AS/2595/2004 of K. Surya Prakasa Rao Vs K. Kameswara Rao on 29 December 2009

COMMON JUDGMENT:

Per the Hon'ble Sri Justice Ghulam Mohammed The appellant and the subject matter in both theappeals is one and the same, hence, both the appealsare heard together the disposed of by this commonJudgment.

Aggrieved by the common Judgment and decreepassed by the District Judge, Visakhapatnam in suitsO.S.No.144 of 1999 and O.S.No.82 of 2000, dated 16-07-2003, the present appeals are being filed.

The appellant Sri K. Surya Parakasa Rao institutedO.S.No.82 of 2000 (old suit No.11/1996) on the file of theDistrict Court, Visakhapatnam, seeking for declarationthat he is the absolute owner of the Item No.2 of the suitschedule house property and consequential relief ofrecovery of possession, etcetera.

Respondents 1 to 5 in A.S.No.2595 of 2004,instituted O.S.No.144 of 1999 on the file of the DistrictCourt, Visakhapatnam, seeking partition of Item-1 of thesuit schedule property into two (2) equal shares and toallot one such share to the 6[th] respondent / 2[nd] defendantand divide the remaining half share into four (4) equal shares and allot three (3) such shares to respondents 1 to5 / plaintiffs and one such share to the appellant / 1[st]defendant and, also partition of Item-2 of the plaintschedule house property into four (4) equal shares and toallot three (3) such shares to respondents 1 to 5 /plaintiffs and one such share to the appellant / 1[st]defendant and for costs, etcetera.

Both the suits were clubbed together and disposedof by a Common Judgment dated 16-07-2003, wherebyand whereunder the suit O.S.No.144 of 1999 wasdecreed as prayed for and the suit O.S.No.82 of 2000was dismissed.

Entertaining A.S.No.2595 of 2003, this Court stayedpassing of final decree in O.S.No.144 of 1999 on the fileof the District Court, Visakhapatnam.

Now, it is brought to our notice that during thependency of these appeals, the appellant Sri K. SuryaPrakasa Rao died. The Legal Representatives of thedeceased appellant filed miscellaneous petitions in boththe appeals, to condone the delay of 154 days in filingthe petition to bring the legal representatives on record, toset aside the abetment of the appeals and to bringpetitioners 2 to 4 therein as legal representatives of theappellant.

Having satisfied with the reasons stated in therespective accompanying affidavits, all themiscellaneous petitions are ordered as prayed for.

At this stage, it seems, all the parties on both sideshave settled the disputes amicably amongst themselvesby entering into a compromise and reduced the terms ofthe said settlement into a memo, under Order-23 Rule-3r/w Section 151 of the Code of Civil Procedure, dulysigned by all of them, and filed the same before this Courtin A.S.M.P.No.2326 of 2009, which is to the followingeffect:

a)All the parties have agreed that Item-1 of theschedule property be divided into two (2) equalshares and allot one such share to the 6[th]respondent / 2[nd] defendant absolutely and theremaining half of the said property shall be dividedinto four (4) equal shares and agreed for allotmentof three (3) such shares to respondents 1 to 5 andone such share to the appellants 2 to 4.schedule property be divided into two (2) equalshares and allot one such share to the 6[th]respondent / 2[nd] defendant absolutely and theremaining half of the said property shall be dividedinto four (4) equal shares and agreed for allotmentof three (3) such shares to respondents 1 to 5 andone such share to the appellants 2 to 4.

b)All the parties agreed that Item-2 of schedulehouse property shall be divided into five (5) equalshares and two (2) such shares shall be allotted toappellants and the remaining three (3) suchshares shall be allotted to 1[st] respondent, 3[rd]respondent and respondents 4 and 5 put togetherequally.house property shall be divided into five (5) equalshares and two (2) such shares shall be allotted toappellants and the remaining three (3) suchshares shall be allotted to 1[st] respondent, 3[rd]respondent and respondents 4 and 5 put togetherequally.

c)The 6[th] respondent agreed that he has no claimor whatsoever in respect of Item-2 of suit schedulehouse property.or whatsoever in respect of Item-2 of suit schedulehouse property.

d)All the parties agreed that, since Item-2 ofschedule house property is indivisible property, itshall be jointly sold or given for development byentering into a development and agreement withany prospective purchaser / builder and share theproceeds / built up area as per the aforesaidagreed share mentioned in clause (b) respectively.schedule house property is indivisible property, itshall be jointly sold or given for development byentering into a development and agreement withany prospective purchaser / builder and share theproceeds / built up area as per the aforesaidagreed share mentioned in clause (b) respectively.

e)All the parties agreed that they shall not make anyclaims or whatsoever in respect of shares allottedto each other and they will abide by the terms ofcompromise.claims or whatsoever in respect of shares allottedto each other and they will abide by the terms ofcompromise.

f)Both the suits O.S.No.144 of 1999 and O.S.No.82of 2000 shall be decreed in terms of thiscompromise.of 2000 shall be decreed in terms of thiscompromise.

g)All the parties agreed to bear their own costs.

All the parties appeared before this Court andconsented to the said compromise memo, and prayed toorder the same, in the presence of their respectivecounsel.

In view of the said settlement of the issues by theparties, by way of a compromise, taking the saidcompromise memo onto record, A.S.M.P.No.2326 of2009, is ordered as prayed for.

Registry is directed to prepare a decree in terms ofthe compromise memo.

Consequently, there remains nothing to beadjudicated in these two Appeals, and accordingly, theyare disposed of in terms of the compromise memo . Nocosts.

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Ghulam Mohammed, J

---------------------------------Nooty Ramamohana Rao, J

mrk

29[th] December 2009