Karnataka High Court
The Agricultural Produce Market ... vs State Of Karnataka on 4 November, 2024
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NC: 2024:KHC-D:16074
RSA No. 100355 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100355 OF 2016 (DEC)
BETWEEN:
THE AGRICULTURAL PRODUCE
MARKET COMMITTEE, LAXMESHWAR,
DIST. GADAG-582101
REP. BY ITS SECRETARY.
... APPELLANT
(BY SRI. RAJASHEKHAR B. HATTI, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REP. BY DEPUTY COMMISSIONER,
Digitally
GADAG DISTRICT, GADAG-582101.
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.20
12:14:51
2. LAND ACQUISITION OFFICER,
+0530
AND ASST. COMMISSIONER,
GADAG DIVISION, GADAG-582101.
NINGAPPA S/O. LAXMAPPA HADPAD,
SINCE DECEASED BY HIS LRS.,
3. CHANNAPPA S/O. NINGAPPA HADPAD,
AGED ABOUT 63 YEARS,
OCC. BARBER, R/AT: BASTI BAN,
LAXMESHWAR, DIST. GADAG-582101.
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NC: 2024:KHC-D:16074
RSA No. 100355 of 2016
4. SMT. BASAVVA
W/O. CHANDRASHEKHAR HADAGALI,
AGED ABOUT 61 YEARS,
OCC. HOUSEHOLD WORK,
NEAR CATTLE MARKET, NEAR BUS STAND,
HAVERI, TQ AND DIST. HAVERI-581110.
5. MAHADEVAPPA S/O. NINGAPPA HADPAD,
AGED ABOUT 59 YEARS, OCC. BARBER,
R/AT. BASTI BANA, LAXMESHWAR,
DIST. GADAG-582101.
6. SMT. MALLAVVA
W/O. VEERBHADRAPPA HADPAD,
AGED ABOUT 57 YEARS,
OCC. HOUSEHOLD WORK,
R/AT. NEAR BUS STAND,
SHIGGAON, DIST. HAVERI-581110.
7. ADAPPA S/O. NINGAPPA HADPAD,
AGED ABOUT 55 YEARS,
OCC. GOVERNMENT SERVICE,
R/O. NEELGARPETH, BASTI BAN,
LAXMESHWAR, DIST. GADAG-582101.
8. LAXMAN S/O. NINGAPPA HADPAD,
AGED ABOUT 52 YEARS,
OCC. BARBER, R/O: NEELGARPETH,
BASTI BAN, LAXMESHWAR,
DIST. GADAG-582101.
9. SOMANNA S/O. NINGAPPA HADPAD,
AGED ABOUT 41 YEARS,
OCC. BARBER, R/O: NEELGARPETH,
BASTI BAN, LAXMESHWAR,
DIST. GADAG-582101.
10. SMT. GIRIJAVVA W/O. DUNDAPPA HADPAD,
AGED ABOUT 45 YEARS,
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NC: 2024:KHC-D:16074
RSA No. 100355 of 2016
OCC. HOUSEHOLD WORK, R/O. KALALKOND,
TQ. SAVANUR, DIST. HAVERI-581110.
11. SMT. LAXMAVVA
W/O. MAHANTESH ADARGUNCHI,
AGED ABOUT 51 YEARS,
OCC. HOUSEHOLD WORK,
R/O. ADARGUNCHI, TQ. HUBBALLI,
DIST. DHARWAD-580001.
12. IRAPPA S/O. LAXMAPPA HADPAD,
AGED ABOUT 85 YEARS,
R/O. NEAR RAMALINGESHWAR TEMPLE,
GOKUL ROAD, HUBBALLI.
13. VEERABHADRAPPA S/O. LAXMAPPA HADPAD,
SINCE DECEASED BY HIS LRS
13A. SMT. PUTTAWWA@ SHANTAWWA
W/O. HANUMANTHAPPA HADAPAD,
AGE: 50 YEARS, OCC. AGRICULTURE,
R/O. HARTI, TQ. GADAG, DIST. GADAG.
(DECEASED)
13B. SRI. RUDRAPPA S/O. VEERABHADRAPPA
HADAPAD,
AGE: 48 YEARS, OCC. SALOON,
R/O. BASTIBAN-LAXMESHWAR,
TQ. SHIRAHATTI, DIST. GADAG.
13C. SMT. ANSAWWA @ NEELAWWA
W/O. YALLAPPA HADAPAD,
AGE: 46 YEARS, OCC. AGRICULTURE,
R/O. SOUNSHI, TQ. KUNDAGOL, DIST.
DHARWAD.
13D. SMT. HIRIYAKKA @ IRAWWA
W/O. SHIVAYOGAPPA HADAPAD.
AGE: 44 YEARS, OCC. HOUSEHOLD,
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NC: 2024:KHC-D:16074
RSA No. 100355 of 2016
R/O. SHIRABADAGI, TQ. SAVANUR, DIST.
HAVERI.
