SRI. S INDUSHEKHAR S/O LATE SANNA SHARANAPPA vs SRI. S CHANNANAGOUDA S/O LATE SANGANAKAL DODDA SHARANAPPA
- Court
- Karnataka High Court
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R
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 8 DAY OF JULY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 105935 OF 2022 (GM-CPC)
BETWEEN:
SRI. S. INDUSHEKHAR
S/O LATE SANNA SHARANAPPA,
AGE: 66 YEARS, OCC. ADVOCATE,
R/O. MAIN ROAD, PARVATHINAGAR,
BEHIND AXIS BANK, BALLARI-583101.
… PETITIONER
(BY SRI. SRINAND A. PACHHAPURE, ADVOCATE)
AND:
1. SRI. S. CHANNANAGOUDA
S/O LATE SANGANAKAL DODDA SHARANAPPA,
AGE ABOUT 73 YEARS, OCC. AGRICULTURIST,
R/O. MRUTHYUNJAYA KRUPA,
S.B. VEERANAGOUDA COLONY,
BALLARI-583101.
2. SRI. S. RAJENDRA PRASAD
S/O LATE SANGANAKAL DODDA SHARANAPPA,
AGE: 68 YEARS, OCC: AGRICULTURIST,
R/O: MAIN ROAD, PARVATHINAGAR,
BEHIND GANESH PETROL BUNK,
BALLARI-583101.
3.
Digitally signed
by
MOHANKUMAR
B SHELAR
Location: HIGH
COURT OF
KARNATAKA
SRI. S. NARENDRANATH,
SINCE DECEASED BY HIS L.R.,
SMT. NEELAMBIKA W/O LATE S. NARENDRANATH,
AGE: 63 YEARS, OCC: HOUSE WIFE,
R/O: PARVATHI NAGAR,
BALLARI-5832101.
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SMT. DAKSHAYINI DEVI DESHMUKH
D/O LATE SANGANAKAL DODDA SHARANAPPA
W/O HOSURU CHANDRASHEKAR REDDY DESHMUKH,
SINCE DECEASED BY HER LR’S.,
4A. SRI. RAJASHEKAR DESHMUKH
S/O HOSURU CHANDRASHEKAR REDDY DESHMUKH,
AGE: MAJOR, OCC. AGRICULTURE,
R/O. HOSUR, TQ. CHITAPUR,
DIST. KALBURGI-585211.
4B. SMT. TEJASWINI
D/O HOSURU CHANDRASHEKAR REDDY DESHMUKH,
AGE: MAJOR, OCC. HOUSEHOLD WORK,
R/O. HOSUR, TQ. CHITAPUR,
DIST. KALBURGI-585211.
4C. SMT. SAROJA
D/O HOSURU CHANDRASHEKAR REDDY DESHMUKH,
AGE: MAJOR, OCC. HOUSEHOLD WORK,
R/O. HOSUR, TQ. CHITAPUR,
DIST. KALBURGI-585211.
4D. SMT. VIJAYALAKSHMI
D/O HOSURU CHANDRASHEKAR REDDY DESHMUKH,
AGE: MAJOR, OCC. HOUSEHOLD WORK,
R/O. HOSUR, TQ. CHITAPUR,
DIST. KALBURGI-585211.
4E. SMT. VIJAYALAKSHMI
D/O HOSURU CHANDRASHEKAR REDDY DESHMUKH,
AGE: MAJOR, OCC. HOUSEHOLD WORK,
R/O. HOSUR, TQ. CHITAPUR,
DIST. KALBURGI-585211.
5. SMT. VISHALAKSHI
D/O LATE SANGANAKAL DODDA SHARANAPPA
W/O LATE SOMASHEKAR S. PATIL,
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
ST
R/O. ASHRAYA, H.NO. 62, 1 MAIN,
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R.H.C.S. LAYOUT, ANNAPOORNESHWARI NAGAR,
ND
NAGARBHAVI, 2 STAGE, BENGALURU-560001.
6. SRI. YERADHAL BASAVARAJ
S/O LATE YERADAL SIDDANAGOUDA,
AGE: 50 YEARS, OCC: AGRICULTURIST,
R/O. YARDIHAL, AMIDAL POST,
TAL: LINGASUGURU-584122,
DIST: RAICHUR.
7. SRI. S. RAJAN @ DR. S. RAJASEKHAR
S/O LATE SANAGANAKAL SANNA SARANAPPA,
AGE: 73 YEARS, OCC: DOCTOR,
R/O: D.NO. 8, MAIN ROAD,
PARVATHINAGAR, BEHIND AXIS BANK,
BALLARI-583101.
8. SRI. S. CHANDRASEKHAR
S/O LATE SANAGANAKAL SANNA SARANAPPA,
AGE: 63 YEARS, OCC: BUSINESS,
R/O: D.NO. 8, MAIN ROAD,
PARVATHINAGAR, BEHIND AXIS BANK,
BALLARI-583101.
… RESPONDENTS
(BY SRI. HARSH DESAI, ADVOCATE FOR R1;
SRI. PRASHANT MATHAPATI, ADVOCATE FOR R2;
SRI. ROSHAN CHABBI, ADVOCATE FOR R8;
NOTICE TO R3, R4(A) TO R4(E), R5, R6 ARE SERVED;
NOTICE TO R7 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE
ORDER DATED 25/11/2022 PASSED BY THE COURT OF PRL.
