death of her husband has sold properties which were fallen to the share of deceased Venkareddy after obtaining order from the Court in G&WC No.11/2008. This shows the compromise decree is fully acted upon and has not been challenged. Further the trial court observed that after admitting the deceased Venkareddy into Dr.S.R.Ramanagoudar Hospital and the deceased was taken forcibly from the hospital and where the deceased was in all these four months till the date of compromise decree the plaintiffs have not produced evidence and there
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is no evidence that what efforts the plaintiffs have made to trace-out the deceased. But, no action on the part of plaintiffs in tracing out the deceased except showing that the deceased was in his brother’s house and quite naturally the deceased was suffering from tuberculosis, hence, he might have been taking treatment, which cannot be found fault with and cannot be suspected as raised by the plaintiffs.
Further observed that from the date of compromise decree in O.S.No.66/2003 on 24.01.2004 there is a gap of 1 year 9 months between the date of compromise decree and the death of deceased. Therefore, opined that the deceased was healthy in all these period. In this regard, the medical evidence produced by the plaintiffs are rejected. The trial court has opined that deceased was not bed ridden. Further opined that the properties of Item No.7 of plaint A schedule property is not their joint family property but belongs to Smt.Lakshmavva, who is the mother of defendant No.1.
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Further observed that plaintiffs have failed to prove that the deceased was having independent source of income to purchase the property. Further rejected the contention of plaintiffs that in O.S.No.66/2003 there is no equal distribution of the properties. Therefore, on all these reasons the trial court dismissed the suit of the plaintiffs. Being aggrieved by the dismissal of suit for partition the plaintiffs have preferred the instant regular appeal. SUBMISSION OF COUNSEL FOR THE APPELLANTS/ PLAINTIFFS:
Learned counsel for the appellant/plaintiff submitted that defendants have played fraud by filing suit in O.S.No.66/2003 and got compromised in Lok Adalath when deceased Venkareddy was severely suffering from Tuberculosis and was in hospital and got discharged forcibly from the hospital and kept him in their house and influenced feeble mind of the deceased and thus, obtaining decree in Lok Adalath in this way is nothing but fraud played on the deceased, on the Court and on the Lok Adalath Institution. In this regard, when the deceased
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was admitted in Dr.S.R.Ramanagoudar Nursing Home for treatment of Tuberculosis but without taking permission from the doctors has taken away from the hospital without consent of discharge from the doctors and hospital authorities and in this regard, Dr.S.R.Ramanagoudar had lodged complaint to police, which is proved by evidence PW3 - Dr.S.R.Ramanagoudar. Further submitted that defendants have colluded with each other and filed O.S.No.66/2003 and when the matter was posted on 10.02.2004 the said suit got advanced to 24.01.2004 and on the very same day the compromise decree was effected. It is submitted that as on that date the deceased was suffering from Tuberculosis and forcibly taken away from Dr.S.R.Ramanagoudar Nursing Home and when the deceased was in a severe health problem of Tuberculosis without intimating him but just by taking his signature got compromised by engaging an Advocate on behalf of deceased, who is adjustable to the defendants. Further submitted that when the health condition of the deceased is deteriorated day-by-day due to Tuberculosis and the
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mind of deceased has become feeble in that mental condition by engaging an Advocate adjustable to the defendants got compromise decree, is nothing but playing fraud. Therefore, prays to set aside the judgment and decree passed by the trial court.
Further submitted that in O.S.No.66/2003 while obtaining compromise decree the self acquired properties of the deceased were also included which were not schedule properties in the plaint in O.S.No.66/2003. Therefore, submitted that self acquired properties of the deceased were also included subsequently during compromise but they were not in the schedule properties in O.S.No.66/2003. Thus it is amounting to fraud on the Court and on the Lok Adalath Institution. Therefore, the instant suit is maintainable as disputed fact of playing fraud is involved to adjudicate in the suit. Therefore, the instant suit is maintainable. Further submitted that though the Hon’ble Supreme Court in the case of BHARGAVI CONSTRUCTION & ANOTHER
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VS.KOTHAKAPU MUTHYAM REDDY & OTHERS reported in (2018) 13 SCC 480 has held that against the award passed by the Lok Adalath only Writ Petition is maintainable but that is according to facts and circumstances in that case. But in the present case, fraud is played and to establish the fraud the adjudication is necessary and thus, the suit is maintainable. Therefore, submitted that the trial court has not appreciated evidence in this regard correctly.
Further submitted that defendants have created circumstances compelling the plaintiffs to sell properties which were given to the share of plaintiffs in a compromise decree in O.S.No.66/2003 to the defendant No.2 by taking disadvantage of the fact that the plaintiff No.1 was minor and plaintiff No.2 was widow. Therefore, just because the plaintiffs have sold out the lands for educational expenses of plaintiff No.1 and medical expenses since at that time plaintiff No.1 was minor and also to reimburse loan amount taken by the plaintiff No.2 for the medical
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treatment of her husband the deceased. Therefore, when under these circumstances even though the plaintiffs have sold out the properties to defendant No.2 that does not amount to estoppel on the part of plaintiffs and is not amounting to acting upon the compromise decree. Therefore, prays to set aside the judgment and decree passed by the trial court.
Further submitted that all these exercises made by the defendants when the deceased was suffering from severe Tuberculosis and was admitted in the hospital for treatment and plaintiff No.1 was minor also when the plaintiff No.2 was struggling to survive her husband the deceased. Therefore, on these circumstances when the plaintiffs are suffering hardship, mental agony and the deceased was in a feeble state of health both physically and mentally, getting compromise decree in O.S.No.66/2003 is nothing but fraud and is clearly established through evidence but the trial court has not appreciated the evidence in true and correct perspective
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manner on all its preponderance of probabilities. Therefore, the reasoning given by the trial court in the judgment and decree are perverse therefore prays to allow the appeal and decree of the suit.
