1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 28 TH DAY OF JUNE, 2016 BEFORE THE HON' BLE MRS JUSTICE B.V. NAGARATHNA RSA NO. 47/2009 C/W RSA NO.441/2016 BETWEEN: MR.CHARLES WILSON, S/O LATE SAMUEL WILSON, AGED ABOUT 58 YEARS, R/AT ABBA, SHANTHINAGAR 1 ST STAGE, MANIPAL IV, UDUPI DISTRICT 576101. ..APPELLANT (COMMON) (BY SHRI.A.D.RAMANADA, ADVOCATE) AND: SAMUEL WILSON, S/O LATE SIMON SUMITHRA SINCE DECEASED REPTD. BY LR. MRS. THELMA WILSON (DEFENDANT NO.2) W/O LATE SAMUEL WILSON, AGED ABOUT 67 YEARS, R/AT 11-66F, NIDAMBUR PANCHAYAT, KUTHPADY VILLAGE, UDUPI DISTRICT – 576101 SINCE DECEASED R/BY LRS 1(A) OLIVER GLADSON 2 S/O LATE SAMUEL WILSON, AGED ABOUT 43 YEARS, NO.11- 11-66F, NIDAMBUR PANCHAYAT, KUTHPADY VILLAGE, UDUPI DISTRICT – 576101 1(B) LAN GLENSON, S/O LATE SAMUEL WILSON, AGED ABOUT 56 YEARS. 1(C) ALAN JOHNSON, S/O LATE SAMUEL WILSON, AGED ABOUT 40 YEARS, BOTH RESPONDENT NO.2 AND 3 C/O OLIVER GLADSON NO.11-66F NIDAMBUR PANCHAYAT, KUTHPADY VILLAGE, UDUPI DISTRICT – 576101. ….RESPONDENTS (IN RSA NO.47/2009) (BY SHRI. VYASARAO K.S., ADVOCATE FOR R-1[A] ) 1.LAN GLENSON, 56 YEARS S/O LATE SAMUEL WILSON. 2. ALAN JOHNSON, 40 YEARS, S/O LATE SAMUEL WILSON. 3. OLIVER GLADSON S/O LATE SAMUEL WILSON, AGED ABOUT 43 YEARS, NO.11- 11-66F, NIDAMBUR PANCHAYAT, KUTHPADY VILLAGE, UDUPI DISTRICT – 576101. …RESPONDENTS (IN RSA NO.441/2016) (BY SHRI. VYASARAO K.S., ADVOCATE FOR R-3 R1 AND R2 - DELETED V/O DATED 28.6.2016) 3 RSA NO.47/2009 IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 17.9.2008 PASSED IN R.A.NO.157/1998 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.6.1998 PASSED IN OS.NO.179/1995 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN), UDUPI ETC. RSA NO.441/2016 IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.1.2016 PASSED IN R.A.NO.29/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 16.6.2012 PASSED IN O.S.NO.5/2009 ON THE FILE OF THE II ADDL. CIVIL JUDGE AND JMFC., UDUPI ETC. THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING; JUDGMENT R.S.A.No. 47/2009 arises out of the judgment and decree passed in R.A.No.157/1998 dated 17.9.2008 by which the judgment and decree passed in O.S.No.179/1995 by the Principal Civil Judge (Jr.Dn), Udupi, was confirmed. Appellant herein was the plaintiff in the said suit seeking the relief of mandatory injunction directing the defendants to vacate the suit property and for future mesne profits and for return of ‘B’ schedule 4 movables, which suit was dismissed, Being unsuccessful in the appeal, plaintiff has preferred the present appeal. 2. R.S.A.No.441/2016 arises out of the judgment and decree passed in R.A.No.29/2019 disposed of by the Principal Senior Civil Judge at Udupi, dated 14.1.2016, by which the order passed on I.A.No.VI by the Court of II Additional Civil Judge & JMFC, Udupi, dated 16.6.2012 on the question as to whether the said suit was hit by principle of res judicata was allowed and the suit was dismissed holding that it was hit by the principle of res judicata on account of the judgment and decree passed in the earlier proceeding in O.S.No.179/1995. 3. In the circumstances, R.S.A.No.441/2016 has been connected with R.S.A.No.47/2009. 4. These appeals were listed on 15.6.2016. On that day learned counsel for the respective parties submitted that they would explore the possibility of a settlement in the matter. 5 5. The appeals are admitted to consider the following substantial question of law; “ Whether in view of the settlement arrived at between the parties, the judgment and decree of the appellate court, which has affirmed the judgment and decree of the trial court, calls for any modification in this appeal? “ 6. Today, the respondent No.3 - Sri. Oliver Gladson, son of late Samuel Wilson has filed an affidavit stating that he and his family members are in possession of the suit schedule property and none else and that he would vacate and handover vacant possession of the suit schedule property on or before 30.9.2016 ; till then he shall not create any third party rights or cause damage to the suit schedule property. He has also stated in unequivocal terms that the appellant/plaintiff is the absolute owner of the suit schedule property and that the title deeds in respect of the said properties stand absolutely in his name. He has further stated that the appellant being none other than his elder brother who is 6 willing to assist him financially in order to secure an alternative accommodation has agreed to pay him Rs.4,00,000/- and that on receipt of the said amount, he would undertake to vacate and hand over vacant possession of the suit property on or before 30.9.2016. 7. The deponent of the affidavit i.e. Oliver Gladson, who is present in court submits that he stands by the contents of the affidavit and undertakes to take steps accordingly. He further submits that the dispute between the parties may be disposed of in terms of what is stated in the affidavit. 8. Learned counsel for the appellant who has perused the affidavit submits that he has no objection to the contents of the affidavit. 9. The affidavit of Mr. Oliver Gladson, is taken on record. The dispute between the parties is resolved accordingly. 7 10. Today, appellant’s counsel has handed over a demand draft bearing No.325028151 dated 20.8.2016 for a sum of Rs.4,00,000/- in favour of Oliver Gladson which has been issued by Union Bank of India. The receipt of the same is acknowledged by Mr. Charles Wilson and his counsel. Respondent - Oliver Gladson, is directed to comply with the terms and conditions mentioned in the affidavit as per his undertaking given to this court. 11. Appeals are disposed, in terms of the settlement arrived at above by modifying the judgment and decree of the Courts below in accordance with the settlement arrived at between the parties. In view of the disposal of the appeals, Misc. cvl.304/2009 and I.A.1/16 for dispensation also stand disposed. Sd/- JUDGE Msu .