Karnataka High Court
Tootamma W/O Thippanna Pirang Since ... vs Smt Ghalamma on 6 November, 2025
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2025:KHC-K:6612
RSA No. 200376 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO.200376 OF 2025
(PAR/POS)
BETWEEN:
TOOTAMMA W/O THIPPANNA PIRANGI,
SINCE DECEASED BY LR'S.
1. LAXMIBAI W/O BABU,
AGE: 55 YEARS, OCC: HOUSEHOLD.
2. SHARANAPPA S/O BABU,
AGE: 35 YEARS, OCC: AGRICULTURE,
ALL R/O. GOWDANALI VILLAGE,
TQ. CHINCHOLI, DIST. KALABURAGI-585301.
Digitally signed by
SHIVALEELA ...APPELLANTS
DATTATRAYA
UDAGI
Location: HIGH
COURT OF
(BY SRI. AMEET KUMAR DESHPANDE, SENIOR COUNSEL FOR
KARNATAKA SMT. SUJATA, ADVOCATE)
AND:
SMT. GHALAMMA W/O MOGHALAPPA,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. CHINCHOLI, TQ. CHINCHOLI,
KALABURAGI-585307.
...RESPONDENT
(RESPONDENT SERVED)
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NC: 2025:KHC-K:6612
RSA No. 200376 of 2025
HC-KAR
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 18.06.2022 PASSED IN
R.A.NO.6/2019, ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC COURT AT CHINCHOLLI CONFIRMING THE JUDGMENT
AND DECREE DATED 26.06.2018 PASSED IN O.S.NO.18/2016
ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, CHINCHOLLI
AND TO PASS ANY OTHER ORDER IN THE CIRCUMSTANCES OF
THE CASE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) The defendants are before this Court being aggrieved by the judgment and decree dated 26.06.2018 passed in O.S.No.18/2016 on the file of Prl. Civil Judge and JMFC, Chincholi (hereinafter referred to as 'the Trial Court' for -3- NC: 2025:KHC-K:6612 RSA No. 200376 of 2025 HC-KAR short) decreeing the suit of the plaintiff for partition and separate possession, which is confirmed by the judgment and order dated 18.06.2022 in R.A.No.6/2019 on the file of Senior Civil Judge and JMFC, Chincholi (hereinafter referred to as 'the First Appellate Court' for short).
02. The above suit is filed by the plaintiff / respondent herein for partition and separate possession for the following properties:-
I. Land bearing Sy.No.109/4 measuring 09
acres 10 guntas.II. Land bearing Sy.No.115 measuring 03
acres 23 guntas.III. Land bearing Sy.No.111/5/U measuring 03
acres 32 guntas.
All situated at Goudanahalli village Chincholi Taluka (herein referred to as 'suit properties').
03. It is contended inter-alia that one Tippanna, the original propositus, passed away about 32 to 33 years ago leaving behind his wife Smt. Tootamma and two daughters namely the plaintiff and defendant No.2. After his demise suit properties were transferred in the name of his wife -4- NC: 2025:KHC-K:6612 RSA No. 200376 of 2025 HC-KAR Smt. Tootamma. That the suit properties stood in the joint possession and enjoyment of the plaintiff and defendants No.1 and 2. Defendant No.2 without the knowledge of the plaintiff, transferred the suit schedule properties in the name of her son - defendant No.3. Defendant No.3 taking advantage of his name appearing in the records was acting detriment to the interest of plaintiff. That the plaintiff being entitled for her share had requested for partition and allotment of share which was refused, resulting in she filing the suit.
04. In the written statement the defendants No.1 to 3 denied the plaint averments, however, the relationship between parties is admitted. It is contented that after the demise of Tippanna, as he had no male issues, the husband of defendant No.2 lived with the family of the defendants. Defendants had made huge investments and incurred expenses for the marriage of the plaintiff and the marriage of her daughter. The plaintiff had consented before the elders of Gaudanahalli, Chincholli and Chimmaidali villages that she would not seek her share in the suit properties. As such, defendants No.1 and 2 had -5- NC: 2025:KHC-K:6612 RSA No. 200376 of 2025 HC-KAR transferred the suit properties in the name of defendant No.3, but since the plaintiff had relinquished her share in the properties, she was not entitled for the share, Accordingly, sought for dismissal of the suit.