Learned counsel for the appellants/plaintiffs submitted that the defendants have played fraud on the Court and Lok Adalat. Learned counsel for the appellants/plaintiffs have submitted chronological events occurred in O.S.No.66/2003 on day to day eventually how the institution of Lok Adalat is taken as granted, thus, prays to declare that the compromise decree in O.S.No.66/2003 dated 24.01.2004 is not binding on the plaintiffs in respect of some of the schedule properties in the suit.
Learned counsel for the appellants/plaintiffs places reliance on the following decisions:
HAMZA HAJI VS. STATE OF KERALA AND ANOTHER reported in (2006) 7 SCC 416.
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MEGHMALA AND OTHERS VS. G. NARASIMHA REDDY AND OTHERS reported in
(2010) 8 SCC 383.
JAYASHREE JAYANTH VS. N KRISHNASWAMY & OTHERS (NC: 2023: KHC: 37548-DB) in RP No.540/2019 disposed of on 13.10.2023
S.P. CHENGALVARAYA NAIDU VS. JAGANNATH AND OTHERS reported in (1994) 1 SCC 1.
SRI. ANANTHAIAH VS. SMT. GANGAMMA & OTHERS (2015) 3 KCCR 2106.
MAHADEVI & ANOTHER VS. KENCHAVVA & OTHERS reported in ILR 2014 KAR 1819
RATNAM CHETTIAR & OHTERS VS. S. M. KUPPUSWAMI CHETTIAR & OTHERS reported in (1976) 1 SCC 214.
A. GANAPATHI NAYAK VS. SRI. DEVANATHA reported in ILR 1999 KAR 613.
SUBMISSIONS OF LEARNED COUNSEL FOR THE RESPONDENTS/DEFENDANTS
On the other hand, the learned counsel for the defendants submitted that suit filed by the plaintiffs is not maintainable on the ground that earlier O.S.No.66/2003
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was ended in a compromise and attained finality as the same is not challenged and said compromise decree was acted upon by plaintiffs it amounts to accepting compromise decree passed in the suit. Therefore, the plaintiffs are estopped to file suit once again as per constructive and direct principle of ‘plea of estoppel’ as per Section 115 of the Indian Evidence Act. Further submitted that under Order 23 Rule 3A of CPC bars to file another suit. The plaintiffs have sold property Nos.173/1, 173/2 to the defendant No.2 by the plaintiffs, which proves that the compromise decree is acted upon by the plaintiffs. Thus, upon a compromise decree the status of joint family was extinguished, hence the suit for partition once again is not maintainable. Further the plaintiffs have not challenged sale deeds executed in favour of defendant No.2 and other purchasers of the properties fallen into share of plaintiffs. Further submitted that if for any reason the plaintiffs want to challenge compromise decree that is only by way of filing writ petition but not by way of filing suit. Deceased Venkareddy has accepted compromise decree in his
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lifetime and sold property. Therefore, the plaintiffs after death of deceased cannot question once again the compromise decree.
Learned counsel for the defendants/respondents further submitted that once Lok Adalat passes compromise decree, that cannot be reopened in subsequent suit and filing of the suit questioning the compromise decree is not maintainable and the only remedy lies is to file writ petition by invoking article 226 and 227 of the Indian Constitution.
Learned counsel for the respondents/defendants places reliance on the following decisions:
SMT. SHANTAWWA VS. SHRI. HANAMANT BHIMAPPA BHAJANTRI (NC: 2024: KHC-D:2404 in MSA No.100010/2021 disposed of on 02.02.2024.
RIPUDAMAN SINGH VS. TIKKA MAHESHWAR CHAND reportable Judgment in Civil Appeal No.2336/2021(arising out of SLP (Civil) No.4035/2017 disposed of on 06.07.2021.
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BHARVAGI CONSTRUCTIONS & ANOTHER VS. KOTHAKAPU MUTHYAM REDDY & OTHERS reportable Judgment in Civil Appeal No.11345/2017 (arising out of SLP (C) No.23605/2015 disposed of on 07.09.2017.
STATE OF PUNJAB & ANOTHER VS. JALOUR SINGH &OTHERS reported in (2008) 2 SCC 660.
MONESH VS. SHRI. PRASHANT & OTHERS (NC: 2023: KHC-D: 10048 in RFA No.100099/2014 disposed of on 04.09.2023.
Upon hearing the rival submissions made by the respective counsels, following points arise for consideration: (i) Whether, under the facts and circumstances involved in the case, suit in O.S.No.66/2003 ended in a compromise in Lok Adalath can be reopened/questioned on any ground of fraud/ misrepresentation/ undue influencing mind, considering weak health position of one of the parties in the suit (Venkareddy) who is father of plaintiff No.1 and husband of plaintiff
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No.2 in subsequent suit by invoking Section 26 Code of Civil Procedure?
(ii) Whether, under the facts and circumstances involved in the case, the plaintiffs prove that the compromise decree in O.S.No.66/2003 obtained in Lok Adalat is by playing fraud?
(iii) Whether, the suit filed for partition by the plaintiffs is maintainable and the plaintiffs are entitled for share in the suit schedule properties?
(iv) Whether, the judgment and decree passed by the trial court requires any interference by this Court?
(v) What order?
The above points are interlinked with each other on question of facts and law and therefore they are taken up together for common consideration in order to avoid repetition.
