GANAPATI VENKATRAMAN BHAT Vs. SHAMBU VENKATRAMAN BHAT

JUDGEMENT

(1.) SRI Ganapati Venkataman Bhat is the appellant in both these appeals filed u/s. 100 of CPC challenging the judgment and decree passed in O.S. No. 61/1989 and O.S. No. 70/96 respectively. Both these suits were pending on the file of the Civil Judge (Jr. Dn.) & JMFC, Bhatkal. The appellant was the plaintiff in O.S. No. 61/1989 and defendant in O.S. No. 70/1996. Shambu Venkatramana Bhatta was the defendant in O.S. No. 61/1989, a suit filed by this appellant and plaintiff in O.S. No. 70/1996 against him. Both the suits had been clubbed to record common evidence and to dispose of the same by a common judgment. After recording common evidence, O.S. No. 61/1989 filed by this appellant as the plaintiff, has been dismissed and that the suit filed by Shambu Venkatramana Bhatta has been decreed. Suit filed by this appellant in O.S. No. 61/1989 was for the relief of declaration to the effect that the exchange deed executed between himself and the defendant on 07.12.1987 vide Ex. D. 1 is null and void and does not bind him and for the consequential relief of possession. Whereas the suit filed in O.S. No. 70/1996 was for the relief of injunction against this appellant in respect of the same properties. As already discussed, suit O.S. No. 70/1996 is dismissed, as such, R.S.A. No. 5107/2009 has arisen out of the judgment passed in O.S. No. 61/1989 and connected R.S.A. No. 5108/2009 has arisen out of O.S. No. 70/1996. Since the parties and the schedule in both the suits are identical and the suits had been disposed of by a common judgment, both these appeals are taken up together for common discussion. The facts leading to filing of suit in O.S. No. 61/1989 by this appellant as plaintiff before the Court of Civil Judge (Jr. Dn.) & JMFC, Bhatkal is as follows:

(2.) PERUSED the impugned judgments. The fact that there was a partition between the plaintiff and defendant in the year 1982 through a registered partition deed is not in dispute. What is disputed is the binding nature of the exchange deed dated 07.12.1987 entered into between the plaintiff and the defendant. According to the plaintiff, this exchange deed was executed by him under duress and coercion because of the force exercised on him by the defendant and his henchmen. According to the plaintiff, 1 acre 23 guntas of one land out of the total area of land in sy. No. 17/2 was given to the defendant along with 14 guntas of garden land. The defendant was expected to hand over 2 -12 acres in sy. No. 18/2. According to him, a mistake had crept in the said deed and the property handed over by the defendant to the plaintiff is said to have fallen to the share of Sri. Rama Venkatraman Bhat, who is the another brother of the parties. According to the defendant, 1 acre 23 guntas of land was to be given to him in exchange of land in Sy. No. 18/2 measuring 2 acres 12 guntas. According to the plaintiff, it is not possible to follow the covenants of the exchange deed more particularly the exchange deed being executed without any consideration.

(3.) LEARNED counsel for the appellant has vehemently argued that Ganapathi Venkatraman Bhat has been directed to pay Rs. 24,600/ - as damages to his brother Shambu Venkatramana Bhatt vide judgment dated 31.07.2000. In the appeals filed u/s. 96 of CPC in R.A. No. 307/2001 and 308/2001 the judgment of the trial Court is upheld and the order insofar as it relates to the payment of damages of Rs. 24,600/ - has been set aside. Virtually, judgment and decree of the trial Court has been upheld by the first appellate Court. It is these concurrent findings which are called in question on various grounds as set out in the appeal memo.