RSA 577/2019
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
R.S.A.No.577/2019
BETWEEN:
1. NEELAMMA
W/O LATE PUTTAPPA,
AGED ABOUT 77 YEARS,
2. HUCHAPPA.J. P.
S/O LATE PUTTAPPA,
AGED ABOUT 57 YEARS,
3. GANESHAPPA
S/O LATE PUTTAPPA,
AGED ABOUT 55 YEARS,
4. VIVEKANANDA J. P. @ VIVEKAPPA
S/O LATE PUTTAPPA,
AGED ABOUT 50 YEARS,
5. SUSHEELAMMA
D/O LATE PUTTAPPA,
AGED ABOUT 38 YEARS,
6. SAVITHRAMMA
D/O LATE PUTTAPPA,
AGED ABOUT 36 YEARS,
7. KRISHNAVENI
D/O LATE PUTTAPPA,
AGED ABOUT 34 YEARS,
8. MALATHI
D/O LATE PUTTAPPA,
AGED ABOUT 34 YEARS,
9. SHASHIKALA
D/O LATE PUTTAPPA,
RSA 577/2019
2
AGED ABOUT 30 YEARS,
APPELLANTS 1 TO 10 ARE RESIDENTS
OF KITTADAHALLI,
SHIKARIPURA TALUK-577 427,
SHIVAMOGGA DISTRICT.
10. R. RENUKAMMA
D/O LATE PUTTAPPA,
AGED ABOUT 54 YEARS,
R/O JAYANAGARA,
SHIKARIPURA TOWN-577 427,
SHIVAMOGGA DISTRICT. ... APPELLANTS
(BY SRI P.N.HARISH, ADV.)
AND:
1. BHARMAKKA
W/O ADIVEPPA,
AGED BAOUT 81 YEARS,
2. NAGAPPA
S/O ADIVEPPA
SINCE DEAD BY HIS LRS.
2(A) ANUSUYAMMA
W/O NAGAPPA,
2(B) CHAITRA
D/O NAGAPPA
2(C) RANGAPPA
S/O NAGAPPA
2(D) AANJANAPPA
S/O NAGAPPA
CAUSE TITLE AMENDED
AS PER THE ORDER DATED 23.11.2021
OF THIS HON'BLE COURT.
3. SHEKARAPPA
S/O ADIVEPPA,
AGED ABOUT 44 YEARS,
RESPONDENTS 1 TO 3 ARE
RESIDENTS OF KITTADAHALLI,
SHIKARIPURA TALUK-577 427,
RSA 577/2019
3
SHIVAMOGGA DISTRICT.
4. SHANTHAMMA
W/O BHOODYAPPA
AGED ABOUT 46 YEARS,
R/O MUGALIKOPPA VILLAGE,
SHIKARIPURA TALUK-577 427
SHIVAMOGGA DISTRICT.
5. RENUKAMMA
W/O GADIGEPPA
AGED ABOUT 41 YEARS,
R/O KALKOPPA VILLAGE,
SORABA TALUK-577 429,
SHIMOGA DISTRICT. ... RESPONDENTS
(BY SRI K.B.LOKANATH, ADV. FOR R1, R2(A) TO (D),
R3 TO R5;
V/O DATED:09.11.2021-APPEAL IS
DISMISSED AS AGAINST R2 IS ABATED)
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 31.01.2019 passed
in RA.No.47/2017 on the file of the Senior Civil Judge and
JMFC, Shikaripura, dismissing the appeal and filed against the
judgment and decree dated 31.01.2014 passed in
O.S.No.74/2003 on the file of the Civil Judge, Shikaripura.
This appeal coming on for admission, this day, the Court
delivered the following:
JUDGMENT
1. This Regular Second Appeal is filed by the defendants challenging the judgment and decree dated 31.01.2014 passed by the Court of Civil Judge & JMFC, Shikaripura, in O.S.No.74/2003, which has been confirmed in R.A.No.47/2017 vide judgment and decree RSA 577/2019 4 dated 31.01.2019 passed by the Court of Senior Civil Judge & JMFC, Shikaripura.
2. For the sake of convenience, the parties are referred to by the rank assigned to them in the court at first instance.
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are, the plaintiffs had filed O.S.No.74/2003 before the Trial Court against the defendants seeking partition and separate possession of their half share in the suit schedule properties and also for mesne profits.