13E. SRI. YALLAPPA
S/O. VEERABHADRAPPA HADAPAD,
AGE: 34 YEARS, OCC. SALOON,
R/O. BASTIBAN-LAXMESHWAR,
TQ. SHIRAHATTI, DIST. GADAG.
13F. SMT. RENUKA @ MAHADEVI
W/O. MAHANTESH DODAMANI,
AGE: 31 YEARS, OCC. AGRICULTURE,
R/O. ALAKATTI, TQ. KALGHATGI,
DIST. DHARWAD.
14. SHIVAPPA S/O. LAXMAPPA HADPAD,
AGED ABOUT 75 YEARS,
OCC. AGRICULTURE AND BARBER,
R/O. NEELGARPETH, BASTI BANA,
LAXMESHWAR.
15. IRAPPA S/O. BASAVENAPPA HADPAD,
AGED ABOUT 48 YEARS,
OCC. AGRICULTURE AND BARBER,
R/O. NEELGARPETH, BASTI BANA,
LAXMESHWAR.
16. GURUPADAPPA S/O. TIPPANNA HADPAD,
SINCE DECEASED BY HIS LRS
16A. IRAWWA W/O. HANUMANTHAPPA HADAPAD,
AGE: 46 YEARS, OCC. AGRICULTURE,
R/O. ARALIKATTI, TQ. KUNDAGOL,
DIST. DHARWAD.
16B. VEERABADRAPPA S/O. GURUPADAPPA
@GUDADURAPPA HADAPAD,
AGE: 43 YEARS, OCC. AGRICULTURE,
R/O. NEELAGARPETH, BATIBAN-LAXMESHWAR,
TQ. SHIRAHATTI, DIST. GADAG.
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NC: 2024:KHC-D:16074
RSA No. 100355 of 2016
16C. SMT. RATNAWWA
W/O. KALLAPPA HADAPAD,
AGE: 41 YEARS, OCC. AGRICULTURE,
R/O. NEAR COURT COMPLEX, KUNDAGOL,
Q. KUNDAGOL, DIST. DHARWAD.
17. RACHAPPA S/O. TIPPANNA HADPAD,
AGED ABOUT 55 YEARS,
OCC. AGRICULTURE AND BARBER,
R/O. NEELGARPETH,
BASTI BANA, LAXMESHWAR.
... RESPONDENTS
(BY SMT. KIRTILATA PATIL, HCGP FOR R1 AND R2;
SRI. C.S.SHETTAR, ADVOCATE FOR
SRI. G.K.HIREGOUDAR, ADVOCATE FOR R3 TO R11,
R13(B TO F) AND R16(A,B);
R3 TO R8, R10 AND R11 REPRESENTED BY GPA R9;
R13(B TO F) ARE TREATED AS LRS OF DECEASED R13(A);
R13(A)DECEASED;
R12, R14, R15, R16(C) AND R17 ARE SERVED AND
UNREPRESENTED)
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED IN
R.A.NO.2/2011 DATED 16.02.2016 ON THE FILE OF THE
ADDL. DISTRICT AND SESSIONS JUDGE AT GADAG,
CONFIRMING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.287/2003 DATED 16.04.2008 ON THE FILE OF
CIVIL JUDGE (SR.DIVN) AND CJ, GADAG AND DISMISS
THE SUIT OF THE PLAINTIFF AND PASS ANY OTHER
ORDERS AS THIS HONBLE COURT DEEMS FIT TO GRANT
IN THE CIRCUMSTANCES OF HE CASE, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:16074
RSA No. 100355 of 2016
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA) Agricultural Produce Market Committee - the defendant No.1 (hereinafter referred to as 'APMC' for short) is before this Court in the regular second appeal assailing the judgment and decree in RA No.2/2011 dated 16.02.2016 on the file of the Additional District and Sessions Judge, Gadag (hereinafter referred to as 'First Appellate Court' for short), whereby, IA No.2 filed by the appellant under Section 5 of the Limitation Act, came to be dismissed and consequently, the appeal preferred by the appellant also came to be dismissed,
2. Heard the learned counsel appearing for the appellant and learned counsel appearing for the respondents.
3. Learned counsel appearing for the appellant submits that the First Appellate Court without appreciating the explanation offered for condoning the delay in -7- NC: 2024:KHC-D:16074 RSA No. 100355 of 2016 preferring the appeal has dismissed the IA and consequently, dismissed the appeal.
4. It is contended by the appellant that an opportunity needs to be accorded to the appellant, as dismissing the appeal on the ground of delay without giving an opportunity to contest the matter on merits has led to miscarriage of justice. According to the learned counsel, 1 acre of land which the plaintiff is seeking for declaration and possession is excess pot karab land belonging to the Government and the trial Court has erroneously come to a conclusion that 1 acre of land belongs to the plaintiff and grants decree in favor of the plaintiff. Learned counsel submits that an opportunity needs to be afforded to the appellant by condoning the delay in preferring the appeal and the matter to be remitted back to the First Appellate Court and consider on merits.