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ANALYSIS 23. The question is, when plaintiffs plead that there was fraud played in obtaining compromise decree and challenging the said compromise decree in subsequent suit, whether filing of suit is maintainable or not and whether remedy lies only through article 226 and 227 of the Indian Constitution is to be considered. 24. The question to be considered is, when there is allegation of fraud pleaded in the plaint, whether on the disputed facts of fraud played could be considered in the writ petition is a matter to be considered. The disputed facts are not to be adjudicated in writ proceedings. When compromise decree is challenged by contending that fraud is played for obtaining compromise decree, there are several disputed facts emerge and for such adjudication then suit is maintainable. 25. Section 9 of the Code of Civil Procedure stipulates as follows:
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“The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”
When the plaintiffs have pleaded fraud is played and denied by the defendant, then there is issue regarding fraud is played or not have to be adjudicated in the suit itself. Though, compromise decree by Lok Adalat is final and no appeal shall lie, but it cannot take away jurisdiction of Civil Court questioning the compromise decree in subsequent suit, when there is allegation of fraud played while obtaining compromise decree. For considering the issue regarding compromise decree is obtained by playing fraud or not adjudication is necessary and essential. Evidence cannot be led in writ proceedings. Therefore, as per section 21 of the Legal Service Authority Act, award of Lok Adalat shall be final but that cannot take away jurisdiction of the Civil Court. Therefore, where there is allegation of fraud is made in the plaint that in the Lok Adalat compromise decree obtained is by playing fraud, then suit is maintainable. Therefore, when there is
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allegation of fraud played, impersonation, threat, undue influence or in any way compromise decree is obtained in unnatural course, suit is maintainable and for proving these elements burden lies on the parties who asserts these elements.
Upon considering the submissions made by the learned counsels appearing for the parties on facts, circumstances and evidence involved in the case and law the case is considered in the background as to what might have been transpired before the death of Venkareddy and in what status the plaintiffs were residing when that compromise decree in O.S.No.66/2003 was passed at that time plaintiff No.1 was minor and deceased Venkareddy was suffering from Tuberculosis as per the evidence on record. The plaintiff No.1 has stated in the evidence that on 16.09.2003 the deceased was admitted as inpatient in Dr.S.R.Ramanagoudar Nursing Home, Dharwad and when he was in hospital as inpatient, the defendant Nos.2 and 3 have taken away the deceased to their house without
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intimating the doctors/hospital authorities of Dr.S.R.Ramanagoudar Nursing Home and in this regard, Dr.S.R.Ramanagoudar is examined as PW3 and he has deposed that deceased Venkareddy has disappeared from hospital on 26.09.2003 and his whereabouts are not found. Hence, he has lodged complaint before the police. Thereafter also the deceased Venkareddy was not got admitted to the hospital.
It is the evidence of PW3 – doctor that the deceased Venkareddy was admitted on 16.09.2003 as inpatient since the deceased was suffering from tuberculosis and accordingly started to give medical treatment to him and in the midst of treatment the deceased has disappeared on 26.09.2003. In this regard, PW3 has submitted medical documents as per Ex.P-38. Therefore, it is proved that before four months from the date of effecting compromise decree the deceased Venkareddy was in the hospital for treatment of Tuberculosis. It is also proved that the deceased
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Venkareddy was in feeble state of health since he was in the hospital for getting treatment for Tuberculosis. PW1 has stated that after forcible discharge of deceased from the hospital on 26.09.2003 by the defendant Nos.2 and 3, the deceased was taken to their home Karlavada Village, therein there was no proper medical facility available. Thereafter, the deceased was admitted in Sri.G.G.Cooperative Hospital, Ghataprabha on 09.10.2003 as inpatient. In this period the defendant No.3 has filed suit in O.S.No.66/2003 on 27.11.2003.
Upon considering chronological events in this case, the Court has issued summons to the defendants in O.S.No.66/2003 returnable by 16.01.2004.
On 16.01.2004 advocate for the defendants have appeared and for filing written statement the date is fixed on 10.02.2004. But in the meantime, on 24.01.2004 the defendants have filed an application for advancement requesting to take up the matter on board stating that the case is compromised as per the elders say and they would
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file the compromise petition. The said application is signed by Advocate for plaintiffs only. The plaintiff in O.S.No.66/2003 is defendant No.3 in the present suit. This fact is not disputed by the defendants in the present case. Ex.P-68 is the certified copy of the order in O.S.No.66/2003, Ex.P-69 is the certified copy of summons in O.S.No.66/2003, Ex.P-70 is the certified copy of the plaint in O.S.No.66/2003, Ex.P-71 is certified copy of compromise petition in O.S.No.66/2003, Ex.p-72 is the certified copy of the Memo, Ex.P-73 is the certified copy of decree in O.S.No.66/2003. These documents are not disputed by the defendants. The chronological events occurred in O.S.No.66/2003 are to be appreciated. On 24.01.2004 an application for preponement of suit is filed for taking up the case on board. On the same day that is on 24.01.2004 compromise petition was filed in the Court itself after getting the case posted on that day’s board, stating that the matter is compromised between the parties. On the same day the suit was referred to Lok Adalat. On the same day that is on 24.01.2004 the Lok
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Adalat has passed compromise decree. When there is no point for negotiation/discussion to be held before Lok Adalath, then it was unwarranted to refer the case before the Lok Adalath. The plainitff in O.S.No.66/2003 by filing memo to the Court has already stated the matter is compromised and accordingly filed compromise petition also. Then it was incumbent on the Court to draw decree as per compromise petition, but instead of doing so the matter in O.S.No.66/2003 got to refer before Lok Adalath. Where as, as per the plaintiff in O.S.No.66/2003 the matter was already compromised, hence, there was no occasion for the Court to refer O.S.No.66/2003 to the Lok Adalath. Where there is no point of controversy to discuss in Lok Adalath, what is the purpose in refering the case to the Lok Adalath, is not considered by the Court in dealing with the O.S.No.66/2003. It is note worthy to mention here that upon considering the evidence on record, as discussed above, the deceased Venkareddy was suffering from severe Tuberculosis and was under medication as inpatient in the hospital and he was taken forcibly from
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the hospital without consent of hospital. Then on the very same day i.e., on 24.01.2004, the O.S.no.66/2003 was placed before the Lok Adalath and compromise decree is passed. On these days when the deceased Venkareddy was suffering from severe illness of Tuberculosis and was admitted in the hospital as inpatient, got forcibly taken away from the hospital without informing the hospital and taken to the village wherein no proper medical facility is available and then managing to get compromise decree on 24.01.2004, creates doubt in the mind why the defendants herein have not made an effort to dupe deceased Venkareddy and the plaintiffs herein. It is also not borne out from the record that the decesed Venkareddy was present on 24.01.2004 before the Court and before the Lok Adalath.