4. It is the case of the plaintiffs that plaintiff no.1 - Bharamakka is the wife of Adiveppa, plaintiffs 2 to 5 are the sons and daughters of plaintiff no.1 through Adiveppa. Adiveppa and the original defendant - G.Puttappa are direct brothers and they are the sons of one late Bheemappa. During the life time of Bheemappa, he was managing the affairs of the joint family properties and after RSA 577/2019 5 his death, Puttappa being his eldest son continued to manage the affairs of the joint family properties which are described in Item nos.1 & 2 of the suit schedule property. After the death of Bheemappa, the revenue entries in respect of the suit schedule properties which are the ancestral joint family properties were mutated in the name of defendant no.1 - Puttappa. Out of the income from Item nos.1 & 2 of the suit schedule property, defendant no.1 had purchased Item nos.3 & 4 of the suit schedule property and even the said property was always treated as the joint family property and never as the separate property of defendant no.1. Defendant no.1 was working in a Veterinary Department and though the suit schedule properties stood in his name, it was the husband of plaintiff no.1 - late Adiveppa who was looking after the agricultural operations of the suit schedule properties. Taking undue advantage of the factum that the revenue records stood in his name, defendant no.1 denied the rights of the plaintiffs over the suit schedule properties, and therefore, the plaintiffs were constrained to file the RSA 577/2019 6 suit in O.S.No.74/2003 against the original defendant - G.Puttappa.
5. The original defendant - G.Puttappa, after service of suit summons, had entered appearance and filed written statement contending that there was a oral partition between himself and his brother Adiveppa in respect of the ancestral joint family properties and in the said partition, Item nos.1 & 2 of the suit schedule property had fallen to his share. He had further contended that Item no.3 of the suit schedule property was purchased by him out of his retirement benefits. He contended that Adiveppa had no right over the suit schedule properties. He had filed an application before the Tahsildar seeking change of revenue entries in respect of Item no.1 of the suit schedule property and the order passed by the Tahsildar in favour of Adiveppa was questioned by the defendant before the Appellate Authority and the same was set aside. He also contended that there are certain other properties in the name of plaintiffs 2 & 3 and without including the said properties, the suit was not maintainable.
RSA 577/2019 7
6. During the pendency of the suit, the original defendant died and his legal representatives were brought on record and they have filed additional written statement reiterating the contentions of their father and they also further contended that their father had purchased Item no.4 of the suit schedule property on 24.10.1997 and it was his self-acquired property.
7. On the basis of the rival pleadings, the Trial Court had framed the following Issues and Additional Issues:
Issues
1) Whether the plaintiffs prove that the suit properties are their joint family properties and they got right to claim share in it?
2) Whether the defendant proves that the item nos.1 & 2 of the suit properties were fallen to his share as per the oral partition of the year 1939?
4) Whether the suit is properly valued for the purpose of court fee and jurisdiction?
5) Whether this Court lacks the pecuniary jurisdiction to try this suit?
RSA 577/2019 8
6) Whether the plaintiffs are entitled for the relief claimed in the suit?
7) Whether the plaintiffs are entitled for the mesne profits? If so, from whom? And at what rate?
8) What order or decree?
Recasted Issue no.3: Whether the defendants prove that the Item nos.3 & 4 of the suit schedule properties are the self-acquired and absolute properties?
Additional Issues
1) Whether the defendants prove that properties stated in W.S. Khaneshumari Nos.44/A & 44/B of Kittadahalli village are the joint family properties?
2) Whether the plaintiffs prove that property in K.No.44/B is the separate property of plaintiff?
8. During the course of trial, to substantiate their case, plaintiff no.1 got examined herself as PW-1 and another witness was examined as PW-2. Twenty documents were produced and marked as Exs.P-1 to P-20. On behalf of the defendants, defendant no.1(c) was examined as DW-1 and RSA 577/2019 9 48 documents were produced and marked as Exs.D-1 to D-48. The Trial Court, thereafter, heard the arguments on both sides and by its judgment and decree dated 31.01.2014, has partly decreed the suit. The Trial Court held that the plaintiffs and defendants are entitled for half share in Item nos.1, 2 & 4 of the suit schedule property, while the suit was dismissed in respect of Item no.3 of the suit schedule property.
9. Being aggrieved by the said judgment and decree, defendants had filed R.A.No.47/2017 and since there was delay of 1017 days in preferring the appeal, IA no.1 was filed by the defendants under Section 5 of the Limitation Act read with Section 151 CPC for condoning the delay caused in filing the appeal. The First Appellate Court by its order dated 31.01.2019 has dismissed IA no.1 filed by the defendants and accordingly, R.A.No.47/2017 was also dismissed as barred by time. Being aggrieved by the same, the defendants are before this Court in this regular second appeal.
RSA 577/2019 10
10. Learned Counsel for the appellants/defendants and the learned Counsel for the respondents/plaintiffs jointly submitted that the appeal could be disposed of at the stage of admission, and accordingly, they have addressed their arguments.
11. Learned Counsel for the appellant submits that the First Appellate Court has erred in dismissing IA no.1 filed by the defendants under Section 5 of the Limitation Act though the defendants have given a satisfactory explanation for the delay caused in filing the regular appeal. He submits that the evidence of DW-1 - Ganeshappa before the Trial Court would go to show that the delay caused in the appeal was not intentional and bona fide. He submits that since the property rights of the parties are involved in the case, the First Appellate Court should have taken a liberal view and condoned the delay.
