Karnataka High Court

Madhavrao S/O Channappa Died Per ... vs Malshetty S/O Siddappa Died Per ... on 9 March, 2022

Bench: Ashok S. Kinagi

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

       DATED THIS THE 9TH DAY OF MARCH 2022

                         BEFORE

      THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

               R. S. A. NO.200203 OF 2020


BETWEEN:

1.    Madhavrao S/o Channappa
      Died Per LRs.

1a)   Kashinathrao
      S/o Late Madhavrao,
      Aged about 62 years,
      Occ: Agriculture,
      R/o Village Chambol,
      Tq. & Dist. Bidar-585 401.

1b)   Nirmala W/o Sangramappa,
      Aged about 59 years,
      Occ: Household,
      R/o. Nyalkal Mandal,
      Dist: Sangareddy.
      (Telangana State).

1c)   Indumati W/o Shivraj Patil,
      Aged about 56 years,
      Occ: Household,
      R/o. Village Shreemandal,
      Tq. & Dist: Bidar-585 401.
                               2




2.    Shashikala W/o Gunderao Patil,
      Aged about 53 years,
      Occ: Household,
      R/o. Village Chambol,
      Tq. & Dist. Bidar-585 401.

      Havagirao S/o Channappa
      Died per LRs.
      Plaintiff No.2/Appellant No.2
      Before Courts below.

2a)   Chandrakala W/o Late Kushalrao,
      Aged about 60 years,
      Occ: Household,
      R/o Village Chambol,
      Tq. & Dist. Bidar-585 401.

2b)   Kupendra S/o. Late Kushalrao,
      Aged about 48 years,
      Occ: Agriculture,
      R/o Village Chambol,
      Tq. & Dist. Bidar-585 401.

2c)   Omkar S/o Late Kushalrao,
      Aged about 46 years,
      Occ: Agriculture,
      R/o Village Chambol,
      Tq. & Dist. Bidar-585 401.

2d)   Srimanth S/o Late Kushalrao,
      Aged about 43 years,
      Occ: Agriculture,
      R/o Village Chambol,
      Tq. & Dist. Bidar-585 401.

2e)   Dhanraj S/o Late Kushalrao,
      Aged about 41 years,
      Occ: Agriculture,
      R/o Village Chambol,
      Tq. & Dist. Bidar-585 401.
                               3




2f)    Shankar Rao S/o Late Havagirao,
       Aged about 60 years,
       Occ: Agriculture,
       Tq. & Dist. Bidar-585 401.

2g)    Sharanappa S/o Late Havagirao,
       Aged about 58 years,
        Occ: Agriculture,
       R/o Village Chambol,
       Tq. & Dist. Bidar-585 401.

2h)    Manohar S/o Late Havagirao,
       Aged about 56 years,
       Occ: Agriculture,
       R/o Village Chambol,
       Tq. & Dist. Bidar-585 401.

2i)    Lalitabi W/o Shivakumar,
       Aged about 62 years,
       Occ: Household,
       R/o Village Chambol,
       Tq. & Dist. Bidar-585 401.

2j)    Reshmabai @ Bhagirathi
       W/o Dhanraj,
       Aged about 58 years,
       Occ: Household,
       R/o Village Chambol,
       Tq. & Dist. Bidar-585 401.
                                         ... Appellants
(By Sri. K.M.Ghate, Advocate)

AND:

       Malshetty S/o Siddappa
       Died per LRs.
       Defendant No.1 & Respondent
       No.1 before the courts below.
                             4




1.   Chandramma
     W/o Late Malshetty,
     Aged about 61 years,
     Occ: Household,
     R/o. Village Chambol,
     Tq. & Dist: Bidar-585 401.

2.   Basavaraj @ Basappa
     S/o Late Malshetty,
     Aged about 48 years,
     Occ: Agriculture,
     R/o. Village Chambol,
     Tq. & Dist. Bidar-585 401.

     Shivasharanappa
     S/o Sangashetty Biradar,
     Died per LRs.
     Defendant No.2 & Respondent
     No.2 before the courts below.

3.   Devakibai
     W/o Late Shivasharanappa Biradar,
     Aged about 62 years,
     Occ: Household, R/o H.No.ESW 44
     HUDCO Colony, Bidar,
     Dist: Bidar-585 401.

4.   Rajappa
     S/o Sangashetty Biradar,
     Aged about 58 years,
     Occ: Agriculture,
     R/o H.No.ESW 44
     HUDCO Colony, Bidar,
     Dist: Bidar-585 401.

     Channabasappa
     S/o Havappa Biradar,
     Died per LRs.
     Defendant No.4 & Respondent
     No.4 before the courts below.
                             5




5.    Kashamma
      W/o Vaijinath Chimkod,
      Aged about 65 years,
      Occ: Household,
      R/o LIG No.51,
      HUDCO Colony, (Daughter),
      Bidar, Dist: Bidar.

6.    Siddamma W/o Sudhakar,
      Aged about 61 years,
      Occ: Household & Pensioner,
      R/o. LIG No.51,
      HUDCO Colony, (Daughter),
      Bidar, Dist: Bidar.