SENIOR CIVIL JUDGE AND CJM, BALLARI ON AN APPLICATION
FILED UNDER ORDER 23 RULE 3 R/W SECTION 151 OF CPC IN
O.S. NO.39/2008 VIDE ANNEXURE-A AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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ORAL ORDER
(PER: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM)
The petitioner, who is not a party to
O.S.No.39/2008, has presented the instant writ petition
questioning the legality and correctness of the order dated
25.11.2022 passed by the learned Principal Senior Civil
Judge, Ballari, whereby the application filed by the
petitioner under Order XXIII Rule 3 read with Section 151
of the Code of Civil Procedure, 1908, (for short ‘CPC’)
seeking recall of the compromise decree dated
03.07.2018, has been rejected on the ground that the
petitioner is a stranger to the proceedings and, therefore,
his remedy, if any, is only by way of an independent suit.
2. The controversy, though arising out of an
interlocutory order, raises an important question touching
upon the scope and ambit of Order XXIII Rule 3A of CPC,
namely, whether every person who was not a party to a
compromise decree is necessarily required to institute a
separate suit, or whether, in appropriate cases, such
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person is entitled to approach the very Court which
recorded the compromise and seek adjudication of his
grievance by questioning the legality of the compromise
decree itself.
3. Since the controversy turns largely upon the
nature of the petitioner’s claim, the factual background
requires to be noticed in some detail.
The petitioner, Sri S. Indushekhar, is the son of late
Sri Sanna Sharanappa. It is the specific case of the
petitioner that the common ancestor of the family, namely
Sri S.B. Veeranagouda, had acquired several immovable
properties situated in and around Ballari District. During
his lifetime, according to the petitioner, there was an oral
partition between his two sons, namely late Sri Dodda
Sharanappa and late Sri Sanna Sharanappa. Under the
said family arrangement, the agricultural lands situated on
the left side of the Ballari–Sanganakal Road were allotted
to the share of late Sri Sanna Sharanappa, whereas the
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lands situated on the right side of the said road were
allotted to late Sri Dodda Sharanappa. It is asserted that
ever since the said partition, both branches have been
separately cultivating, possessing and enjoying their
respective properties and the corresponding revenue
entries also came to be mutated in accordance with such
partition.
The petitioner further asserts that there was a
subsequent partition within the branch of late Sri Sanna
Sharanappa, pursuant to which the petitioner, his
brothers, mother and other members of that branch have
been enjoying their respective shares separately.
Therefore, according to the petitioner, the branch of late
Sri Sanna Sharanappa had become completely severed
from the branch of late Sri Dodda Sharanappa much prior
to the institution of O.S.No.39/2008.
4. The respondents herein are admittedly the
children and legal representatives belonging to the branch
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of late Sri Dodda Sharanappa. The petitioner and
respondent Nos.1 to 6 are first cousins. The petitioner,
however, contends that despite such relationship, the
properties belonging to the petitioner’s branch were never
available for partition amongst the members of late Sri
Dodda Sharanappa’s family, in view of the earlier
severance in status and the independent partition between
the two branches.
5. Respondent No.1 instituted O.S.No.39/2008
before the competent Civil Court seeking partition and
separate possession of the properties alleged to have been
left behind by late Sri Dodda Sharanappa. The suit was
instituted against the plaintiff’s mother, brothers and
sisters. The petitioner was admittedly not impleaded as a
party to the said proceedings.
6. A careful examination of the pleadings in
O.S.No.39/2008 assumes considerable significance.
Defendant No.1, namely Smt. Hampamma, who is none
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other than the mother of the plaintiff, filed a detailed
written statement disputing several assertions made in the
plaint. In paragraph 4 of the written statement, she
specifically denied the plaintiff’s plea that all the properties
described in the plaint schedule continued to remain joint
family properties. She also disputed the plaintiff’s
assertions relating to the earlier family arrangement and
called upon the plaintiff to strictly prove the same.
7. More importantly, paragraphs 15 to 18 of the
written statement contain categorical admissions which
assume considerable relevance for deciding the
controversy involved in the present writ petition.
Defendant No.1 specifically pleaded that Survey
No.118B/2 measuring 2.02 acres did not belong to late
Dodda Sharanappa; that Survey No.118M/1 measuring
one acre stood in the name of one Smt. Shankaramma;
that Survey No.165/2 belonged to the High Level Canal;
and significantly, that Survey No.166 (part), presently
bearing Survey No.166A measuring 0.84 acre, belonged to
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the present petitioner, Sri S. Indushekhar, who was
described therein as the cousin brother of the plaintiff.
8. Thus, long before the compromise decree came
to be recorded, one of the contesting defendants had
specifically asserted that certain properties included by the
plaintiff did not belong to late Dodda Sharanappa at all
and, insofar as Survey No.166A was concerned, had
unequivocally admitted the ownership of the present
petitioner.
