IN THE HIGH COURT OF

CIRCUIT BENCH AT DHARWAD

Dated this the 7 th day of September, 2012

Before

THE HON’BLE MR JUSTICE HULUVADI G RAMESH

Regular Second Appeal 5126 / 2010 Between:

1 Sri Khanu Sawant Kurubar @ Aidmale 60 yrs, Shepherd

2 Sri Shivappa Swant Kurubar @ Aidmale 58 yrs, Shepherd

3 Sri Kallu Sawant Kurubar @ Aidmale 55 yrs,Shepherd

4 Smt Gangu W/o Kallappa Kurubar # Gavade 84 yrs, Household work

5 Sri Ramappa Kallappa Kurubar 69 yrs, Shepherd

6 Smt Bhagubai W/o Appa Dadiwale Since dead by LR

Sri Somuraniu Appa Dadiwale, 46 yrs Shepherd, R/a , Tq

7 Smt Sakku W/o Khanu Padarale @ Dhanagar @ Aidmale, 54 yrs, Household work 2

8 Smt Hirabai W/o Ramu Kurubar @ Aidmale 39 yrs, Household work

9 Smt Tayawwa W/o Kadappa Aidamale 59 yrs, Household work

10 Sri Rama Govardhan Kurubar @ Hirekodi Since dead by LR

Smt Tayawwa Rama Hirekodi, 68 yrs Household work

11 Sri Somurai Rama Kurubar @ Hirekodi 52 yrs, Agriculturist

12 Smt Godabai W/o Appa Pujari, 48 yrs Agriculturist, R/o Abdulat, Shirol Taluk Kolhapur District

13 Smt Lakshmibai W/o Laxman Aidmale 45 yrs, Agriculturist

14 Smt Shalabai Basavaraj Mane, 42 yrs Agriculturist, R/oKaroli, Shirol Tq Kolhapur District

15 Sri Vithal Rama Hirekudi, 40 yrs Agriculturist

16 Sri Annasaheb Rama Hirekudi, 36 yrs Agriculturist

17 Sri Appa Ningappa Kurubar – since dead by LR

Sri Balu Appa Kurubar @ Aidamale 60 yrs, Agriculturist 3

18 Sri Sangappa Appa Kurubar @ Aidamale 55 yrs, Agriculturist

19 Sri Rayappa Appa Kurubar @ Aidmale 50 yrs, Agriculturist

20 Smt Shakubai Vittal Vagale @ Aidmale 40 yrs, Agriculturist

21 Smt Ratnawwa Suresh Hirekudi, 45 yrs Household work, R/o , Chikodi,

22 Smt Bhagubai Appa Kurubar @ Aidamale 42 yrs, Agriculturist

23 Sri Bharama Balu Kurubar – since dead by LR

Sri Vasant Bharma Kurubar @ Aidemale 67 yrs, Agriculturist

24 Sri Khanu Bharma Kurubar @ Aidemale 57 yrs, Agriculturist

25 Smt Laxmibai W/o Mallu Mane, 70 yrs Household work, R/o Latawadi Shirol Taluk, Kolhapur District

26 Smt Sheeranamabi Annappa Dadiwale 60 yrs, Household work, R/o Chikodi Taluk, Belgaum

27 Smt Chandrabai Sadashiv Gavade @ Gavade 50 yrs, Household work, R/o Nandani Shirol Taluk, Kolhapur

28 Smt Indubai Ramachandra @ Hegannawar 50 yrs, Household work 4

29 Smt Surekha Babusaheb Dongarke @ Dongare 30 yrs, Household work, R/o Chadur Hatkanagale Taluk, Kolhapur

30 Sri Khanu Raghu Kurubar – since dead by LR

Sri Balu Khanu Kurubar @ Aidemale, 65 yrs Agriculturist

31 Smt Akkatai Bhuma Jinnar @ Jinnai, 57 yrs Household work, R/o Chikodi Tq, Belgaum

32 Smt Sakubai W/o Bhagoji Mudhale, 58 yrs Household work, R/o Hupari, Hatakanagala Tq Kolhapur District