05. The Trial Court framed the following issues:
1. Whether plaintiff proves that she is in the joint possession over the suit schedule properties with the defendants.?
2. Whether plaintiff proves that 3rd defendant is illegally transferred suit schedule properties in his name?
3. Whether the defendants proves that the plaintiff is relinquish her rights in the suit schedule properties?
4. Whether the defendant proves that this court has no pecuniary jurisdiction to try this suit?
5. Whether the plaintiff is entitled for relief as sought?
6. What order or decree?
06. Plaintiff examined herself as PW.1 and produced 03 documents as per Ex.P.1 to 3. The defendants No.3 examined as DW.1 and three other witness as DW.2 to DW.4 and marked 07 documents as per Exs.D.1 to Ex.D.7. On appreciation of evidence, the Trial Court answered issues in the affirmative and consequently, decreed the suit, as noted above.
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07. Being aggrieved, the defendants preferred the appeal in R.A.No.6/2019. The First Appellate Court considering the grounds urged framed the following points for its consideration :-
1. Whether the Trial Court committed error in decreeing the suit of the plaintiff without considering the facts of the case and evidence on record?
2. Whether the judgment and decree under appeal is erroneous, illegal and against to the facts the case, thereby warranting interference by this Court?
3. Whether the judgment and decree of the Trial Court under appeal is liable to be declared null and void for want of pecuniary jurisdiction?
4. What order?
08. On re-appreciation of evidence, answered points No.1 to 3 in the negative and confirmed the judgment and decreed passed by the Trial Court and dismissed the appeal. Being aggrieved the same, the present appeal.
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09. Along with the appeal, an application in I.A.No.1/2025 is filed seeking condonation of delay of 950 days in filing the appeal. The affidavit accompanying the said application reads as under:
AFFIDAVIT "I, Sharanappa S/o Babu, Age: 26 years, Occ:
Agriculture, R/o Gowdanalli village, Tq: Chincholi, Dist: Kalaburagi, today at Kalaburagi, do hereby state on oath as under;
1. That, the deponent is the appellant No.2 in the above case and hence knows facts of the case and also swears for appellant No.2.
2. That, being aggrieved by the judgment and decree dated: 18.06.2022, passed in R.A. No:6/2019 on the file of Senior Civil Judge & JMFC at Chincholi, this appeal is preferred by delay as the deponent and other appellants have not obtained the copy of the judgment and decree in time due to ill-health, the appellants fell ill, and also due financial problems the delay is caused obtained certified copy of the judgment and decree of the trial court and first appellate court.
3. That, if the application is allowed, the respondents will not put to any injury or hardship and if application is not allowed the deponent appellant put to great hardship and irreparable loss and also put to multiplicity of litigation, hence the same may be allowed.
Hence, this affidavit".
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10. Except purported financial difficulty and ill- health, nothing is pleaded. Further, no material is produced as to the ill-health which the appellants were purportedly suffering from. The reasons assigned in the affidavit accompanying the application do not meet the requirement of 'sufficient cause' contemplated under Section 5 of the Limitation Act. As such, no grounds are made out for condonation of inordinate delay of 950 days. Apposite in this regard to refer the judgment of the Apex Court in the case of Brijesh Kumar and Others vs. State of Haryana and Others reported in (2014) 11 SCC 351 at Paragraph No.10 it has been held that-
"10. The courts should not adopt an injustice- oriented approach in rejecting the application for condonation of delay. However, the Court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic grounds alone."-9-
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11. Notwithstanding the same as noted above, the Trial Court and the First Appellate Court have declined to accept the contention of the defendants of plaintiff having orally relinquished her share right, title and interest in the suit schedule property. Relinquishment of any share, right, title or interest in respect of an immovable property value of which exceeds Rs.100/- shall be made in accordance with provisions under Section 17 of the Registration Act. That not having been done, even on the merits, no grounds to interfere in the matter.
12. I.A.No.1/2025 filed seeking condonation of delay of 950 days is rejected. Consequently, appeal is dismissed.
13. It is submitted that Smt. Tootamma-defendant No.1, the mother of the parties is no more. The parties are at liberty to seek adjustment of equities in final decree proceedings pending consideration.
Sd/-
(M.G.S.KAMAL) JUDGE KJJ,SDU LIST NO.: 1 SL NO.: 60 CT:PK