GANGALLA VENKATAIAH Vs. GANGALLA YAKAIAH

JUDGEMENT

(1.) 1st respondent filed IA No.521 of 2001 on the file of the Court of Senior Civil Judge, Mahaboobabad in OS No.100 of 1988 on the file of the Court of Principal Subordinate Judge, Warangal, for the following reliefs:

(2.) 2nd respondent is the wife, and respondents 3 to 5 are the daughters, respondents 6 and 7 are the sons of revision petitioner and 2nd respondent. 1st respondent 'filed OS No. 100 of 1998 in the Court of the Principal Subordinate Judge, Warangal against the petitioner and respondents 2 to 7 and his sisters seeking partition of the properties specified in the Plaint 'A' and 'B' schedules appended to the plaint, which includes the Annapurna Commercial Complex where the two shop Nos.6-3-99/ 18 and 6-3-99/19, which are directed to be delivered possession of the 1st respondent by the order under revision, alleging that those properties are the joint family properties of himself and revision petitioner who is his elder brother, and that those properties were purchased from income derived from the business that was carried on with the joint family funds and the funds realised by selling the gold ornaments of his mother, in various names, in the names of the female members of the family, though in fact all the businesses were joint family businesses. Revision petitioner filed his written statement contending that all the properties specified in the plaint A and B schedules are his self-acquired properties and that first respondent has no share therein. Other defendants in the suit adopted the said written statement. The trial Court dismissed the suit holding the properties specified in plaint A and B schedules are not the joint family properties and so first respondent has no share in them. Aggrieved by the dismissal of his suit, 1st respondent preferred an appeal in AS No. 1721 of 1989 before this Court. During the pendency of the said appeal, parties to the appeal entered into a compromise. Revision petitioner and other defendants in the suit, who are the respondents in AS No. 1721 of 1989, filed CMP No. 11033 of 1995 accompanied by an affidavit sworn to by the revision petitioner swearing to the fact that AS No. 1721 of 1989 was adjusted between him, 1st respondent and others by way of a compromise in writing dated 2.12.1994 which was signed by all the parties, and requested for recording of the said compromise. That CMP came up for hearing before a Division Bench on 11.5.1995 which passed the following order:

(3.) The memorandum of compromise signed by the parties to AS No. 1721 of 1989 reads as under: "Whereas the appellant herein and the 1st respondent herein are brothers. And whereas the appellant herein has filed the suit OS No. 100 of 1988 in the Court of the Principal Subordinate Judge, Warangal; seeking partition of suit schedule properties and for allotment of 1/5th share therein and also for rendition of accounts. And whereas the case of the 1 st respondent herein is that the suit schedule property is his self acquired property and not a joint family property. And whereas the learned Principal Subordinate Judge, Warangal by judgment dated 20.3.1989 dismissed the suit holding that the plaintiff/appellant herein is not entitled to any share in the suit schedule properties and that the 1st defendant/1st respondent herein is not liable to render account. And whereas the appellant herein filed AS No. 1721 of 1989 against the judgment passed by the Principal Subordinate Judge at Warangal in OS No.100 of 1988 in this Hon'ble Court which is pending. And whereas by the intervention of the elders both the parties i.e., the appellant and 1st, 2nd, 6th and 7th respondents herein have compromised the matter and thus the Honourable Court may dispose of the said appeal subject to following terms. 1. The 1st, 2nd, 6th and 7th respondents herein have to pay a sum of Rs.3,25,000/- in three instalments namely Rs.1,00,000/- by 15.12.1995, another Rs.1,00,000/- by 15.12.1996 and the balance of Rs.1,25,000/- by 15.12.1997 to the appellant herein. 2. If a major part of the suit schedule property is sold within three years the entire balance due by that time as per the first clause, has to be paid in lumpsum. 3. Irrespective of the fact whether the property is sold or not the instalments agreed to in the first clause are to be paid accordingly.