12. Learned Counsel for the respondents/plaintiffs submits that the inordinate delay of 1017 days was not properly explained and the First Appellate Court has RSA 577/2019 11 rightly dismissed the application filed by the defendants for condoning the delay and the said order does not call for any interference and accordingly, prayed to dismiss the appeal.
13. The only substantial question of law that arises for consideration in this appeal is, "Whether the First Appellate Court was justified in dismissing IA No.1 filed by the defendants under Section 5 of the Limitation Act having regard to the oral and documentary evidence available on record?"
14. The defendants had filed I.A.No.1 before the first appellate court with a prayer to condone the delay of 1017 days in preferring the appeal. The plaintiffs had filed their objections to the said application contending that the defendants have not produced any material in support of the explanation offered by them to condone the delay and since no sufficient cause is shown by the defendants for condoning the inordinate delay, they had prayed to dismiss the application filed under Section 5 of the Limitation Act by the defendants.
RSA 577/2019 12
15. In order to prove the contention of the defendants with regard to the explanation offered to condone the delay caused in filing the appeal, defendant No.1(c)/appellant No.1(c) was examined as PW-1 and one document was marked as Ex.P1. Plaintiff No.3/respondent No.3 had examined himself as RW-1 and got marked five documents as Exs.R1 to R5. In the affidavit filed in support of the application to condone the delay, it was specifically contended that defendant No.1(a)/appellant No.1(a) was not well and the other appellants were busy in their family commitments. The first appellate court has refused to accept the said reason assigned by the defendants on the ground that defendant No.1(a) was not the sole defendant and there were other defendants who had preferred the first appeal before the first appellate court and there is nothing on record to show that the other appellants were also not well and there is absolutely no reason assigned as to why the other appellants have not preferred the appeal in time. PW-1 has deposed before the first appellate court that defendants came to know about the judgment and RSA 577/2019 13 decree passed by the trial court belatedly i.e., only after the notice was received by them in the final decree proceedings and therefore, the appeal could not be filed in time. He has stated that after receipt of the notice in the final decree proceedings, the appeal was filed by the defendants before the first appellate court. The first appellate court has refused to accept the explanation offered on behalf of the defendants on the ground that the connected appeal in R.A.No.46/2017 was filed by the defendants as against the judgment and decree passed in the suit for injunction and the certified copy of the judgment and decree passed by the trial court in the said suit was applied on 01.02.2014 and the copy was ready on 28.02.2014 and delivered on 12.03.2014. The certified copy of the judgment and decree passed by the trial court, which was produced before the first appellate court in the present case, was admittedly applied for on 13.11.2017 and the copy was ready on 28.12.2017 and the same was delivered on 28.12.2017. Therefore, merely for the reason that the judgment and decree passed in another suit RSA 577/2019 14 which was disposed of by the trial court on the very same day, it cannot be said that even the certified copy of the judgment and decree in O.S.No.74/2003 was also applied by the defendants in the year 2014 itself, when the certified copy of the judgment and decree which has been produced by them before the first appellate court would go to show that the same was applied on 13.11.2017 and the copy was delivered to them on 28.12.2017. Therefore, a presumption cannot be drawn to the effect that the defendants knew about the impugned judgment and decree passed by the trial court in the year 2014 itself. Further, admittedly, the final decree proceedings were initiated by the plaintiffs only in the year 2015 and it is quite possible that the defendants came to know of the impugned judgment and decree passed by the trial court only after receipt of the notice in the final decree proceedings.
16. Under the circumstances, I am of the considered view that the first appellate court was not justified in dismissing the application I.A.No.1 filed by the defendants RSA 577/2019 15 for condoning the delay caused in filing the first appeal before the said court. It is a settled principle of law that the court should be liberal in condoning the delay caused in filing unless the same is not bonafide and intentional. In the case on hand, the defendants have given a plausible explanation for the delay caused in filing the appeal and it cannot be said that by causing the delay, the defendants would gain in the matter and therefore delay was intentional.
17. Under the circumstances, the question of law that arises for consideration in this appeal is required to be answered in the negative. Accordingly, the delay of 1017 days caused in filing the regular appeal by the defendants before the first appellate court is condoned and the matter is remitted to the first appellate court to hear the regular appeal on merits. Since the appeal arises from a judgment and decree in a suit filed in the year 2003, I am of the considered view that to meet the ends of justice, it would be necessary to direct the first appellate court to dispose of the appeal expeditiously. Accordingly, I pass the following;
RSA 577/2019 16 ORDER The regular second appeal is allowed. The judgment and decree dated 31.01.2019 passed in R.A.No.47/2017 by the court of Senior Civil Judge and J.M.F.C., Shikaripura, on I.A.No.1 rejecting the said application and consequently rejecting the regular appeal as barred by time, is hereby set aside.
The first appellate court is directed to hear the regular appeal in R.A.No.47/2017 on its merits and dispose of the same as expeditiously as possible, but not later than a period of six months from the date of receipt of certified copy of this order.
Sd/-
JUDGE KK/KNM/-