33 Smt Satyawwa W/o Siddu Kurubar @ Gavade 54 yrs, Household Work

34 Sri Bharma Shidalinga Kurubar @ Aidmale 64 yrs – since dead: A 35-38 are LRS

35 Sri Mayappa Shidaling Kurubar @ Aidmale, 54 yrs Shepherd

36 Sri Mayapa Shidaling Kurubar @ Aidmale 49 yrs, Shepherd

37 Smt Satyawwa W/o Balappa Bage, 59 yrs Household work, R/o Abullat, Shirol Tq Kolhapur

38 Smt Hirabai W/oBuwappa Daragannaol @ Aidmale 57 yrs, Household work, R/oDhonewadi Chikodi, Belgaum 5

39 Sri Beera Bharama Kurubar @ Aidmale, 70 yrs Shepherd, R/oShirawad, Chikodi Tq Belgaum

40 Smt Sundrabai W/o Appa Gaade, 60 yrs Household work

41 Sri Kanchappa Kallu Kurubar @ Aidmale 50 yrs, Shephered

All are r/o Boragaon, Chikodi Taluk Belgaum Appellants

(By Sri R M Kulkarni, Adv.)

And :

Sri Balasaheb Kalagouda Patil Since deceased by his LRs

1 Sri Sunil Balasaheb Patil, 45 yrs Agriculturist, R/o Boragaon Chikodi, Belgaum

2 Sri Prakash Balasaheb Patil, 38 yrs Agriculturist, R/o Boragaon Chikodi, Belgaum

3 Vanita Balasaheb Patil, 50 yrs Agriculturist & Household work R/o Shamnewadi, Chikodi Tq Belgaum

4 Anita Balasaheb Patil Household work, R/o Boragaon Chikodi Tq, Belgaum 6

5 Jayashree Balasaheb Patil, 70 yrs Household work, R/o Boragaon Chikodi

6 Sri Bhahusaheb Kalagouda Patil 46 yrs, Agriculturist - since dead by LRs a Pushpavati W/o Bhahusaheb Patil Household work, R/o Boragaon Chikodi Taluk, Belgaum

B Vaishali W/o Dhaval Patil, 28 yrs Medical Practitioner, R/o Boragaon Chikodi Taluk, Belgaum

Now r/a Jayasingpur, Shirol Taluk Kolhapur District

C Vajrakumar S/o Bhahusaheb Patil 28 yrs, Service, R/o Boragaon Chikodi Taluk, Belgaum

7 Sri Peeragouda Kalagouda Patil 46 yrs, Agriculturist, R/o Boragaon Chikodi Taluk, Belgaum

8 Smt Champabai W/o Kalagouda Patil Since dead - R1-7 are her LRs

9 Sri Kallu Sattu Kurubar – since dead by LR

Smt Sonabai Kallu Kurubar – since dead by LRs 10-12

10 Sri Appasaheb Kallu Kurubar Agriculturist, R/o Shiril, Shiril Taluk Kolhapur 7

11 Sri Nagesh Kallu Kurubar Shepherd & Agriculturist R/o Boragaon, Chikodi Tq Belgaum

12 Rekha Kallu Kurubar Household work, R/o Boragaon Chikodi Tq, Belgaum

13 Sri Laxman Kallappa Kurubar, 68 yrs Shepherd, R/o Boragaon, Chikodi Tq Belgaum

14 Smt Byakka W/o Nagesh Kurubar @ Pujari Since dead R 16 to 23 are LRs

15 Sri Ramu Nemana Kurubar @ Pujari Since dead R16-23 are LRs

16 Sri Laxman Nemanna Kurubar @ Pujari 68 yrs, Agriculturist & Shepherd R/o Boragaon, Chikodi Tq, Belgaum

17 Sri Shivappa Nemanna Kurubar @ Pujari 65 yrs, Agriculturist & Shepherd R/o Boragaon, Chikodi Tq, Belgaum

18 Beerappa nemanna Kurubar @ Pujari Since dead by LRs

Shivubai Beerappa Kurubar @ Pujari Agriculturist & Household work R/o Boragaon, Chikodi Tq, Belgaum

