- 1 - NC: 2025:KHC:15888 RFA No. 53 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 53 OF 2023 (PAR/INJ-) BETWEEN: SMT. NUSRATH FATHIMA, DAUGHTER OF LATE NOOR MOHAMMED, AGED ABOUT 53 YEARS, RESIDING AT NO.164 AND 165, 2ND FLOOR, SEPPINGS ROAD, BHARATHINAGAR, BENGALURU–560 001. …APPELLANT (BY SRI. SYED KHALEEL PASHA.,ADVOCATE) AND: 1. SMT. NISHATH BANU, WIFE OF LATE SHABBEER AHMED SHAH, AGED ABOUT 57 YEARS 2. SRI ABDUL ZAHIR SHAH, SON OF LATE SHABBEER AHMED SHAH, AGED ABOUT 39 YEARS 3. SRI MOHAMMED AAMIR SHAH, WIFE OF LATE SHABBEER AHMED SHAH, AGED ABOUT 35 YEARS 4. SMT. ZAIBA FIRDOSE, DAUGHTER OF LATE SHABBEER AHMED SHAH, AGED ABOUT 31 YEARS RESPONDENT NO.1 TO 4 ARE RESIDING AT NO.27/3, MV 2ND BLOCK, 2ND CROSS, MARAPPA GARDEN CHURCH ROAD CROSS, JC NAGAR, BENGALURU-560006. Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:15888 RFA No. 53 of 2023 RESPONDENTS 1, 3 AND 4 ARE REPRESENTED BY THEIR GENERAL POWER OF ATTORNEY HOLDER, SRI ABDUL ZAHIR SHAH, THE RESPONDENT NO.2 HEREIN. 5. SMT. BEGUM JAN SINCE DEAD, RESPONDENTS 1 TO 4 ARE TREATED AS HER LEGAL REPRESENTATIVES 6. SRI MOHAMMED AFROZ MODI SON OF SRI M. IBRAHIM MODI, AGED ABOUT 55 YEARS RESIDING AT 162 AND 163, 2ND FLOOR, SEPPINGS ROAD, BHARATHINAGAR, BENGALURU-01. 7. SRI SYED QUALEELULLA QUADRI S/O SYED KHADAR PASHA AGED ABOUT 56 YEARS, OFFICE AT 162 AND 163, 1ST FLOOR, SEPPINGS ROAD, BHARATHINAGAR, BENGALURU-560001. …RESPONDENTS (BY SRI. C SHANKAR REDDY.,ADVOCATE FOR R-1 TO R-4; R-5 IS DEAD – V/O DTD: 10.09.2024, NO FRESH STEPS ARE NECESSARY; SRI. FAIZ PASHA, ADVOCATE FOR R-6; SRI. MAHABOOB ALI, ADVOCATE FOR R-7) THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.11.2022 PASSED IN OS.NO.25514/2011 ON THE FILE OF THE LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, C/C LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE MAYO HALL UNIT, CITY CIVIL COURT BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND INJUNCTION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR - 3 - NC: 2025:KHC:15888 RFA No. 53 of 2023 ORAL JUDGMENT This appeal by the plaintiff in O.S.No.25514/2011 is directed against the impugned judgment and decree dated 10.11.2022 passed by the LVII Addl. City Civil & Sessions Judge, Mayohall Unit, Bengaluru (CCH-58), whereby the said suit filed by the appellant – plaintiff against the respondents – defendants for partition and perpetual prohibitory injunction and other reliefs in relation to the suit schedule immovable properties was partly decreed by the Trial Court. 2. Appellant and respondents have filed Memorandum of Settlement under Section 89 of the CPC r/w. Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005, which reads as under: “ MEMORANDUM OF SETTLEMENT PRESENTED UNDER SECTION 89 OF THE CODE OF CIVIL PROCEDURE READ WITH RULES 24 AND 25 OF THE KARNATAKA CIVIL PROCEDURE (MEDIATION) RULES, 2005. The appellant, respondents 1 to 4, 6 and 7 above named submit as follows: 1. The parties submit that this honourable court noticing that there is an element of settlement between the parties was pleased to appoint Senior Mediator/Advocate Sri Lakshmeesha Rao to mediate between the parties. Constant - 4 - NC: 2025:KHC:15888 RFA No. 53 of 2023 mediation efforts recorded by the above referred mediator, the subject matter of the above appeal has been settled between the parties and the terms of the settlement is recorded in the Memorandum of Settlement. 2. The appellant has filed the above suit for the relief of partition and separate possession against the respondents 1 to 5 herein in respect of the Schedule ‘A’ to ‘E’ properties as indicated in the plaint in OS no.25514/2011 on the file of the LVII Additional City Civil and Sessions Judge, at Bengaluru [Mayo Hall unit-CH-58]. Schedule ‘A’ to ‘D’ in the suit are immovable properties and the Schedule ‘E’ property is the only movable property. 3. The parties submit that during the pendency of the original suit, the 5th respondent has died and she has not left behind any other legal representatives other than respondents 1 to 4 herein and the same has been noted by the trial court. In view of the same as per the memo filed by the appellant, the appeal as against the 5th respondent/5th defendant has been dismissed. 