5. Per contra, learned counsel appearing for the respondents submits that the appellant having participated -8- NC: 2024:KHC-D:16074 RSA No. 100355 of 2016 in the Execution Petition instituted by the respondents, only after delivery warrant was issued, the appellant has sought to prefer an appeal before the First Appellate Court along with IA No.2 seeking to condone the delay of 920 days. The appellant having not shown his bonafides and sufficient cause to condone the inordinate delay, the First Appellate Court has rightly dismissed the appeal. It is submitted that the judgment of the First Appellate Court in dismissing the appeal on the ground of delay does not warrant any interference by this Court.
6. Suit for declaration and possession to declare that 1 acre land in RS No.89/2A is of the ownership of the plaintiff. Undisputed fact is that RS No.89/2A is the ancestral property of the plaintiff and is totally measuring 6 acres 37 guntas and under 4(1) notification of the Land Acquisition Act, 5 acres 37 guntas was acquired for the purpose of APMC and award was passed on 12.11.1987.
7. Before the trial Court, in order to substantiate their claim, plaintiff No.3 examined himself as PW.1 and -9- NC: 2024:KHC-D:16074 RSA No. 100355 of 2016 marked documents at Ex.P.1 to Ex.P.13. On the other hand, defendant No.1 examined himself as DW.1.
8. From the material on record makes it clear that an extent of RS No.89/2 measures 6 acres 37 guntas and later on it was divided as RS No.89/2A measuring 1 acre and RS No.89/2B measuring 5 acres 37 guntas and the acquisition proceedings was in respect of 5 acres 37 guntas acquired by the APMC.
9. The contention of the plaintiff is that the defendant No.1 is in possession of 1 acre land i.e., the suit property and there is an encroachment made by defendant No.1. The defendant No.1 other than stating that he is not in possession of an extra 1 acre in RS No.89/2A, nothing is forthcoming either in the pleadings/ written statement or in his evidence. The trial Court based on the pleadings and oral and documentary evidence arrived at a conclusion that the plaintiffs are the owners of land of 1 acre in land bearing RS No.89/2A also shown as RS No.89/2B in award of other revenue records and directed the defendant No.1
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NC: 2024:KHC-D:16074 RSA No. 100355 of 2016 to hand over the possession of the suit land to the plaintiff.
10. The appeal was preferred before the First Appellate Court by the defendant No.1, along with an appeal, application - IA No.2 was filed under Section 5 of the Limitation Act, seeking to condone the delay of 920 days in filing the appeal. The suit of the plaintiff came to be decreed on 16.04.2008, execution was levied by the respondent/ plaintiff in EP No.47/2009. Notice was issued in EP No.47/2009 to the appellant herein who was arrayed as judgment Debtor No.1, judgment Debtor No.1- appellant was represented by counsel and the proceedings went on from the year 2009, only when delivery warrant was issued on 04.11.2011 seeking to appoint a Court Commissioner. The appellant chose to prefer an appeal before the First Appellate Court in RA No.2/2011.
11. Learned counsel for the appellant placing reliance on the decision of the Hon'ble Apex Court in the case of Raheem Shah and Another Vs. Govind Singh
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NC: 2024:KHC-D:16074 RSA No. 100355 of 2016 and others1 submits that refusing to condone the delay results in a meritorious matter being thrown out at the very threshold and the cause of justice is being defeated.
12. This Court has absolutely no quarrel to the settled proposition of law that, the sufficient cause "employed by the Legislation is adequately elastic to enable the Courts to apply the law in meaningful manner and to sub-serve the ends of justice" and a liberal approach in a matter instituted before the Court with the delay has to be considered in a liberal manner. But there is an exception to such a rule as the delay cannot be condoned, if it is occasioned by deliberate, negligence and not with bonafide reasons and when no sufficient cause is made out by the party to condone the delay, the principles of natural justice and the sufficient cause cannot be extended to such an extent that there would be abuse of process of law.
1 Civil Appeal No.4328/2023
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13. In the instant case, the decision in Raheem Shah placed reliance by the appellant is not applicable to the present facts and distinguishable in light of the sole ground that in the instant case that the appellant participated in the execution proceedings and only when a delivery warrant was issued, the appellant has approached the First Appellate Court by filing an appeal. No sufficient grounds were made out by the appellant to condone the inordinate delay of 920 days in preferring the appeal, which is rightly considered by the First Appellate Court. The appellant has made out no grounds to interfere with the order of the First Appellate Court. In so far as the contention raised by the appellant that 1 acre of land is a pot karab land, such a contention does not find place in the written statement and thus it is not available for the appellant to raise the said ground for the first time before this Court, in the absence of any claim made in the suit.
14. The appeal has been rightly dismissed on the ground of delay by the First Appellate Court warranting no
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NC: 2024:KHC-D:16074 RSA No. 100355 of 2016 interference in the second appeal and there arises no substantial question of law to be considered under Section 100 CPC and this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
(ii) The judgment and decree of the Courts below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA) PJ/ Ct-PA LIST NO.: 2 SL NO.: 9