9. The Trial Court initially decreed the suit on
29.06.2012 holding that the plaintiff was entitled to one-
eighth share in the suit schedule properties. The said
judgment and decree were challenged before this Court in
R.F.A.No.4113/2012. During the pendency of the appeal,
defendant No.1 died. This Court remanded the matter to
the Trial Court for fresh adjudication.
10. It is the petitioner’s specific grievance that
instead of adjudicating the rival claims in accordance with
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the remand order, the parties to O.S.No.39/2008 chose to
file a compromise petition under Order XXIII Rule 3 of the
Code. The Trial Court accepted the compromise petition
and passed a compromise decree on 03.07.2018.
11. The petitioner alleges that the compromise
decree was not merely a settlement amongst the parties
to the suit, but also purported to deal with properties
which either belonged to third parties or which had never
formed part of the original subject matter of the suit. It is
specifically asserted that certain additional properties,
which were not originally included in the plaint schedule,
came to be introduced at the stage of compromise and
were distributed amongst the parties to the compromise.
According to the petitioner, one such property is Plot
No.188, which the respondents themselves contend is
being used as a common burial ground for the family,
whereas the petitioner asserts that the same was
purchased by his father late Sri Sanna Sharanappa and
formed part of his exclusive estate.
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12. The petitioner further contends that despite the
specific pleadings in the written statement acknowledging
his ownership over certain properties, and despite the fact
that the compromise purported to affect his proprietary
rights, neither the petitioner nor any member of the
branch of late Sri Sanna Sharanappa was impleaded as a
party to the compromise proceedings or afforded an
opportunity of hearing.
13. It is only upon coming to know of the
compromise decree, according to the petitioner, that he
approached the Trial Court by filing an application under
Order XXIII Rule 3 read with Section 151 of CPC seeking
recall of the compromise decree on the grounds of fraud,
collusion and suppression of material facts. The petitioner
specifically pleaded that the compromise decree had the
effect of clouding his independent title over certain
properties and that the compromise itself deserved to be
recalled and examined by the very Court which had
recorded it.
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14. The application was stoutly opposed by the
contesting respondents. The principal objection raised by
them was that the petitioner was admittedly not a party to
O.S.No.39/2008 and consequently lacked locus to
maintain an application under Order XXIII Rule 3. It was
further contended that if the petitioner claimed
independent title over any property, his remedy was to
institute a comprehensive civil suit seeking declaration of
title and consequential reliefs and not to question the
compromise decree in proceedings to which he was never
a party.
15. The learned Trial Judge accepted the said
objection and rejected the petitioner’s application by the
impugned order dated 25.11.2022 holding that the
petitioner, being a stranger to the proceedings, could not
invoke Order XXIII Rule 3 of the Code and that he was
required to establish his rights only by instituting an
independent suit.
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16. Assailing the correctness of the said order,
learned Counsel appearing for the petitioner submitted
that the Trial Court has completely misconstrued the scope
of Order XXIII Rule 3 and Rule 3A of CPC. It is contended
that the petitioner is not attempting to avoid the
compromise decree by way of a collateral proceeding but
is, on the contrary, requesting the very Court which
recorded the compromise to examine the legality of the
compromise insofar as it affects properties which,
according to the petitioner, never belonged to the parties
to the suit. Learned Counsel would submit that the
pleadings in the written statement filed by defendant No.1
themselves acknowledge the petitioner’s ownership over
some of the disputed properties and therefore the Trial
Court ought to have examined whether the compromise
decree could have validly dealt with such properties behind
the petitioner’s back. Reliance is placed upon the
judgments of the Hon’ble Supreme Court in Triloki Nath
Singh v. Anirudh Singh (D) through LRs. and
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1
Others , and Shri Mukund Bhavan Trust and Others
v. Srimant Chhatrapati Udayan Raje Pratapsinh
2
Maharaj Bhonsle and Another , as also the judgment of
the Co-ordinate Bench of this Court in Venkatesh
Bandenavar and Others v. Laxmibai W/o. Mansingh
3
@ Mahalingappa Bandenavar @ Uppar .
17. Per contra, learned counsel appearing for the
contesting respondents would contend that the petitioner
admittedly was not a party to O.S.No.39/2008 and,
therefore, has no right to seek recall of the compromise
decree. It is argued that if the petitioner claims an
independent title, such title can be adjudicated only in a
properly constituted civil suit and not in proceedings
arising out of a compromise decree between other parties.
It is further contended that Order XXIII Rule 3A bars any
challenge to a compromise decree except in the manner
known to law and that permitting strangers to maintain
1
AIR 2020 SC 2111
2
Civil Appeal No.14807 of 2024
3
W.P.No.202339 of 2025
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applications questioning compromise decrees would
destroy the finality attached to settlements recorded by
Civil Courts. Learned counsel would therefore submit that
the Trial Court has rightly relegated the petitioner to avail
the remedy of an independent civil suit.
18. Having bestowed anxious consideration to the
rival submissions and having carefully examined the
pleadings, the material placed on record and the
authorities relied upon by the learned counsel appearing
for the respective parties, this Court is of the view that the
controversy involved in the present writ petition does not
merely concern the maintainability of an application filed
under Order XXIII Rule 3 of CPC. The issue raises a larger
and significant question touching upon the true scope,
ambit and legislative intent underlying Order XXIII Rule 3A
of CPC, particularly in the context of a person who was not
formally a party to the earlier suit but whose proprietary
rights are alleged to have been directly affected by the
compromise decree.