4. The parties submit that while the mediation talks were in progress it was noticed that in order to arrive at a full and final settlement the parties to the other pending litigations are also required to be added as parties for a full and final settlement. Accordingly, Sri Mohammed Afroz Modi, the respondent no.6 against whom eviction proceedings were initiated in HRC no.10007/2018 on the file of the V Additional Court of Small Causes Judge, Bengaluru, Mayo Hall unit - 5 - NC: 2025:KHC:15888 RFA No. 53 of 2023 [SCCH-20] and the same has been dismissed under an order dated 09.10.2019. However, the same is pending in HRRP no.4/2020 on the file of the honourable High Court of Karnataka at Bengaluru in which the 6th respondent in the above appeal is the first respondent in the said HRRP and the appellant herein is the second respondent therein. The said respondents in HRRP no.4/2020 have also joined in the settlement talks and in terms of the understanding arrived at, the 6th respondent herein admits that he is a tenant under the respondent no.1 and he has agreed to quit, vacate and handover vacant possession of the property in his possession on or before 31.12.2025 without driving the respondent no.1 to initiate execution proceedings. In view of the settlement arrived at between the respondents 1 and 6, the 6th respondent would hand over possession voluntarily within the date indicated as above without seeking any extension of time. On failure of the 6th respondent to quit, vacate and handover vacant possession to the 1st respondent by the said agreed date, then the 1st respondent can move the execution court and take possession in accordance with law and in such an event the respondent no.6 becomes liable to pay all the rents due payable past and present till physical possession is taken over by the 1st respondent. Till such time, the 6th respondent undertakes not to induct third parties into possession of the property and will not create any sort of encumbrances over the said property. The property in the possession of the 6th respondent is part of suit schedule ‘A’ property and the same is shown as property bearing no.162, 163, 2nd floor residential portion situated at Pettigrew Street, Seppings Road Cross, Bengaluru-560001, which is - 6 - NC: 2025:KHC:15888 RFA No. 53 of 2023 separately described as Schedule ‘F’ property to the Memorandum of Settlement. 5. By virtue of the settlement arrived at between the 1st respondent and the 6th respondent, the 6th respondent and the appellant have not retained any right, title, interest or possession over the Schedule ‘F’ property herein. The 6th respondent admits that the 1strespondent is the owner of the property and the appellant also consents to the same. The 6th Respondent is ready and willing to handover the vacant possession to the 1st Respondent in respect to the schedule mention HRC no.10007/2018 on the file of the V Additional Court of Small Causes Judge, Bengaluru, Mayo Hall unit [SCCH-20] which is clearly mentioned in herein as Schedule ‘F’ property to the Memorandum of Settlement. As per the request of the appellant and respondent No.6, the respondent No.1 waives off the rent in HRC no.10007/2018. The appellant and the 6th respondent withdraw their written statement and undertake not to initiate any proceedings, not claim any right, title, interest or possession against the 1st respondent or respondents 2 to 4 herein. However, all care should be taken by the appellant and the 6th respondent to handover vacant possession to the 1st Respondent without damaging the structure and handing over the same in tenantable condition. 6. The 1st respondent has initiated eviction proceedings against the 7th respondent herein i.e., Sri Syed Qualeelulla Quadri @ Syed Khaleel Pasha in SC no.860/2021 on the file of the XXII Additional Judge, Court of Small Causes, - 7 - NC: 2025:KHC:15888 RFA No. 53 of 2023 Bengaluru seeking for eviction of the property in the possession of the 7th respondent which is part of suit schedule ‘A’ property and the same is shown as property bearing no.162, 163, 1st floor non-residential portion situated at Pettigrew Street, Seppings Road Cross, Bengaluru- 560001, which is separately described as Schedule ‘G’ property to the Memorandum of Settlement for the sake of convenience. The appellant has filed an impleading application to implead herself as a party in the said eviction suit. The 7th respondent has filed his statement of objections and has been contesting the suit proceedings. However, the 7th respondent is agreeable to quit, vacate and handover vacant possession of the property in his possession on or before 31.12.2025 in favour of the 1st respondent. The 7th respondent admits that there is no security deposit amount lying with the 1st respondent and the same has long back been adjusted towards arrears of rents. However, all care should be taken by the 7th respondent to handover vacant possession without damaging the structure and handing over the same in tenantable condition. Neither party are having any financial commitments to the other parties in respect of the Schedule ‘G’ property. 