Therefore, on all these facts and circumstances involved, the compromise decree passed in O.S.No.66/2003 is nothing but playing fraud just to deprive the legitimate rights of deceased Venkareddy and the plaintiffs. At that particular poiint of time on 24.01.2004 the plaintiff No.1 was minor and plaintiff No.2
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being wife of deceased was struggling hard to save life of the deceased by admitting in hospital but wihtout consent of plaintiff No.2 and hospital, the deceased Venkareddy was taken away from the hospital. These circumstances probabalises the case of the plaintiffs that defendants have managed to get decree in O.S.No.66/2003 by playing fraud on the deceased Venkareddy. The plaintiffs in the present case have clearly pleaded in the plaint and have lead evidence successfully both oral and documentary in proving the fraud played by misusing the institution of Lok Adalath.
This Court in the case of SRI. ANANTHAIAH VS. SMT. GANGAMMA & OTHERS (2015) 3 KCCR 2106 at Para 12 has held as follows:
“12. The functions of Lok Adalats relate purely to conciliation. A Lok Adalath determines a reference on the basis of a compromise or settlement at its instance, and puts its seal of confirmation by making an award in terms of the compromise or settlement as observed by the Apex Court in State of Punjab v. Jalour Singh. Thus, if the parties have already entered into a compromise and report the same by filing a compromise petition before the Court, nothing else is
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required to be done in the matter and therefore the Civil Court is not justified in referring the same to the Lok Adalat. There was no dispute existing at the time of reference to the Lok-Adalat, which is a condition precedent for reference. When the compromise petition is filed before the Court, it is the obligation on the part of the Court to look into the compromise, find out whether the same is lawful or not. If the compromise is lawful, the Court has to record the same. In a situation like the one on hand if the Judge refers the matter to Lok Adalat, it is a clear case of abdication of responsibility of considering the compromise petition by the Judge and refusing to pass an order thereon.”
A trend is developed in recent years that just to show statistics that such number of cases are disposed of though already the matters are compromised and nothing remains for negotiation/conciliation for settlement but the compromise petitions filed before the Court are referred to Lok Adalath and then obtained decree in Lok Adalath for statistical purpose. In this way the institutionof Lok Adalath is being misused. This is not the purpose of Lok Adalath. It can be said in a simple way that the institution of Lok Adalath means for negotiation and making the parties to arrive at settlement and to pass compromise decree. Therefore, before arriving at compromise in the
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Lok Adalath there should have been negotiation between the parties in presence of Members in the Lok Adalath. The task of Lok Adalath is making effort to connect the parties to make them to arrive to just conclusion and with the consent of parties in the Lok Adalath the decree can be passed. But in the present case all these principles are flouted.
The defendants in the present case are much harping upon that there was already compromise in O.S.No.66/2003 and a compromise decree is passed and that is acted upon. Hence, the present suit for partition is not maintainable. The main thrust canvassed by the counsel for the defendants that there was already partition through compromise decree in O.S.No.66/2003 and it was acted upon, therefore, nothing remains in the present suit to consider partition once again. Upon the submission made by the counsels for the defendants when the above observations are made, it is proved that the defendant Nos.1, 2 and 3 have played a prominent role in getting
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compromise decree in O.S.No.66/2003. Considering all the above eventualities after reappreciating evidence on record, for filing suit in O.S.No.66/2003 and till getting compromise decree on 24.01.2004, there was a manipulation and fraud played stage by stage. Thus, the compromise decree passed in O.S.No.66/2003 is in nullity for the aforesaid reasons.
The deceased Venkareddy not only has got admitted in one hospital but admittedly he was admitted in various hospitals for different periods. The deceased Venkareddy was suffering from severe Tuberculosis and he was terminally ill and he was taken treatment as indoor inpatient in various hospitals such as Dr.S.R.Ramangoundar Nursing Home, Dharwad; Dr.S.P.Shetar, T.B.Specialist; J.G.Co-operative Hospital; Dr.Pradeep Shantagriri, K.M.C. Hubballi; Dr.A.Dasagupta & Dr.S.R.Hebbal, Spandana Hospital, Dharwad; and S.D.M.Hospital, Sattur, Dharwad.
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The above facts are pleaded and the plaintiffs have produced evidence in this regard. Exs.P-18 to P-58 are the medical records pertaining to deceased Venkareddy proving that the deceased Venkareddy was taking treatment being inpatient in the various hospitals. Furthermore, two doctors are examined as PW3 and PW4 proving these facts. As discussed above, PW3 has given evidence that the deceased Venkareddy was taken from the hospital on 26.09.2003 and it is evidence of the PW3 doctor that from that day onwards the deceased Venkareddy has disappeared and accordingly he has lodged complaint before the police. These facts prove the defendant Nos.1 to 3 have hatched a plan on the guise of getting compromise decree through judicial process and Lok Adalath have managed in getting compromise decree at stage by stage. This shows conduct of the defendant Nos.1 to 3 and is relevant as per Section 8 of the Indian Evidence Act proving how the defendant Nos.1 to 3 have played fraud on the Court and before Lok Adalath.