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19. The rival contentions indicate that both parties
seek to draw support from the judgments of the Hon’ble
Supreme Court in Triloki Nath Singh v. Anirudh Singh
(D) through LRs. and Others (supra), and Shri
Mukund Bhavan Trust and Others v. Srimant
Chhatrapati Udayan Raje Pratapsinh Maharaj
Bhonsle and Another (supra), though each seeks to
apply the principles laid down therein to different factual
situations. The judgment of the Co-ordinate Bench of this
Court in Venkatesh Bandenavar and Others v.
Laxmibai W/o. Mansingh @ Mahalingappa
Bandenavar @ Uppar (supra) is also pressed into
service. Therefore, before examining the factual
controversy, it becomes crucial to ascertain the correct
legal position governing the field.
20. In that backdrop, the principal point that arises
for consideration is:
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“(i) Whether the Trial Court was justified in relegating
the petitioner to institute an independent comprehensive suit
on the premise that he was not a party to O.S.No.39/2008.
(ii) whether, having regard to the nature of the
petitioner’s claim and the allegations that the compromise
decree has dealt with properties asserted to belong to his
branch of the family, the petitioner is entitled to seek
adjudication of his grievance before the very Court which
recorded the compromise decree by invoking Order XXIII Rule
3 read with Section 151 of CPC?”
FINDINGS ON POINT NO. (i) & (ii):
21. Before adverting to the rival contentions, it
would be apposite to notice the legislative background in
which Order XXIII Rule 3A came to be incorporated by the
Code of Civil Procedure (Amendment) Act, 1976. Prior to
the amendment, a party dissatisfied with a compromise
decree could institute an independent suit alleging that the
compromise was vitiated by fraud, coercion, undue
influence, misrepresentation or want of authority. Such
collateral proceedings not only resulted in multiplicity of
litigation but also defeated the very object of encouraging
amicable settlement of disputes through lawful
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compromises. To remedy the said mischief and to attach
finality to compromise decrees, Parliament simultaneously
inserted the proviso to Rule 3 empowering the very Court
which recorded the compromise to determine whether a
lawful compromise had, in fact, been arrived at,
incorporated Rule 3A expressly barring a separate suit to
set aside a compromise decree on the ground that the
compromise was not lawful, and omitted Order XLIII Rule
1(m), which earlier provided an appeal against an order
recording a compromise. The legislative intent is,
therefore, manifest that every challenge to the validity or
lawfulness of a compromise decree should ordinarily be
examined by the very Court which recorded the
compromise, thereby avoiding multiplicity of proceedings
and preserving the sanctity and finality attached to judicial
settlements.
22. The ambit of the amended provisions first came
to be authoritatively explained by the Hon’ble Supreme
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4
Court in Banwari Lal v. Chando Devi . The Hon’ble Apex
Court held that, after the 1976 amendment, the Court
which records the compromise retains the jurisdiction to
examine whether a lawful compromise was in fact entered
into and that a separate suit challenging the compromise
is expressly barred by Rule 3A. The Hon’ble Apex Court
emphasized that the object of the amendment is to ensure
that the legality of the compromise is examined by the
same Court which recorded it and not in independent
collateral proceedings.
23. The said principle was reiterated and further
explained by the Hon’ble Supreme Court in Pushpa Devi
5
Bhagat v. Rajinder Singh , wherein it was held that in
view of the statutory scheme introduced by the 1976
amendment, neither an independent suit nor an appeal
questioning the compromise decree is maintainable. The
Hon’ble Supreme Court clarified that the exclusive remedy
of a person aggrieved by the recording of a compromise is
4
(1993) 1 SCC 581
5
AIR 2006 SC 2628
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to approach the very Court which recorded the
compromise and invite its decision on the legality or
otherwise of the compromise.
24. In Triloki Nath Singh v. Anirudh Singh
(supra), the Hon’ble Supreme Court had occasion to
consider the case of a person who was not formally a party
to the compromise proceedings but was admittedly tracing
his title through one of the parties to the compromise
decree. The Hon’ble Apex Court held that where the
plaintiff derives his title through a party to the compromise
decree and seeks to impeach the compromise entered into
by his predecessor-in-title, such a person cannot maintain
an independent suit. Since his claim is derivative and
inseparably connected with the rights of a party to the
compromise, his remedy lies before the very Court which
recorded the compromise decree. The judgment thus
emphasises that the applicability of Rule 3A depends not
merely upon whether a person was formally a party to the
suit but upon the nature of the right asserted.
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25. The Hon’ble Supreme Court in Shri Mukund
Bhavan Trust (supra) has once again reiterated the
principle that Courts are required to look beyond the form
of the pleadings and ascertain the real substance of the
relief sought. The Hon’ble Apex Court cautioned that
statutory bars cannot be circumvented by clever drafting
or by creating an illusory cause of action. Though the
principal issue before the Hon’ble Apex Court arose in the
context of Order VII Rule 11 of CPC, the underlying
principle reiterated is that where the substance of the
action is to unsettle a decree or transaction that has
attained finality, the Court must examine the true nature
of the relief and prevent abuse of judicial process.
