Karnataka High Court
Neelamma vs Bharmakka on 6 December, 2021
Bench: S Vishwajith Shetty
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,
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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,
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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
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
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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
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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.
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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?
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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
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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.
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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
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.
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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
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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
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
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
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/-
