KRISHNA GAJANANA VEDESHWAR Vs. NARAYAN GAJANAN VEDESHWAR

JUDGEMENT

(1.) THIS is one more case reflecting the slow movement of wheels of justice in Civil Courts. The suit of 1954 ended in a decree and execution of 1971 ended in compromise. Compromise is challenged by subsequent suits before Trial Court as well as Appellate Court and ultimately in this Court.

(2.) THE defendants/appellants are before me challenging the order of the learned Trial Judge passed in O. S. No. 7 of 1992 and O. S. No. 5 of 1993 confirmed in Appeal Nos. R. A. Nos. 87 of 2002 and 6 of 1998, dated 19-12-2002 and 28-2-1998 respectively. Parties would be referred to as per their ranking before the Trial Court.

(3.) FACTS are as under: plaintiff Ganesh Subray Bhat filed a suit seeking for injunction restraining the defendant/appellants from interfering with the alleged act of performing pooja in the temples of Shree Mahaganapati and Shree mahabaleshwar at Gokarn. One Sri Subbaraya Appu Bhat uncle of 1st respondent-Ganesh Subraya Bhat filed a suit in O. S. No. 238 of 1954 on the file of the Munsiff at Honnavar for partition and separate possession. In the said suit, no right whatsoever in respect of pooja was asked for by Subbaraya Appu Bhat. There was a settlement between subbaraya Appu Bhat Vedeshwar i. e. , the mother and other brothers in 1952 itself Subbaraya Appu Bhat gave up the pooja rights in respect of the alleged two temples. Suit was only for partition of immovable properties. Suit was decreed. No final decree was drawn. Execution petition was filed by Subbaraya Appu Bhat in case No. 35 of 1971. During the pendency of the petition, a Commissioner was appointed to inspect the house property. He found that the house property was a single residential unit and it could not be divided in 3 portions for beneficial enjoyment of shares. Compromise was arrived at between some parties and Subbaraya Appu Bhat on 30-10-1991. Appellants have not signed the petition. Compromise was accepted. A decree was passed. Appellants 1 to 5/defendants filed a separate suit in O. S. No. 5 of 1993 challenging the said compromise decree. They sought for injunction. During the pendency of the execution petition Subbaraya Appu Bhat died. 1st respondent came on record. 1st respondent according to appellants/defendants filed a suit in O. S. No. 5 of 1993 for injunction as a counter blast to the suit filed by the appellants in O. S. No. 7 of 1992 in the matter of pooja rights. Suit was contested. Suit was decreed and an unsuccessful appeal was filed. Defendants/appellants are before me challenging the concurrent findings in the case on hand. R. S. A. No. 380 of 2003 is again filed by Krishna Gajanana vedeshwar, Vishnu Gajanana Vedeshwar, Chintamani Gajanana vedeshwar-appellants 1, 3 and 5 (in R. S. A. No. 903 of 2003) challenging the judgment and decree passed in O. S. No. 7 of 1992 by the Civil Judge (Junior Division), Kumta and the appellate order dated 19-12-2002 passed in R. A. No. 87 of 2002. Facts in R. S. A. No. 380 of 2003 are as under: appellants in this appeal are plaintiffs. One Subbaraya Appu Bhat father of respondent 7 (a) and uncle of respondent 7 (b) filed a suit in O. S. No. 238 of 1954 on the file of Munsiff, Honnavar, for partition and separate possession of properties including house property situate in gokarna. Suit was decreed. The predecessors of the appellant filed Civil appeal No. 181 of 1957 unsuccessfully. Subbaraya Appu Bhat filed execution in E. P. No. 35 of 1971. A Commissioner was appointed to inspect the house property. He found that the property was a single residential unit and it could not be divided in 3 portions. A compromise petition was filed on 30-10-1991 in the execution petition filed on behalf of Subbaraya Appu Bhat and signed by Advocate for respondents 1, 3 to 6 and also signed by Subbaraya Appu Bhat. Compromise was accepted. Subbaraya Appu Bhat died thereafter. Respondents 7 (a) and (b) were brought on record as L. Rs. Papers were sent to Deputy Commissioner for effecting partition. Appellants according to the appeal averments are not aware of the compromise petition. They therefore, filed a suit in O. S. No. 7 of 1992 for setting aside the compromise decree on the ground that the said compromise and decree is the outcome of fraud played on the appellants and behind their back. Trial Court dismissed the suit. Unsuccessful appeal was filed in R. A. No. 87 of 2002. Appellants/plaintiffs are before me challenging the concurrent findings of the Court below. R. 3. A. No. 380 of 2003 was posted before this Court on 4-12-2003 and 12-12-2003. On 12-12-2003 this Court directed the office to post for admission R. S. A. No. 380 of 2003. R. S. A. No. 903 of 2003 was listed on 9-1-2003. On that day, this Court directed the said R. S. A. to be listed along with R. S. A. No. 380 of 2003. This is how both these appeals are posted together for hearing.