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Thus, when the plaintiff in O.S.No.66/2003 has filed compromise petition as per Order 23 rule 3 of Code of Civil Procedure then, it was incumbent upon the court after making necessary enquiry and ensuring presence of parties in the court ought to have passed order on the compromise petition itself instead of referring the case to the Lok Adalat. When there is no element of discussion and compromise petition is filed stating that the parties have settled the matter amicably and written down in the compromise petition, then there would not be any negotiation talks in the Lok Adalat, but the trial Court in O.S.No.66/2003 has mechanically referred the case to the Lok Adalat along with compromise petition. This shows that the presiding officer of the trial Court has referred the case along with compromise petition to the Lok Adalat only for statistical purpose which is not correct procedure and practice of taking benefit of institution of Lok Adalat. Lok Adalat is meant for negotiation enabling the parties to come to a compromise in the case. Before making compromise decree in Lok Adalat, there ought to have
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been process of resolving dispute by holding negotiation and to convince the parties to arrive at a just/right conclusion and then draw compromise decree/award. When compromise petition is filed, when the signature of the plaintiff and defendant Nos.1 and 3 are affixed, then there was no issue of holding negotiation talks/conciliation in Lok Adalat and in this event on the basis of the compromise petition by which already the parties have arrived to conclusion, then there was no question of referring the case to Lok Adalat. But contrary to these principles, the trial Court has referred the case to the Lok Adalat. Therefore, upon considering the dates and events in O.S.No.66/2003 as in detail discussed above, summons were issued to the defendant in O.S.No.66/2003 returnable by 16.01.2004 for filing written statement the date is fixed on 10.02.2004. But in the meantime on 24.01.2004, the plaintiff and defendant Nos.1 and 3 (in O.S.No.66/2003) have filed an application for advancement and the case was taken on board on the very same day on 24.01.2004 and on very same day the
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case was referred to Lok Adalat and on the very same day the Lok Adalat passed compromise decree. These eventualities prove non application of mind of the trial Court and plaintiff, defendant Nos.1 and 3 have managed to get compromise decree by including other properties which were not in the schedule in O.S.No.66/2003. Thus, it is proved fraud is played in the Court and in the Lok Adalat. Thus, the compromise decree dated 24.01.2004 in O.S.No.66/2003 is not binding on the plaintiffs.
It is not disputed fact that the deceased Venkareddy is an Engineer and a Class I Contractor residing in Dharwad City and carrying out his contract business and earned separate properties out of his self income being an income tax assessee and as also an agriculturist. But the properties acquired in the name of deceased Venkareddy were also included in O.S.No.66/2003 and in a compromise decree in O.S.No.66/2003. Whether the properties of deceased Venkareddy are not found in the schedule in
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O.S.No.66/2003 but the properties of deceased Venkareddy were also included at the time of passing compromise decree. The plaintiffs have produced exhibits in this regard proved the above facts. Exs.P-1 to P-10 are the record of rights, Exs.P-11 to P-13 are the assessment register extracts, Exs.P-80 to 82 are the sale deeds, which prove the above facts.
Suit lands involved in the suit in O.S.No.66/2003 are as follows: a. Suit Lands Involved In The Suit Village Sy.No. Area. A – Gs. Karlawad 30/2 10 - 04 Karlawad 173/1 04 – 24 Karlawad 173/2 04 – 24 Karlawad 122 19 - 09
b. Plaintiffs share is allotted as follows: 122 19A - 09 Gs.-(out of this Eastern portion of 08A-09 Gs.)
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c. Defendant No.2 – Venkareddy: 173/1 04A - 24 Gs. 173/2 04A - 4 Gs.
AND: House and Plot and Rooms in ‘Maruti Complex’ of Line Bazar of Dharwad city. - Not Subject matter of suit in O.S.No.66/2003. AND: GOLD, SILVER & HARD CASH.
d. Defendant No.3 Ligaraddy Share as follows: 122 19A - 09 Gs.-(out of this Western portion of 11A - 00 Gs.) 30/1 10A - 04 Gs. 30/2 10A - 04 Gs
AND: House, backyard, and Plot situated In Karlawad village. - Not Subject matter of suit in O.S.No.66/2003.
e. Defendant No.1: Chouraddy Share:- * 4 Acres of land held jointly with bother - Not Subject matter
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Hemaraddy-situated in Karlatti village, tal:Navalgund. of suit in O.S.No.66/2003. AND: Plot situated at Gokul Road In Hubballi. - Not Subject matter of suit in O.S.No.66/2003. AND: GOLD AND SILVER AND HARD CASH.
Also there are gold, silver and hard cash are subject matters in O.S.No.66/2003.
Therefore, considering the above shares allotted in O.S.No.66/2003 on the guise of compromise decree, it is clearly proved that a well thought plan was hatched to misuse judicial process and Lok Adalat. The total effect of this compromise decree defendant No.3 Ningareddy has got Forty (40) acres of land and the deceased Venkareddy has got share of Nine (9) acres of land.
The defendant Nos.1 and 2 who are examined as DW-1 and DW-2 respectively in the evidence have tried to deny everything even the fact of terminal illness and sufferings undergone by the deceased Venkareddy. The defendants have tried to be ignorant about the treatment
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given to the deceased Venkareddy spending huge amounts for treatment and sufferings undergone due to the illness of tuberculosis. Therefore, all these eventualities have been proved by the plaintiffs by adducing oral and documentary that the defendants nos.1 to 3 have manipulated the things according to their whims and fancies thus, fraud is played.
