K S VENKATESH Vs. N G LAKSHMINARAYANA

JUDGEMENT

(1.) THIS is a plaintiffs second appeal against a concurrent finding recorded by the Courts below that the suit schedule property is not a joint family property. Therefore, the plaintiff has no right to challenge a compromise decree passed by the High Court.

(2.) THE facts as set out in the plaint are as under: the land bearing Sy. Nos. 57, 63 and 2 of Narasipura Village, anandapura Hobli, Sagar Taluk, measuring 1 acre 3 guntas, 29 guntas and 11 guntas was purchased by the second defendant, the plaintiffs father under a registered sale deed dated 2-11-1955 for valuable consieration out of the joint family funds. The said sale deed was executed by Sri Govindappa Hegde and his son N. G. Mahabalagiri and the first defendant. The first defendant was a minor running 16 years on the date of the sale. The said sale deed was executed for the benefit of the family. At the time of purchasing the said lands, it was in hopeless condition and the vendors of the second defendant could not manage the said property as such the sale took place in favour of the secodn defendant. After purchasing the said land the said lands have been improved by investing fabulous amount out of the joint family funds to the tune of more than a lakh. Now all the above said lands have been improved and arecanuttrees have been raised and they are yielding.

(3.) IT is further stated in the plaint that the first defendant filed suit o. S. No. 454/67 on the file of the Munsiff, Sagar, seeking a declaration to set aside the sale to an extent of his 1/3rd share. After contest the suit came to be dismised on 31 -7-1970. He preferred an appeal in r. A. 93/70 on the file of the Civil Judge, Shimoga. After contest on 20-3-1972 the appeal was allowed and the suit was decreed. The second defendant preferred a second appeal in R. S. A. 707/72 before this Court. On 3-4-1978 a compromise was entered into in the second appeal. In terms of the cmpromise land bearing No. 57 of Narasipura measuing 1. 03 acres was given to the first defendant by way of his share which is admittedly in excess of the suit claim. Even if the suit has been decreed, the first defendant would not have been entitled to the said extent of land. It is stated that the suit itself was not maintainable because the sale proceeds derived out of the said lands have been utilised and employed for the development of the first defendant father's business and also for the education of the first defendant. It was not a joint family property of the first defendant. It was a self acquired property of his father. Plaintiff came to know that on account of the careless management of the suit by the second defendant it ended in failure. He has yielded to the first defendant who is his close relative. The second defendant had no power or authority to enter into such a compromise. The said compromise is not for legal necessity or benefit of the plaintiff. Even otherwise the compromise is not in accordance with the provisions of the Code of Civil Procedure. Now the first defendant is trying to execute the said decree in Ex. No. 168/78. Therefore, on coming to know of the same, the plaintiff filed the present suit for declaration that the compromise decree said to have been entered into between the second defendant and the first defendant in r. S. A. No. 707/72 on the file of the High Court of Karnataka is null and void and unenforceable and not binding on the plaintiff and for a consequential permanent injunction restraining the first defendant, his men and representative, etc. from executing the compromise decree and for reliefs. The suit is filed on 22-5-1989.