The court ruled that failure to challenge prior judgments related to a partition agreement signifies acceptance of its validity, binding all parties involved.

JUDGMENT :

Anant Ramanath Hegde, J.

This appeal is against the concurrent finding in the suit for specific performance to enforce the agreement for partition dated 13.12.1993.

2. The suit is filed on the premise that the suit property was granted to the family of the appellants and respondents by the Land Tribunal on an application filed under Form No. 7 seeking occupancy right.

3. The suit was resisted on the premise that no such agreement was entered into between the parties.

4. The trial Court rejected the defendant's contention and the suit is consequently decreed. The defendant filed the first appeal. The first appeal is also dismissed, concurring with the findings supported by the trial Court. Hence the present second appeal.

5. Learned counsel appearing for defendants/appellants would submit as under:

Originally one Gopalanayak held the property as a tenant and died intestate. He had 4 sons namely Manjappa, Kalsappa, Hoovappa and Vasappa. On 05.04.1959, four brothers partitioned the family properties and the suit property was allotted to the share of Manjappa. Hoovappa, the brother of Manjappa, filed a suit in OS No. 388/1978 for partition and separate possession and the said suit was renumbered as OS No. 104/1982. The said suit was dismissed on 07.04.1983 on the premise that there is already a partition in respect of the suit property.

6. Plaintiff further claims that against the said judgment and decree, an appeal is filed in RA No.37/1983 and said appeal is also dismissed on 22.03.1989. Then the defendant Hoovappa filed RSA No.489/1989 and the said appeal is dismissed on 17.09.1997.

7. It is also stated that initially Form No.7 was filed by Manjappa's wife Parvathamma seeking occupancy right and said application was allowed and the counter claim by Hoovappa seeking occupancy right was rejected by the Tribunal. Challenging the said order, Writ Petition No.4421/1982 was filed and said writ petition was allowed and the matter was remanded to the Tribunal for fresh consideration in terms of order dated 05.04.1983. Further, the Tribunal granted occupancy right to Hoovappa as well as Parvathamma and other 2 members of the family. The said order was questioned by Parvathamma by filing WP.No.39229/1992. When WP No.39229/1992 and RSA No. 489/1989 were pending consideration, without the knowledge of Parvathamma, an application is filed stating that the parties have entered into an agreement to partition the suit properties despite the counsel for Paravathamma pleading ignorance about the alleged settlement. Writ Petition No.39229/1992 was dismissed vide order dated 26.08.1999. Consequently, based on the similar submission that the dispute is settled in terms of the partition agreement dated 13.12.1993, RSA No.489/1989 was also dismissed on 17.09.1997.

8. Learned counsel for appellants would further submit that challenging the order of dismissal in WP No.39229/1992, the Writ Appeal was filed and the same was disposed of, reserving liberty to appellant in the writ appeal to file a Review Petition assailing the order passed in Writ Petition No.39229/1992. It is submitted that Review petition No. 55/2002 was dismissed on the ground of delay.

9. In the light of aforementioned facts and circumstances, learned counsel for the appellants would submit that the Plaintiffs/respondents filed OS No.227/1996 for specific performance of the contract for partition and same is decreed on the premise that Parvathamma agreed to accept Rs.70,000/- in lieu of sharing the f