7. The appellant submits that she is agreeable to receive a sum of Rs.25,00,000=00 [Rs. Twenty-Five Lakhs only] towards her claims in respect of suit schedule item no.1 to 5 and the respondents 1 to 4 are agreeable to pay the said amount as a one-time settlement without admitting the entitlement of the appellant/plaintiff. By virtue of the said settlement the appellant agrees to withdraw her entire claims - 8 - NC: 2025:KHC:15888 RFA No. 53 of 2023 in respect of suit schedule ‘A’ to ‘E’ properties for all times to come and further admit that the schedule ‘F’ and ‘G’ properties indicated in the compromise petition are absolutely owned and possessed by the 1st respondent herein. The appellant herein submits that in lieu of this memorandum of settlement she has relinquished all her rights, title and interest in respect of schedule ‘A’ to ‘E’ properties and at any cost she will not claim the same. In this respect she will file all necessary applications in the FDP proceedings and shall also execute necessary documents in favour of Respondent No.1 or Respondent 2 to 4 to enable them to enjoy all the properties of the deceased Sri. Shabbeer Ahmed Shah in the future. In this respect, the appellant will not file or claim any right, title or interest in future from Respondent 1 to 4 or any anybody else and will also not file any sort of civil or criminal cases in respect of schedule property or any other property owned by the deceased Sri. Shabbeer Ahmed Shah. In any event if the appellant files any petition or claims against Respondent No.1 to 4, under such circumstances the Respondent No.1 to 4 reserves the right to file defamation case or any other case in accordance with law. The appellant admits that she is in possession of a portion of the suit schedule ‘A’ property and the same is shown as property bearing no.164, 165, 2nd floor residential portion situated at Pettigrew Street, Seppings Road Cross, Bengaluru-560001, which is separately described as Schedule ‘J’ property to the Memorandum of Settlement for the sake of convenience. The appellant is not in possession of any other portion of suit schedule ‘A’ property or any other properties which are subject matter of the suit. The appellant has agreed to quit, - 9 - NC: 2025:KHC:15888 RFA No. 53 of 2023 vacate and handover vacant possession of compromise petition ‘J’ schedule property free of all encumbrances on or before 31.12.2025 and till then she undertakes that she will not induct any third parties into possession and will not create third party encumbrances in respect of any of the suit schedule properties. The appellant further assures and admits that she has not already created any sort of right, title, interest and she has not delivered possession in favour of third parties in respect of any of the suit schedule properties and if any such claims are raised henceforth it is the responsibility of the appellant to resolve the same at her own costs. The appellant has no objections for the respondents 1 to 4 to enjoy the suit schedule ‘A’ to ‘E’ properties exclusively by them without the consent or concurrence of the appellant or any person acting on behalf of her. 8. The appellant undertakes to execute any registered or unregistered documents in favour of the respondents 1 to 4 to enable the said respondents to enjoy the property henceforth free of all encumbrances. The appellant admits, agrees, relinquishes, gives up, abandons any right, title, interest or possession in respect of any of the suit schedule properties or any other properties that might have been left behind by late Shabbeer Ahmed S. 9. In so far one portion of the property which is in the possession of the 7th respondent, the appellant had let out the same to the 7th respondent and the same is shown as property bearing no.164, 1st floor non-residential portion situated at Pettigrew Street, Seppings Road, Bengaluru- - 10 - NC: 2025:KHC:15888 RFA No. 53 of 2023 560001, which is separately described as Schedule ‘H’ property to the Memorandum of Settlement for the sake of convenience. By virtue of the appellant giving up her right, title, interest or possession in all the suit schedule properties, the respondent No.1 to 4 are entitled to be declared as the absolute owners in respect of the said portion of the property. The 7th respondent has agreed to handover vacant possession of the compromise petition schedule ‘H’ property on or before 31.12.2025 without driving the 1st respondent to initiate execution proceedings. However, the 7th respondent is not liable to pay any rents till 31.12.2025 to the 1st respondent. On and from the date of this compromise petition, the 7th respondent admits that the landlady is the 1st respondent and that he will handover vacant possession only to the 1st respondent and that till then will not induct any third parties and will not create any sort of encumbrances in respect of the said property. There is no advance/security deposit paid by the 7th respondent in respect of the said property. However, the 7th respondent undertakes to exercise care and caution not to damage the Schedule ‘H’ Property indicated in the above compromise petition and will handover the same in good and tenantable condition. 