DW-1 who is defendant No.2 has deposed to the extent in examination in chief that the deceased Venkareddy was in very sound state of mind and capable to understand and he has agreed to compromise the suit in O.S.No.66/2003 and the said compromise petition was presented before the Lok Adalat. But, as per the medical records produced by the plaintiffs above discussed proves the fact that the deceased Venkareddy was suffering from Tuberculosis disease. Thus, he was terminally ill and how could the deceased Venkareddy had sound state of mind and body at that point of time, this evidence of DW-1 is proved to be false. Though, it is evidence of DW-1 that the
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deceased Venkareddy and the plaintiff No.2 have sold the properties but it is to be considered under what compelling circumstances they have sold properties that at the time the deceased was suffering from terminal illness of Tuberculosis, hence, there was huge expenditure on medical treatment was needed and at that time the plaintiff No.1 was minor and for his educational expenses some money is required, therefore, under those compulsive possession the properties might have been sold, therefore, this cannot be said that the compromise decree in O.S.No.66/2003 is acted upon.
Even in the Lok Adalath the properties of deceased Venkareddy were included in Lok Adalath compromise decree those were not find place in the plaint in O.S.No.66/2003. The net effect of compromise decree in O.S.No.66/2003 is that the defendant No.3 – Lingareddy has been allotted Forty (40) acres of land to the exclusion of other son namely, deceased Venkareddy. The deceased Venkareddy is allotted in the compromise
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decree a meager portion of land of about Nine (9) acres. This arrangement got through compromise decree before Lok Adalath prove the fact that there is a collusion between plaintiffs and defendant Nos.1 and 3 in O.S.No.66/2003. Thus, caused deprivation of right to deceased Venkareddy of getting his legitimate share. Therefore, on all these reasons, it is proved that the compromise decree in O.S.no.66/2003 is one of the manipulative acts with ulterior design just to deprive and deny the legitimate rights of the deceased Venkareddy. Thus ultimately the plaintiffs have suffered.
The learned counsel for the defendants in the present suit submitted that the compromise decree is effected and acted upon and is accepted by the plaintiffs thus the deceased Venkareddy has accepted the compromise decree in his lifetime and thereafter by the plaintiffs also. He argued with reference to the fact that whatever share the deceased Venkareddy obtained in the compromise decree they were sold by the plaintiff No.2 to
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the defendant No.2 herein and to some other person. Therefore, it is argued that the act of plaintiff No.2 in selling the properties allotted to the share of deceased Venkareddy proves the fact that compromise decree is accepted by deceased Venkareddy and after his demise by the plaintiffs and thus it was acted upon and cannot be reopened/questioned.
It is to be considered in the background under what compelling circumstances the plaintiff No.2 has sold properties to sell the lands as the plaintiff No.2 became widow and plaintiff No.1 was minor. Hence, for pursuing education of plaintiff No.1 and for survival in the society as plaintiff No.2 did not have any source of income, therefore, the plaintiff No.2 has sold properties to the defendant No.2 and other person. Therefore, just because the plaintiff No.2 has sold the properties which were given to the deceased Venkareddy in O.S.No.66/2003 cannot be the reason to say that the partition effected through compromise decree in O.S.No.66/2003 is accepted and
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acted upon. Furthermore, as discussed above, the defendant No.2 herein has got huge share of 40 acres of and whereas deceased Venkareddy has got 9 acres of land, which proves how and in what manner O.S.No.66/2003 is compromised and got managed in obtaining compromise decree. Therefore, there is no merit in the submission made by the learned counsels for the defendants that the compromise decree was accepted and acted upon and the suit filed by the plaintiffs is not maintainable.
When it is proved that as discussed above under what circumstances in O.S.No.66/2003 and obtained compromise decree and though apparently the plaintiff No.2 sold out the property of share allotted to the deceased Venkareddy but as found there is an unequal partition in O.S.No.66/2003 and also the compromise decree is obtained through fraud as discussed above, hence the fraud played vitiates the entire things occurred in the case therefore the compromise decree in
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O.S.No.66/2003 is declared to be void and nullity. Thus, the relationship between the parties and suit properties are joint family and ancestral properties are proved hence, they are amenable for partition. Accordingly, the plaintiffs are entitled to the share in the properties as prayed for. Therefore, the suit filed by the plaintiff is liable to decreed and thus, it is decreed as prayed for.
This Court has perused the principle of law laid down by the Hon’ble Supreme Court cited supra and the law laid down therein are followed except where, factual matrix differs between the instant case and in the cited cases. 46. Fraud vitiates everything. Justice in fair and fraud cannot go hand in hand. The basic element of making the fraud is having deceitfulness in the mind. Commission of deception is the basic element in the mind to act any fraud. Whatever may be acts/deeds/orders/judgment are out of result of fraud played such order/judgment/decree/acts/deeds/actions
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are vitiated from the root of the cause and void ab-initio. Hon’ble Supreme Court in the case S.P. CHENGALVARAYA NAIDU VS.JAGANNATH & OTHERS reported in (1994) 1 SCC 1 has observed at Para No.5 and 6 as follows: “5. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property- grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. 6. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A
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fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Ex. B-15) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court. We do not agree with the observations of the High Court that the appellants- defendants could have easily produced the certified registered copy of Ex. B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” (Emphasis supplied by me) (also in the case HAMZA HAJI vs. STATE OF KERALA AND ANOTHER reported in (2006) 7 SCC 416 and MEGHMALA AND OTHERS VS. G. NARASIMHA REDDY AND OTHERS reported in (2010) 8 SCC 383).
Where fraud is played in getting compromise of suit filed for partition that can be reopened. The Hon’ble Supreme Court in the case of RATNAM CHETTIAR AND OTHERS VS. S.M. KUPPUSWAMI CHETTIAR AND
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OTHERS reported in (1976) 1 SCC 214 at Paragraph No.19 has held as follows: “19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge: (1) A partition effected between the members of the Hindu Undivided Family by their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside. (2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is bindig on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times, if it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair.”