26. The common thread running through the
aforesaid decisions is that the legislative policy underlying
Order XXIII Rule 3A is to prevent collateral challenges to
compromise decrees by persons who are bound by the
compromise or who claim through parties to the
compromise, while simultaneously preserving the
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jurisdiction of the Court which recorded the compromise to
examine its legality. Equally, none of the aforesaid
judgments lays down as an inflexible proposition that
every person who was not a party to the earlier suit must
invariably institute an independent suit irrespective of the
nature of the right asserted by him. The applicability of
Rule 3A necessarily depends upon the source of the
claimant’s right and the true nature of the challenge raised
before the Court.
27. On a cumulative reading of the judgments of
the Hon’ble Supreme Court in Banwari Lal (supra),
Pushpa Devi Bhagat (supra), Triloki Nath Singh
(supra) and Shri Mukund Bhavan Trust (supra), the
following principles unmistakably emerge:
(a) The object of incorporating Rule 3A in Order
XXIII of CPC is to attach finality to compromise decrees
and to prevent multiplicity of proceedings by requiring the
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legality of the compromise to be examined by the very
Court which recorded it.
(b) The embargo contained in Rule 3A is attracted
where the challenge, in substance, is directed against the
lawfulness of the compromise decree and the person
questioning the decree is either a party thereto or claims
through one of the parties to the compromise.
(c) The applicability of Rule 3A does not depend
merely upon whether the person questioning the
compromise was formally arrayed as a party to the earlier
proceedings. The decisive test is the nature and source of
the right asserted.
(d) If the claimant traces his title through a party to
the compromise decree, he merely steps into the shoes of
his predecessor and cannot seek to circumvent the
statutory scheme by instituting an independent suit. His
remedy lies before the very Court which recorded the
compromise decree.
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(e) Conversely, where a person asserts an
independent and pre-existing title, wholly dehors the
parties to the compromise and not derived through either
of them, his independent civil rights cannot be adjudicated
in proceedings arising out of the compromise decree. Such
a person cannot be deprived of his ordinary civil remedy
merely because the parties to the suit have chosen to
settle their inter se disputes.
28. The position is materially different where the
plaintiff asserts an independent and pre-existing title.
Examples include: A person claiming ownership
independently of both parties to the compromise; a co-
owner who was never represented in the earlier litigation;
a person asserting title under an entirely different source;
a person whose rights neither arise from nor depend upon
either party to the compromise. Such a plaintiff does not
seek to impeach the compromise as representing his own
rights. His grievance is different. His case is: “Irrespective
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of your compromise, I have an independent title which
was never adjudicated.”
29. In such cases, the compromise decree is only
an evidentiary circumstance; the plaintiff is not obliged to
seek recall of the compromise; his title cannot be
adjudicated in proceedings to which he was never a party;
the Court which recorded the compromise cannot enlarge
the scope of that decree by deciding independent
proprietary rights of non-parties. Therefore, Rule 3A does
not bar such a suit.
30. This flows from the well-settled principle that a
decree binds only the parties and persons claiming under
them, and not persons asserting independent adverse
title.
31. The distinction is therefore not between “party”
and “stranger”. The distinction is between:
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A. Derivative stranger (Rule 3A applies)
A stranger who claims either through a plaintiff,
a defendant, a legal representative, an assignor, a
vendor or a predecessor-in-title who was a party to
the compromise. Since his title is entirely derivative,
he cannot avoid the statutory procedure. His remedy
lies before the Court which recorded the
compromise. This is the category exemplified by
Triloki Nath Singh (Supra) .
B. Independent stranger (Rule 3A does not
apply)
A stranger who says:
“Neither plaintiff nor defendant is my
predecessor. I do not claim through either of them.
My title is independent. My rights existed irrespective
of their compromise.”
32. Such a plaintiff is not attempting to set aside
the compromise as between the parties. Rather, he seeks
adjudication of his own independent civil rights. Rule 3A
was never intended to extinguish such substantive rights.
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33. To illustrate, if ‘A’ and ‘B’ litigate over a
property and subsequently enter into a compromise, and
thereafter ‘C’, who purchased the property from ‘A’ prior to
the compromise, questions the validity of the compromise
affecting his derivative interest, ‘C’ would be bound to
approach the very Court which recorded the compromise,
since his claim is entirely traceable to ‘A’. However, if ‘D’
asserts that the property covered by the compromise was
never the property of either ‘A’ or ‘B’ but exclusively
belonged to him under an independent source of title, his
grievance is not founded upon the compromise but upon
his own independent proprietary right. In such a case,
Rule 3A would not ipso facto bar the maintainability of an
independent suit. Thus, the distinction is not between a
“party” and a “stranger”, but between a derivative
claimant and an independent claimant.
34. Therefore, the true test is whether the
challenge to the compromise decree is derivative of the
rights of one of the parties to the compromise or whether
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it emanates from an independent source altogether. The
answer to this question determines the forum and the
remedy available to the aggrieved person.
Application to the Present Case:
35. Applying the aforesaid principles to the facts of
the present case, this Court finds that the learned Trial
Judge has proceeded on an erroneous premise that since
the petitioner was not a party to O.S.No.39/2008, he
necessarily has to institute an independent suit. Such an
approach overlooks the peculiar facts borne out from the
pleadings in the original suit.