10. The appellant and the Respondent No.6 and 7 undertake to handover their entire respective possession in respect to the Schedule Property ‘A’ to ‘E’ or any other property owned by the deceased Sri. Shabbeer Ahmed S to the 1st respondent or respondent 2 to 4. The respondents 1 to 4 have voluntarily without admitting the claims made by the appellant have agreed to make good a sum of - 11 - NC: 2025:KHC:15888 RFA No. 53 of 2023 Rs.25,00,000=00 [Rs. Twenty-Five Lakhs only] as full and final settlement amount. The said amounts are paid in the following manner: [a] Account payee cheque issued by Respondent No.4 for a sum of Rs.10,00,000=00 (Rs. Ten Lakhs only) bearing no. 001596 drawn on ICICI Bank, IFS Code: ICIC0000263, dated: 20.04.2025, issued in the name of the appellant herein. [b] Demand draft bearing no. 536872 drawn on ICICI Bank, dated: 15.04.2025, purchased by Sri. Tariq Ahmed Miyanji, the husband of the Respondent No.4 herein for a sum of Rs.5,00,000=00 (Rs. Five Lakhs only) issued in the name of the appellant herein. [c] Balance amount of Rs.10,00,000=00 [Rs. Ten Lakhs only] will be paid at the time of handing over vacant possession of the schedule property in good tenantable condition i.e., the compromise petition schedule ‘F’, ‘G’, ‘H’ and ‘J’ portions. The respondents 1 to 4 are entitled to withhold the amounts until all the 4 portions i.e., compromise petition schedule ‘F’, ‘G’, ‘H’ and ‘J’ portions are handed over to the 1st respondent or to the respondents 2 to 4 by taking suitable acknowledgement in this behalf. 11. In case the appellant, respondents 6 and 7 any of them, or all of them fail to adhere to the compromise petition, then in such an eventuality, the respondent no.1 or respondents 2 to 4 are at liberty to initiate execution proceedings against all of them or any of them separately or commonly and recover possession of the said portions of the properties through the assistance of the court. In such an event the balance amount of Rs.10,00,000=00 [Rs. Ten Lakhs only] shall be forfeited by the respondents 1 to 4 since the same amounts to violating the terms of the compromise petition. - 12 - NC: 2025:KHC:15888 RFA No. 53 of 2023 12. In any event, the appellant has no objection to confirm the judgment and decree of the trial on suit schedule ‘A’ to ‘E’ properties. The present Regular First Appeal filed is now settled and hence the appellant/plaintiff has no objection to dismiss the entire suit filed by her in view of her alleged claims being settled fully and finally. 13. The appellant or any person acting on her behalf undertake not to question of revenue records or any other documents either registered or unregistered that have been executed by Sri Shabbeer Ahmed S in favour of the respondents 1 to 4 or any third parties. 14. The appellant has no objection for the respondent no.1 or respondents 2 to 4 to enjoy the properties in the manner of their liking and shall not interfere with their possession and will not make any conflicting claims in respect of any of the properties that might have been left behind by late Sri Shabbeer Ahmed S either movable or immovable and the respondent no.1 or respondents 2 to 4 are at liberty either to enjoy the same in the present condition, raise fresh constructions or dispose of the said properties either in full or in part without the consent or concurrence of the appellant or any of her representatives. 15. The parties to the compromise petition admit that FDP no.25001/2023 is pending on the file of the LVII Additional City Civil and Sessions Judge at Bengaluru [CCH-58] and that the appellant and respondents 1 to 4 undertake to appear before the said final decree court and bring to its knowledge regarding the compromise arrived at between the parties in - 13 - NC: 2025:KHC:15888 RFA No. 53 of 2023 the above appeal and accordingly request the court to dispose of the final decree proceedings in terms of the above compromise petition. 