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Judgment
This appeal is filed under Section 96 of CPC challenging the order dated 30.07.2015 passed by the III Additional Senior Civil Judge, Mangalore, Dakshina Kannada in F.D.P.No.3/2014. An order is also sought from this Court to set aside the report submitted by the Court Commissioner effecting division of the property pursuant to the preliminary decree passed.
Grievance of appellant who is respondent in the Court below is that the Court Commissioner has not taken note of all the aspects of the matter involving the suit schedule property and has committed error in showing the allotment of Yellow coloured portion of the premises measuring 12 1/2 cents comprised in Sy.No.30/1B P2 of Kankanady Village, Mangalore Taluk in favour of plaintiff - respondent No.1 herein.
Sketch prepared by the Court commissioner is placed before the Court for perusal. As can be seen from the sketch, the Court Commissioner has divided the property into two portions. Portion shown in Pink Colour is assigned Sy.No.31/1B P1 which consists of a house, shops and a portion of cowshed and this portion is allotted in faovur of defendant - Fancis Lobo. Yellow portion is shown as Sy.No.30/1B P2 which measures 12 1/2 cents and is shown as having been allotted in favour of Plaintiff - Mrs. Mary Lobo.
It is necessary to notice here that plaintiff being the sister of defendant had instituted suit in O.S.No.21/2012 seeking partition and separate possession of her half share in the joint family property. Suit was decreed in the final decree proceeding. The Commissioner has submitted the aforementioned report. The Court below after considering the contentions of both parties has accepted the report submitted by the Court Commissioner and has allotted Pink portion to the defendant and Yellow portion to the plaintiff. Defendant is aggrieved by this order passed in the final decree proceeding.
We have heard the learned counsel for both parties. Indeed, on 21.02.2017 after hearing the learned counsel for both parties, the matter was adjourned to enable both parties to arrive at an amicable settlement with a direction to both parties to be present before the Court.
Today, Sri Mahesh Y.K S/o. Sri Yogish A. Karkera is present before the Court. He is the general power of attorney holder of plaintiff. We have perused the original general power of attorney executed by plaintiff - Mrs. Mary Lobo in his favour. He is none other than the son-in-law of plaintiff. He has been authorized to settle the dispute by entering into a compromise. Defendant - appellant is also present before the Court. Both of them have agreed to exchange the portions allotted to them as per the Commissioner''s sketch. They have filed a compromise petition. In view of the settlement amicably reached between them through the help of learned counsel appearing for both sides and also on the suggestion made by this Court, we hereby place on record the terms of the compromise petition filed under Order 23 Rule 3 of CPC on record.
There is no impediment in law to accept the compromise. We are satisfied that compromise arrived at is voluntary and is intended to settle the dispute once and for all. In terms of the compromise, plaintiff - respondent No.1 shall be put in possession of Pink portion of the property measuring 12 1/2 cents shown as Sy.No.30/1B P1. Whereas defendant - appellant shall be put in possession of Yellow portion of the property measuring 12 1/2 cents shown as Sy.No.30/1B P2 in the Court Commissioner''s sketch. Both parties have agreed that a date may be fixed directing the very same Court Commissioner who has prepared the sketch to hand over actual possession of the respective portions to plaintiff and defendant.
We accept the compromise and direct the Court Commissioner - Sri B.J.Surtado to visit the spot and hand over the actual possession of the property shown in the sketch prepared by him to plaintiff and defendant. Both parties are directed to be present on the spot on 15.03.2017 at 11.00 AM. Both parties have agreed that they will pay a sum of Rs.5,000/- each towards Commissioner''s fee to the Court Commissioner on the same day.
The Court Commissioner is directed to visit the spot along with the surveyor who had assisted him in preparing the sketch to carry out the direction issued in this order. Soon thereafter, the Court Commissioner is directed to submit a report regarding delivery of possession to the trial Court as also to the registry of this Court.
Appeal is accordingly disposed of.