36. Before examining the rival contentions, it would
be necessary to advert to the Family Tree and pleadings in
O.S. No.39/2008.
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37. It would be necessary to advert to pleadings in
written statement filed by Defendant No.1 in
O.S.No.39/2008 only to limited extent to test the order
impugned relating to relegating the petitioner to file an
independent comprehensive suit. Paras 15 to 18 of the
written statement are relevant and same are extracted as
under:
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"15. The land bearing Survey No.118B/2 measuring 2.02
acres of Sanganakal is not belonging to late Sri S. Dodda
Sharanappa.
16. Similarly, the land bearing Survey No.118M/1
measuring 1.00 acre of Sanganakal is not belonging to late
Sri S. Dodda Sharanappa and it is standing in the name of
Smt. Shankaramma W/o. Sri M. Keshava Reddy.
17. The land bearing Survey No.165/2 measuring 2.55
acres of Sanganakal is not belonging to late Sri S. Dodda
Sharanappa and it belongs to High Level Canal.
18. The land bearing Survey No.166 (part), which is now
numbered as No.166A measuring 0.84 acre of Sanganakal is
not belonging to late Sri S. Dodda Sharanappa and it belongs
to Sri S. Indu Shekar S/o. Late Sri S. Sanna Sharanappa,
Advocate, Bellary, who is cousin brother of the Plaintiff."
(emphasis supplied)
38. A careful examination of the written statement
filed by defendant No.1, more particularly paragraphs 15
to 18, assumes considerable significance. Defendant No.1
has categorically pleaded that Survey Nos.118B/2,
118M/1, 165/2 and Survey No.166 (part), presently
numbered as Survey No.166A, did not belong to late Sri
Dodda Sharanappa. Insofar as Survey No.166A is
concerned, there is a specific and unequivocal admission
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that the said property belongs to the present petitioner,
Sri S. Indushekhar, who is described therein as the cousin
brother of the plaintiff. Equally significant are the
pleadings contained in paragraph 4 of the written
statement, wherein defendant No.1 has denied the
plaintiff’s assertion regarding the earlier partition and has
disputed the very nature and extent of the properties said
to have fallen to the share of late Dodda Sharanappa.
Thus, the pleadings themselves disclose that there was a
serious dispute even amongst the parties to the suit
regarding the identity of the joint family properties.
39. The petitioner’s specific case is that the
common ancestor, Sri S.B. Veeranagouda, had effected an
oral partition between his two sons, namely Dodda
Sharanappa and Sanna Sharanappa, whereunder the lands
situated on the left side of the Ballari–Sanganakal Road
were allotted to the branch of Sanna Sharanappa, whereas
the lands situated on the right side fell to the share of
Dodda Sharanappa. It is further asserted that there was a
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subsequent partition within the branch of Sanna
Sharanappa and that the petitioner has been in exclusive
possession and enjoyment of the properties allotted to his
share. The petitioner therefore asserts an independent
claim over the properties alleged to have been included in
the compromise decree, contending that they constitute
the self-acquired or separately allotted properties of his
branch and never formed part of the joint family
properties of Dodda Sharanappa.
40. The records further reveal that O.S.No.39/2008
was originally decreed on 29.06.2012 and that the decree
was carried in appeal in R.F.A.No.4113/2012. During the
pendency of the proceedings, the matter was remanded to
the Trial Court. However, instead of adjudicating the
issues in terms of the remand order, the parties to the suit
filed a compromise petition under Order XXIII Rule 3 of
the Code, which culminated in the compromise decree
dated 03.07.2018. Significantly, the compromise decree
includes certain properties which were admittedly not part
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of the original subject matter of the suit. The petitioner,
though specifically referred to in the pleadings of
defendant No.1 as the owner of some of those properties,
was neither impleaded as a party nor afforded an
opportunity of contest before the compromise decree
came to be passed.
41. On a careful examination of the pleadings and
the material placed on record, this Court finds that the
controversy is not confined merely to an allegation of
fraud in obtaining the compromise decree. The dispute
travels much beyond that. The petitioner asserts that
there had already been a severance between the branch of
Dodda Sharanappa and the branch of Sanna Sharanappa;
that certain properties incorporated in the compromise
decree exclusively belong to the branch of Sanna
Sharanappa; and that one of the properties introduced at
the stage of compromise was, in fact, the self-acquired
property of the petitioner’s father. These assertions gain
considerable significance in the light of the categorical
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admissions contained in the written statement of
defendant No.1 acknowledging that some of the properties
included in the compromise did not belong to late Dodda
Sharanappa and that Survey No.166A belonged to the
present petitioner. The question as to whether the
branches had already become divided, whether the
disputed properties formed part of the joint family estate,
whether some of the properties were the exclusive
properties of the petitioner’s branch, and whether
additional properties were impermissibly brought within
the fold of the compromise decree, are all questions which
are inextricably interlinked and arise directly out of the
proceedings in O.S. No.39/2008.