19 Sri Shiddappa Beerappa Kurubar @ Pujari Agriculturist, R/o Boragaon, Chikodi Tq Belgaum 8

20 Sri Raosaheb Beerappa Kurubar @ Pujari Shephered, R/o Galataga, Chikodi, Belgaum

21 Smt Sattubai W/oShidaling Aiamale 63 yrs, Household work, R/o Boragaon Chikodi Tq, Belgaum

22 Smt Laxmibai W/o Kenchapa Pujari 56 yrs, Household work, R/o Shannewadi Chikodi Tq, Belgaum

23 Smt Shanta @ Sneha W/o Rama Murakhunde 27 yrs, Household work, R/o Karadagag Chikodi Tq, Belgaum

24 Smt Akkatai W/oGovardhan Kurubar @ Hirekudi 85 yrs, Household work, R/o Boragaon Chikodi Tq, Belgaum

25 Smt Ratnawwa Appa Kurubar @ Malaga Since dead by LR

Sri Appa Govardhan Kurubar @ Hirekodi Since dead by LR

Muktabai Appa Kurubar @ Hirekodi Agriculture & Household work R/o Boragaon, Chikodi Tq, Belgaum

26 Manekari Appa Kurubar @ Hirekodi Agriculturist, R/oBoragaon, Chikodi Tq Belgaum

27 Goudappa Appa Kurubar @ Hirekodi Agriculturist, R/o Boragaon, Chikodi Tq Belgaum 9

28 Rekha Suresh Chandri Agriculturist & Household work R/o Abdullat, Belgaum

29 Sri Satteppa Govardhan Kurubar @ Hirekodi 35 yrs, Shepherd, R/o Boragaon, Chikodi Belgaum

30 Sri Mallappa Govardhan Kurubar @ Hirekodi Since dead A 10-14 and R 24-29 & 31 are LRs

31 Smt Putalabai W/o Beera Jatrate, 65 yrs Household work, R/o Karadag, Chikodi Tq Belgaum

32 Sri Lokappa Kallu Kurubar – since dead by LRs

Kallu Lokappa Kurubar @ Aidamale, 80 yrs Agriculturist, R/o Barawad, Chikodi Tq Belgaum

33 Shidda Lokappa Kurubar @ Aidamale, 75 yrs Agriculturist, R/o Barawad, Chikodi Tq Belgaum

34 Bharama Lokappa Kurubar @ Aidamale 70 yrs, Agriculturist, R/o Barawad Chikodi Tq, Belgaum

35 Sri Beera Lokappa @ Aidamale, 65 yrs Agriculturist, R/o Borawad, Chikodi Tq Belgaum

36 Sri Shivaram Omanna Kurubar - since dead by LRs

Smt Gourabai Shivappa Pujari @ Dhanagar 90 yrs, Household work, R/o Barawad Chikodi Taluk, Belgaum 10

37 Appa Shivappa Pujari @ Dhanagar, 72 yrs Agriculturist, R/o Barawad, Chikodi, Belgaum

38 Devappa Shivappa Pujari @ Dhanagar 50 yrs, Agriculturist, R/o Barawad Chikodi Tq, Belgaum

39 Smt Akkatai Kallu Aidamale, 70 yrs Household work, R/o Barawad, Chikodi Belgaum

40 Sri Shidalinga Appa Kurubar, 69 yrs Since dead – R21 is LR

41 Sri Subbanna Sattu Kurubar, 74 yrs Household work, R/o Barawad, Chikodi Tq Belgaum

42 Smt Huvakka W/o Kallu Kurubar Since dead by LR

Smt Godabai Shiddu Kone, 85 yrs Since dead – R43 to 50 are LRs

43 Smt Laxmibai Balu Heggannavar, 74 yrs Household lwork, R/o Nagaral, Chikodi Tq Belgaum

44 Smt Malu Kallu Gavade, 67 yrs Agriculturist, R/oBarawad, Chikodi Tq Belgaum

45 Sri Appa Kallu Kurubar @ Gavade – since dead by LR Sri Shidram Appa Gavade, 52 yrs Household lwork, R/o Boragaon Chikodi Tq, Belgaum 11

46 Smt Akkatai Rao Saheb Gavade, 50 yrs Household work, R/o Boragaon, Chikodi Belgaum

47 Smt Anasuya Ramu Khot, 48 yrs Household work, R/o Latwadei Shirol Tq, Kolhapur District

48 Sri Nangu Appa Gavade @ Kurubar 40 yrs, Household lwork, R/o Boaragaon Chikkodi, Belgaum

49 Sri Beerappa @ Beeresh Appa Gavade @ Kurubar 44 yrs, Agriculturist, R/o Boragaon, Chikodi

50 Sri Mhalu Kallu Kurubar @ Gavade, 50 yrs (deleted vide order dated 4.9.2012)

51 Smt Goda W/o Shiddu Konale, 60 yrs (deleted vide order dated 4.9.2012)

52 Smt Lakkawwa W/o Balu Heggannavar @ Akare (deleted vide order dated 4.9.2012)

53 Sri Bharama Shiddu Kurubar, 57 yrs Since dead – by LRs

Sri Beera Kodi Kurubar – since dead by LRs

A Smt Kusabai W/o Bharma Kurbar @ Gavade @ Danagar, 70 yrs, Household work R/o Boragaon, Chikodi, Belgaum