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Therefore, partition can be reopened, if it is conclusively proved that it is unjust, unfair illegal and detrimental to the interest of the coparceners.
Thus, the judgment and decree passed by the trial court in dismissing the suit is liable to be set aside accordingly it is set aside by decreeing the suit filed by the plaintiffs. SOME OBSERVATIONS AND DIRECTIONS ON LOK ADALAT
“The Lok Adalat is an unique institution which does handle only their mutual disputes and points of contention but also contributes to their well- beings in several other ways. It means the aspirations of the people by getting them economic and social justice. Their main aim is to settle the dispute in such a manner that the mutual relations of the disputants remains practically the same as existed before the commencement of such a disputes. They aim not only at the restoration of normal relations between the disputing individuals and families but also at a better and more lasting solution of the problem so that their future relations might not get strained at a slight provocation and a tense situation in the immediate future might be avoided. More so, Lok Adalat lays a great emphasis on the social aspect of the dispute also. Obviously, it holds that the aim of justice is not to pronounce a barren decision on the basis of law
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evidence only but that it should also have two aims and objectives in its decision-making process: (a) The wrong doer might repent and mend his ways and may not repeat the wrong, and (b) the tension between the two parties may be minimized so that their mutual relations might again get normalized. It always aims at the removal of misunderstanding at the initial state so that any trivial disputes might not grow into proportions and reach a point of no return.
From the above study of Lok Adalat it is now quite evident that the mechanism of Lok Adalat is not just a dispute resolution forum or a contrivance introduced to reduce court arrears, but a peoples movement for orderly progress through rule of law and participate in self- government in the cause of social justice. To quote Madhava Menon.”
“Lok Adalat has the potential for social reconstruction and legal mobilization for social change. It can influence the style of administration of justice and the role of lawyers and judges in it. It can take law closer to the life of the people and reduce disparity between law in the books and law in action. Of course, in wrong hands it has also the potential to undermine stability and respect for the system of justice and to act as yet another forum of exploitation of ignorant and poor masses. It may be used by self-seeking politicians, lawyers and judges to advance their own interests and malign their enemies in the profession. It may become another bureaucracy if attempted to be stereotyped and made an appendage of the formal court system. The dangers are infinite and the potentialities are limitless.”
[Courtesy: Lok Adalats in India, authored by Sunil Deshta, published by Deep and Deep Publications 1995 Edition.]
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The Hon’ble Supreme Court in the case of STATE OF PUNJAB & ANOTHER VS. JALOUR SINGH & OTHERS reported in (2008) 2 SCC 660 were pleased to observe at Paragraph Nos.8 & 9 as follows: “8. It is evident from the said provisions that Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok Adalats are guided by principles of justice, equity, fair play. When the LSA Act refers to 'determination' by the Lok Adalat and 'award' by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non- adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The 'award' of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat. 9. But we find that many sitting or retired Judges, while participating in Lok Adalats as members, tend to conduct Lok Adalats like courts, by hearing parties, and imposing their views as to what is just and equitable, on the parties. Sometimes they get carried away and proceed
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to pass orders on merits, as in this case, even though there is no consensus or settlement. Such acts, instead of fostering alternative dispute resolution through Lok Adalats, will drive the litigants away from the Lok Adalats. The Lok Adalats should resist their temptation to play the part of Judges and constantly strive to function as conciliators. The endeavour and effort of the Lok Adalats should be to guide and persuade the parties, with reference to principles of justice, equity and fair play to compromise and settle the dispute by explaining the pros and cons, strength and weaknesses, advantages and disadvantages of their respective claims.”
Certain observations regarding Lok Adalath in the background of the case, as discussed above the Court opines and imperative to observe certain aspects on the institution of Lok Adalat and necessary directions are liable to be issued which are as follows:
The Legal Service Authorities Act, 1987 is enacted to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not to be denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalat to secure that operation of the legal system promotes justice on the basis of equal opportunity.
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The discussion in the present case is only confined to organize Lok Adalat and not permanent Lok Adalat. It secures operation of legal system to promote justice. Section 2(d) Legal Services Authority Act stipulates as follows:
“Section 2(d) ‘Lok Adalat’ means a Lok Adalat organized under chapter VI.”
Under Chapter-VI, section 19 stipulates organization of Lok Adalats. Section 20 enshrines cognizance of cases by Lok Adalats. Section 21 says ‘award of Lok Adalats’. Section 22 stipulats powers of Lok Adalat and Permanent Lok Adalat.
Organization of Lok Adalat is as such intervals and places and for exercising such jurisdiction for the areas. Sub-section (5) of Section 19 of Legal Services Authority Act which stipulates as follows: “(5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of—
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(i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any Court for which the Lok Adalat is organised: Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law.”
Therefore, Lok Adalat is to determine and to arrive at compromise of the dispute in respect of any case pending before it or pre litigation of it by conciliation. Therefore, it is function of Lok Adalat to determine and to arrive at a compromise or settlement between the parties in respect of dispute by holding negotiations and conciliations. The Lok Adalats shall not decide any case which do not have any element for negotiations/ conciliation. If compromise petition is filed by invoking the provision of Order 23 of the Code of Civil Procedure and if the parties are present at the time of submitting the compromise petition and stated they have compromised the matter then the matter shall not be referred to Lok
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Adalat since, the matter is already settled between the parties and reduced into writing in the compromise petition. Therefore, where already the matter is settled/compromised between the parties and reduced into writing in compromise petition, then the Court itself shall pass an appropriate order without referring to the Lok Adalat, on the compromise petition.