42. It is in the aforesaid factual background that
the principles laid down by the Hon’ble Supreme Court in
Triloki Nath Singh (supra) and Shri Mukund Bhavan
Trus t (supra) assume significance. Those decisions
reiterate that where a person claims through a party to
the compromise or where the challenge is intrinsically
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directed against the compromise decree itself, the proper
remedy ordinarily lies before the very Court which
recorded the compromise and not by way of an
independent suit. In the peculiar facts of the present case,
where the pleadings in written statement in the original
suit themselves acknowledge the petitioner’s claim over
certain properties and where additional properties appear
to have been incorporated while recording the
compromise, the petitioner cannot be driven to institute an
independent suit, resulting in parallel adjudications over
the very same subject matter. The legality of the
compromise decree, the inclusion of additional properties
therein, and the petitioner’s claim over such properties
constitute one composite controversy which is required to
be examined by the Court that recorded the compromise.
43. What has, however, escaped the attention of
the learned Trial Judge is the true nature of the
controversy involved in the present case. The learned
Judge has proceeded on the premise that the petitioner,
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not being a party to O.S.No.39/2008, can effectively work
out his remedy by instituting an independent suit seeking
declaration of title. Such an approach, in the considered
opinion of this Court, overlooks the legal and factual
complexities surrounding the dispute. The petitioner
cannot effectively seek a declaration of his absolute title
over the disputed properties so long as the compromise
decree dated 03.07.2018 continues to hold the field. The
compromise decree has not merely settled the inter se
rights of the parties to the suit but has also purportedly
dealt with properties over which the petitioner asserts an
independent claim. Unless the legality and validity of the
compromise decree are first examined by the Court which
recorded it, any declaration sought in an independent suit
would inevitably run into the subsisting compromise
decree, giving rise to conflicting adjudications.
44. Had the petitioner’s case been one where he
merely sought a declaration that the compromise decree
passed in O.S. No.39/2008 was not binding upon him,
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without seeking to impeach the compromise itself, the
question of relegating him to an independent suit might
have arisen for consideration. However, the facts of the
present case stand on an entirely different footing. The
dispute is essentially an intra-family dispute between two
branches descending from a common ancestor. The
petitioner’s case is that there had already been a
severance in status between the branch of late Dodda
Sharanappa and the branch of late Sanna Sharanappa;
that specific properties had fallen to the exclusive share of
his branch under an earlier partition; and that certain
properties included in the compromise decree are, in fact,
the self-acquired properties of his father and, therefore,
were never available for partition amongst the members of
the other branch. These assertions go to the very root of
the compromise decree and are inextricably intertwined
with the question whether the properties incorporated
therein were at all amenable to partition between the
parties to O.S.No.39/2008.
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45. The questions relating to the existence or
otherwise of an earlier severance in the family, the true
character of the disputed properties, the plea of self-
acquisition, the inclusion of additional properties while
recording the compromise, and the legality of the
compromise decree itself constitute one composite
controversy. These issues cannot be conveniently or
effectively adjudicated in piecemeal proceedings before
different forums. Any independent suit instituted by the
petitioner without first addressing the subsisting
compromise decree would not only lead to parallel
adjudications but also carry the potential of conflicting
findings on the same set of properties. The ends of justice,
therefore, demand that all these interconnected issues be
examined comprehensively by the very Court which
recorded the compromise decree.
46. In the peculiar facts and circumstances of the
present case, this Court is of the considered view that the
compromise decree dated 03.07.2018 deserves to be
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reopened for examination in proceedings before the Trial
Court by entertaining the petitioner’s challenge. The
petitioner shall be permitted to come on record and
establish his claim in accordance with law. The Trial Court
shall thereafter undertake a comprehensive adjudication
regarding the legality of the compromise, the nature and
character of the disputed properties, the plea of prior
severance between the two branches of the family, the
plea of self-acquisition set up by the petitioner, and all
other issues incidental thereto, after affording adequate
opportunity to all concerned parties. Such a course alone
would subserve the object of avoiding multiplicity of
proceedings and secure a complete and effective
adjudication of the entire controversy.
47. A conjoint reading of the written statement filed
by defendant No.1 in O.S.No.39/2008 and the averments
made by the petitioner in the application filed under Order
XXIII Rule 3 read with Section 151 of CPC gives rise to yet
another substantial issue, namely, whether the partition
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suit itself was bad for non-joinder of necessary parties.
The petitioner has specifically asserted that he represents
the branch of late Sanna Sharanappa and that there had
already been a severance between the two branches, while
defendant No.1 has categorically pleaded that some of the
suit properties did not belong to late Dodda Sharanappa
and that one of the properties belonged to the present
petitioner. These pleadings prima facie indicate that the
rights of persons who were not impleaded in the suit are
likely to be directly affected by the decree.
48. Whether the branch represented by the
petitioner was a necessary party to the partition suit and
whether the compromise decree could have been validly
recorded in its absence are issues which go to the root of
the matter. These questions, coupled with the petitioner’s
plea of prior severance, self-acquisition of certain
properties and inclusion of additional properties in the
compromise decree, constitute one composite controversy
requiring comprehensive adjudication. Therefore, the
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petitioner cannot be relegated to an independent suit, as
such a course would result in parallel proceedings and
possible conflicting findings. The ends of justice require
that all these interconnected issues be adjudicated in
O.S.No.39/2008 itself after permitting the petitioner to
contest the proceedings.