B Sri Vittal S/o Bharma Kurbar @ Gavade @ Dangar 38 yrs, Agriculturist, R/o Borgaon, Chikodi Tq Belgaum 12

C Sri Sidda S/o Bharma Kurbar @ Gavade @ Dhanagar 36 yrs, Agriculturist, R/o Borgaon, Chikodi Tq Belgaum

D Mehalu S/o Bharma Kurbar @ Gavade @ Dhanagar 32 yrs, Housework, R/o Boragaon, Chikodi Tqluk Belgaum

54 Sri Ramu Beerappa Malage @ Kurubar, 65 yrs Agriculturist & Shepherd, R/o Boragaon Chikodi, Belgaum

55 Sri Modappa Beerappa Kurubar @ Malaga 60 yrs, Agriculturist, R/o Boragaon, Chikodi Tq Belgaum

56 Smt Kalawati Sidaram Kurubar, 70 yrs Household work, R/o Nagarmunnoli Chikodi Tq, Belgaum

57 Smt Gourabai W/o Appa Pujari, 68 yrs Household work, R/o Ruyi, Hatakagala Kolhapur

Since dead R35-38 are LRs Respondents

(By Sri A S Patil, Adv. for R1-5 & 7 & R6 (a-c); Smt Girija S Hiremath, Adv. for R10-13, R16-29, 31-39, 4,43-49, 53(a-d) & 54, 56)

This Second Appeal is filed under S.100, CPC praying to set aside the judgment and decree dated 9.11.2009 in RA 34/1990 by the Fast Track Court I, Chikkodi.

This Appeal coming on for Orders this day, the Court delivered the following: 13

JUDGMENT

The second appeal arises out of the order passed by the

Fast Track Court I, Chikkodi in RA 34/1990 on 9.11.2009 against the order of the Principal Munsiff, Chikkodi in OS

245/1978 on 20.9.1990.

Original suit was filed by the plaintiffs before the Prl.

Munsiff, Chikkodi against the defendants for partition and separate possession of their 1/4 th share in the suit land in

Sy.No.1 measuring 14.34 acres (RS 1/A/1/1 and RS 1/A/1/2)

The suit was contested. During pendency of the suit, several persons have died.

The 15 th defendant resisted the suit along with some other defendants denying the contents of the suit. According to the defendants, land in question is a mardi land situate at

Borgaon measuring 14.29 acres and defendants and their ancestors are actually residing in old houses and huts and the contention of the plaintiffs or their predecessor in title were in 14 joint possession and cultivation of the property is false and plaintiffs have nothing to do with the said land. Based on the pleadings, as many as sixteen issues were raised. After inquiry, while answering the relevant issues, trial court decreed the suit with costs holding that plaintiffs are entitled for partition and separate possession of 1/4 th share in the suit land. Against the said order in the appeal filed, the Fast Track Court I, Chikkodi in RA 34/1990 dismissed the appeal confirming the judgment and decree passed by the Prl. Munsiff Court. Against the said order, this second appeal is filed.

During pendency of the matter, parties have entered into compromise amicably and have filed a compromise petition under O 23 R 3, CPC. As per the terms of the compromise, it appears after the purchase of property in 1925, plaintiffs are shown to have not taken possession and it had been continued in possession of the defendants. As such, at the instance of elderly persons, appellants and respondents 9 - 57 have agreed to compromise as per the terms of the compromise memo and 15 have agreed to pay Rs.1 lakh to respondent 1, 6(a) and 7 respectively towards cost of litigation expenses.

Parties and their counsel are present. Parties are permitted to enter into compromise. The compromise petition be read as part and parcel of this order. The decree of the trial court as well as the lower appellate court is modified accordingly. Appeal is disposed of in terms of the compromise petition.

Sd/- Judge

An