If parties have agreed or one of the parties thereof makes an application to the Court for referring the case to Lok Adalat and if the Court is prima facie satisfied that there are chances of such settlement or the Court is satisfied that the matter is an appropriate one, cognizance of which is to be taken by Lok Adalat, the Court shall refer the case to Lok Adalat. But, where one of the parties only makes an application to refer the case to Lok Adalat or the Court is satisfied that the matter is fit to be referred to Lok Adalat, but before referring to Lok Adalat the Court shall give reasonable opportunities of being heard to the parties or to the Advocates.
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The Lok Adalat shall have no jurisdiction in respect of any case or a matter relating to of which is not compoundable under any law.
The Lok Adalat shall not take up the case or matter pertaining to grant of divorce or annulment of marriage. It is task of the Lok Adalat to make endeavour to unite husband and wife by negotiation/conciliation but shall not pass decree of divorce or annulment of marriage.
The Lok Adalat shall pass decree after referring the case to it referred by the Court as expeditious as possible by fixing dates of Lok Adalat of its convenient dates and places of convenience by holding negotiations/conciliation not later than three months from date of referring the case by the Courts and receipt of the matter by the office of the Legal Services Authority at Taluk, District and at the office of the High Court Legal Service Committee.
If there is no settlement and compromise arrived at in the Lok Adalat between the parties, the
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records of the case shall be returned to the court with an advice to the parties to seek remedy in Court after referring the case to Court. The Court without being influenced what has transpired in Lok Adalat, the Court shall decide the case on merits in accordance with law.
The Lok Adalat shall ensure itself there should not be any fraud, coercion, undue influence, threat or any other mode of impersonation of the parties at the time of negotiations/conciliation in the process of compromise.
The Lok Adalat after referring the cases from the Court, may hold pre conciliation meetings between the parties in the presence of advocates. The object of holding pre conciliation meetings is to save time of Lok Adaklat process. During pre conciliation meetings assistance may be taken of by the law interns, social activities, advocates and may by following modalities: (A) Presentation and registration of case. (B) Issuance of invitation letters to the opposite parties for attending the session of Lok Adalat
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along with witness and friends on a specific date for the settlement of disputes. (C) Starting of the hearing process. (D) The summation of disputes matter. (E) Nomination of the any person for negotiation. (F) Deliberation by parties, advocates, social activities in the case on hand and the proclamation of the out come of compromise. (G) Approval of the compromise by Lok Adalat. (H) Preparation of the Decrees/Award.
THE PROCEDURE FOLLOWED BY LOK ADALAT MAY BE SUMMED UP AS FOLLOWS: 1. The Lok Adalat, at first instance calls both the parties to the disputes for the presentation of their case before it. 2. It asks for elucidation on the points of disputes and afford opportunities for both the parties to explain their view points of the disputes. 3. The members of the Lok Adalat endeavours to provide guidelines for both the parties for arriving at truth of the matter. 4. The Lok Adalat provides even a solution with regard to resolution of dispute in case of any difficulty faced by them in the decision-making process. 5. A Kararkhat is finally drawn on the basis of the pre consent of the parties and the signed by the both
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parties in the presence of the members of the Lok Adalats. 6. The Lok Adalats take initiative to acquaint the regular Court with the resolution of dispute and request for the execution of agreement arrived at between the parties. 7. Finally, the Lok Adalat request the Court to withdraw the case of the party on the lines agreed to by both the parties before the Lok Adalat.
Before the Lok Adalat the parties shall produce their identity by producing Aadhar Card, PAN Card, Voter identity Card or any other document for the purpose of identification of the parties. 64. In the case of minors and the parties want to get compromise also on behalf of minors, the Lok Adalat shall not pass decree/award unless there is judicial order from the Court as per Order 32 of Code of Civil Procedure of permission or by any other law. The Lok Adalat also shall not pass order on application for condonation of delay. It is the function of the Court to consider
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application under the provisions of the Limitation Act for condonation of delay, but not by the lok Adalat. 65. The Lok Adalat shall not keep pending the matter for negotiation/conciliation for more than three months, if matter/case is not settled or compromised within the period of three months, then the case records shall be returned to the Court. 66. The Lok Adalat while conducting negotiation/conciliations shall ensure fair play, principle of natural justice, equity and to ensure providing justice to the parties.
The Lok Adalat shall not pass exparte decree/award. 68. Therefore, for the aforesaid discussion and reasons, I answer points for consideration Nos.1 to 4 in the Affirmative. 69. Therefore, for the aforesaid discussions and reasons, the judgment and decree passed by the trial
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court is liable to be set aside. Accordingly, it is set aside by decreeing the suit as prayed for by the plaintiff. 70. Hence, I proceed to pass the following: ORDER i. The Regular First Appeal is allowed. ii. The judgment and decree dated 04.03.2015 passed in O.S.No.227/2012 by the II Additional Senior Civil Judge, Hubballi, is hereby set aside. iii. The suit filed by the plaintiff is decreed. iv. The compromise decree dated 24.01.2004 passed in O.S.No.66/2003 by the Lok Adalat, on the file Civil Judge, Navalagund is not binding on the plaintiffs. v. The plaintiffs are entitled for partition and separate possession of 1/4th share in the suit schedule properties. vi. No order as to costs. vii. Draw decree accordingly.
Let the copy of this order be provided to the Registrar General, High Court of Karnataka, Bengaluru, Member Secretary, Karnataka Legal service Authority,
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Bengaluru and the Director, Karnataka Judicial Academy, Bengaluru. The Registrar General is directed to circulate this order through E-mail to all the Judicial Officers in the State through respective Prl. District & Sessions Judges in the District.
Sd/- JUDGE CT: ANB. DR/SRA.