16. All the parties to the compromise petition agree to bear their own costs of the proceedings throughout. SCHEDULE ‘A’ PROPERTY All that piece and parcel of the immovable property bearing municipal corporation old No.1, later Old Nos.103-C, 103-D, 103-E, 103-F, now present Nos. 162, 163, 164 & 165 at Pettigrew Street, Seppings road, civil station, Bangalore – 560001, Corporation division No.76, and bounded on: East by : Private Property West by : Seppings Road North by : Pettigrew Street South by : Premises No. 104-C, MEASURING East by : 50’5/8th Feet; West by : 50 ½ Feet; North by : 17 ½ Feet; South by : 15 ¼ Feet. SCHEDULE ‘B’ PROPERTY All that piece and parcel of the immovable property, East to West 38 feet, North to South 16 feet, totally measuring 608 Sqft together with 3 floors constructed structure, and bounded on East by : Road West by : Private Property North by : Property belonging to Syed Attaulla South by : Property belonging to Syed Dastagir - 14 - NC: 2025:KHC:15888 RFA No. 53 of 2023 SCHEDULE ‘C’ PROPERTY All that piece and parcel of the immovable property bearing No.8, C No. 2nd Street, Chandni Chowk Road Cross, Shivajinagar, Bangalore, measuring 780 Sqft consisting of Ground, 1st Floor and 2nd Floor. SCHEDULE ‘D’ PROPERTY All that piece and parcel of the immovable property bearing No.28, Brigade Road, Corporation division 60 civil station, Bangalore, measuring 1518 Sqft and bounded on the: East by : Brigade Road West by : Private Property North by : K. Abdul Rashid Property South by : Richmond Road. SCHEDULE ‘E’ PROPERTY Rs. 20 Lakhs (Rupees Twenty Lakhs only) in cash and 1 K.G of Gold, 5 K.G silver which is clearly described and specifically mentioned hereunder and hereinafter referred to as Schedule ‘E’ property. SCHEDULE ‘F’ PROPERTY Property bearing no.162, 163, 2nd floor residential portion situated at Pettigrew Street, Seppings Road Cross, Bengaluru-560001. East by : Private Property West by : Seppings Road North by : Pettigrew Street South by : portion bearing no.164 of the same property - 15 - NC: 2025:KHC:15888 RFA No. 53 of 2023 SCHEDULE ‘G’ PROPERTY Property bearing no.162, 163, 1st floor non-residential portion situated at Pettigrew Street, Seppings Road Cross, Bengaluru-560001 East by : Private Property West by : Seppings Road North by : Pettigrew Street South by : portion bearing no.164 of the same property SCHEDULE ‘H’ PROPERTY Property bearing no.164, 1st floor non-residential portion situated at Pettigrew Street, Seppings Road Cross, Bengaluru-560001 East by : Private Property West by : Seppings Road North by : portion bearing no.163 of the same property South by : portion bearing no.165 of the same Property SCHEDULE ‘J’ PROPERTY Property bearing no.164, 165, 2nd floor residential portion situated at Pettigrew Street, Seppings Road Cross, Bengaluru-560001 East by : Private Property West by : Seppings Road North by : portion bearing no.163 of the same property South by : Private property - 16 - NC: 2025:KHC:15888 RFA No. 53 of 2023 WHEREFORE, the appellant, respondents 1 to 4, 6 and 7 above named pray that this honourable court be pleased to dispose of the above appeal in terms of the compromise petition and direct the office to draw decree in terms thereof and direct the parties to bear their own costs of the suit and further reserve liberty to the parties to get the above compromise petition drawn on requisite stamp paper and get the same registered before the jurisdictional Sub Registrar and pass such other necessary orders in the interest of justice.” 3. The said Application has been duly signed by the appellant, GPA holder of respondent Nos.1, 3 and 4 i.e., respondent No.2, respondent Nos.6 and 7 and their respective counsel. 4. Appellant, GPA holder of respondent Nos.1, 3 and 4 i.e., respondent No.2 and respondent Nos.6 and 7 are physically present before the Court and they admit that they have entered into settlement voluntarily. All parties have accepted the terms and conditions of the aforesaid Memorandum of Settlement and they are identified by their respective counsel. 5. Being satisfied with the terms and conditions contained in the Memorandum of Settlement, the appeal stands disposed of in terms of the Memorandum of Settlement by modifying the impugned judgment and decree passed by the Trial Court and substituting the same with the terms and conditions of the said * Retyped and replaced vide Chamber order dated 03.05.2025 - 17 - NC: 2025:KHC:15888 RFA No. 53 of 2023 Memorandum of Settlement. Registry is directed to draw up decree accordingly. 6. Registry of this Court is directed to refund the entire (100%) Court fee paid by the appellant on the Memorandum of Appeal back to the appellant, forthwith, without any delay. 7. Registry of the Trial Court is directed to refund the entire (100%) Court fee paid by the respondent – plaintiff on the plaint back to the respondent – plaintiff immediately upon receipt of a copy of this order. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC List No.: 1 Sl No.: 5