49. Consequently, the impugned order passed by
the learned Trial Judge, rejecting the petitioner’s
application solely on the ground that he is required to
institute an independent suit, suffers from a patent error
of law and warrants interference under Articles 226 and
227 of the Constitution of India. Accordingly, the point for
consideration is answered in the ‘ Negative’ and Point
No.(ii) is answered in the ‘Affirmative’ .
Conclusions:
50. For the reasons recorded hereinabove, this
Court is of the considered view that the learned Trial Judge
has proceeded on an erroneous understanding of the
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scope of Order XXIII Rule 3 and Rule 3A of CPC. The
impugned order proceeds on the simplistic premise that
the petitioner, not being a party to O.S.No.39/2008, can
work out his remedy only by instituting an independent
suit. Such an approach overlooks the true nature of the
controversy and the law governing challenges to
compromise decrees.
51. The legislative object underlying Order XXIII
Rule 3A is to prevent collateral attacks on compromise
decrees and to ensure that the legality of the compromise
is examined by the very Court which recorded it. The
embargo contained in Rule 3A is attracted where the
challenge is derivative of the rights of a party to the
compromise. Conversely, where a person asserts an
independent title, the maintainability of an independent
suit depends upon the nature of the relief sought and the
facts of each case. The decisive test is not whether the
claimant was formally a party to the earlier proceedings,
but whether the adjudication of his claim necessarily
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requires the compromise decree to be reopened and
examined.
52. In the present case, the petitioner has not
merely asserted an independent title over certain
properties. His grievance strikes at the very legality of the
compromise decree on the ground that properties
allegedly belonging to his branch were included in the
compromise, that additional properties were brought
within the compromise though they did not originally form
part of the suit, and that the compromise was recorded
without impleading persons whose rights stood directly
affected. The pleadings of defendant No.1 themselves lend
prima facie support to the petitioner’s assertion that
certain properties did not belong to late Dodda
Sharanappa and that one of the disputed properties
belonged to the petitioner. The petitioner has also raised
substantial questions regarding prior severance between
the two branches of the family, the self-acquired nature of
certain properties and the maintainability of the partition
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suit itself for non-joinder of necessary parties. These
issues are inextricably interlinked and cannot be
adjudicated in isolation.
53. This Court is, therefore, of the opinion that
relegating the petitioner to an independent suit would
neither subserve the object of Order XXIII Rule 3A nor
secure an effective adjudication of the real controversy.
On the contrary, it would result in multiplicity of
proceedings and create the possibility of conflicting judicial
pronouncements in relation to the same properties and the
same compromise decree. The interests of justice require
that the entire controversy be adjudicated
comprehensively in the very proceedings in which the
compromise decree came to be recorded, after permitting
the petitioner to participate in the suit and establish his
claim in accordance with law.
54. The impugned order, therefore, cannot be
sustained and is liable to be set aside. Consequently, the
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compromise decree deserves to be recalled and O.S.
No.39/2008 restored to the file of the Trial Court for fresh
adjudication after impleading the petitioner and affording
opportunity to all concerned parties to establish their
respective rights.
55. For the forgoing reasons, this Court proceeds to
pass the following:
ORDER
(i) The writ petition is allowed ;
(ii) The order dated 25.11.2022 passed by
the learned Principal Senior Civil Judge, Ballari,
in O.S.No.39/2008, rejecting the petitioner’s
application filed under Order XXIII Rule 3 read
with Section 151 of the Code of Civil Procedure,
1908, is hereby set aside;
(iii) Consequently, the compromise decree
dated 03.07.2018 passed in O.S.No.39/2008 is
recalled and the compromise petition filed
under Order XXIII Rule 3 of CPC stands
rejected;
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(iv) O.S.No.39/2008 is restored to the file
of the learned Principal Senior Civil Judge,
Ballari, for fresh adjudication in accordance
with law;
(v) The petitioner shall be impleaded as a
party to O.S. No.39/2008 and shall be
permitted to file his pleadings, produce
documentary evidence and adduce oral
evidence in support of his claim. The existing
parties shall also be at liberty to amend their
pleadings, if so advised, and to lead further
evidence;
(vi) The Trial Court shall frame such
additional issues as may be necessary,
including, but not limited to, the questions
relating to the alleged prior severance between
the two branches of the family, the nature and
character of the suit schedule properties, the
plea of self-acquisition set up by the petitioner,
the legality of inclusion of additional properties
in the compromise proceedings, and all other
questions arising out of the pleadings of the
parties;
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(vii) It is clarified that this Court has not
expressed any opinion on the merits of the rival
claims, and all questions of fact and law are left
open for consideration by the Trial Court;
(viii) Since the suit is of the year 2008,
the learned Trial Judge shall accord priority to
the matter and endeavour to dispose of O.S.
No.39/2008 as expeditiously as possible and, in
any event, within a period of nine months from
the date of receipt of a certified copy of this
order, subject to the cooperation of all the
parties;
(ix) All pending interlocutory applications,
if any, stand disposed of accordingly;
(x) No order as to costs.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
CA
CT:BCK
LIST NO.: 1 SL NO.: 159