7.    Rajendra S/o Channabasappa,
      Aged about 60 years, Occ: Pensioner,
      R/o. LIG No.51,
      HUDCO Colony (Son),
      Bidar, Dist: Bidar.

8.    Prakash S/o Channabasappa,
      Aged about 58 years, Occ: Service,
      R/o.LIG No. 51, HUDCO Colony (Son),
      Bidar, Dist: Bidar-585 401.

9.    Vishwanath S/o. Havappa Biradar,
      Aged about 70 years,
      Occ: Agriculture,
      R/o. Village Daddapur,
      Tq. & Dist: Bidar-585 401.

10.   Panchayya S/o Shankrayya,
      Aged about 75 years, Occ: Labour,
      R/o H.No.12-2-92, Harooreri, Bidar,
      Dist: Bidar-585 403.

11.   Basavanappa S/o. Maruteppa,
      Aged about 54 years,
      Occ: Agriculture,
                                        6




        R/o. Vidyanagar Colony,
        Bidar, Dist: Bidar-585 401.
                                                          ... Respondents

(By Sri. Ravi.B.Patil, Advocate for R1 to R9 & R11)

        This RSA is filed under Section 100 of the Code of
Civil    Procedure     praying        to    call   for   the   records    in
R.A.No.12/2005 on the file of Addl. District and Sessions
Judge, Bidar dated 16.06.2011 and call for the records of
O.S.No.32/1995 on the file of the then Prl. Civil Judge
(Sr.Dn.) at Bidar dated 30.03.2005, and thereby pleased
to set aside the judgment and decree of both courts below
and pleased to decree the suit of the plaintiffs with costs
throughout, to meet the ends of justice and equity.


        This appeal coming on for Orders, this day, the Court
delivered the following:
                            JUDGMENT

This appeal is filed challenging the judgment and

decree dated 16.06.2011, passed in R.A.No.12/2005

by the Addl. District & Sessions Judge, Bidar,

confirming the judgment and decree dated

30.03.2005, passed in O.S.No.32/1995 by the

Principal Civil Judge (Sr.Dn.), Bidar.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are the plaintiffs and respondents are the

defendants before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiffs filed a suit for declaration of ownership,

etc. It is the case of the plaintiffs that they are the

owners in possession of suit land bearing No.199

measuring 10 acres 29 guntas and now it is entered in

the ROR as Sy.No.199/A, 199/B and 199/C situated at

Chambol Village, Taluk & District Bidar. The

defendants No.2 and 3 are brothers, so also

defendants No.4 and 5 are brothers. Defendant No.1

is the cousin uncle of defendants No.2 to 5.

Defendants No.6 and 7 are the purchasers of the suit

land from defendant No.1. All the defendants have no

right, title or interest over the suit land and they are

not concerned to the family of the plaintiffs. The

Chambol Village was jagir of one Nawab Haji Mir

Dawar Ali Khan. There was a dispute between one

Bheemanna S/o Gundappa and Smt. Ratnabai, the

sister of Irappa S/o Siddappa, under which the said

Bheemanna had claimed that he is the elder brother of

Siddappa and they are members of joint family.

Irappa was the owner in possession of suit land known

as 'Aat Biga'. The said Irappa died in the year 1960,

subsequently, his wife Nagawwa and mother

Baslingawwa died leaving behind their only child late

Irappa under the custody of Ratnabai. Late Irappa

had taken the son of Ratnabai namely Channappa in

adoption. The jagirdar has given his judgment on

19.11.1918 wherein Channappa was held as an

adopted son of deceased Irappa and rights of Patelgi

were sanctioned in the name of Channappa by

restoring the inam lands mentioned therein including

suit land. Since from 1956-57, the name of

grandfather of plaintiffs was appearing in the ROR to

an extent of 2 acres 27 guntas. The defendant No.1

sold the land in favour of defendants No.6 and 7 in the

year 1994 under registered sale deed. Plaintiffs came

to know the illegal transactions and entries in the

ROR. The plaintiffs requested the defendants to

cancel the sale deeds and not to interfere with their

possession. Defendants have denied the title of the

plaintiffs over the suit property. Hence cause of

action arose for the plaintiffs to file the suit for

declaration, etc. Hence the plaintiffs filed the suit.

3.1. Defendants No.1 to 5 filed joint written

statement contending that the suit land bearing

Sy.No.199 measuring 10 acres 29 guntas is called as

'Chalis biga' land not 'Aat biga'. The said land was

earlier assigned with Sy.No.26 measuring 72 acres 12

guntas and same was divided into 3 survey numbers

i.e., Sy.No.199 measuring 10 acres 29 guntas,

Sy.No.197 measuring 35 acres 34 guntas and

Sy.No.196 measuring 25 acres 29 guntas and name of

the khatedar is shown as Siddappa S/o Gundappa.

Hence prayed to dismiss the suit.

Defendants No.6 and 7 also filed the written

statement denying the averments made in the plaint

and prayed to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

the parties, framed the following issues:

1. Whether plaintiffs prove that they are owners in possession of suit land?

2. Whether plaintiffs further prove that the Registered Sale Deed bearing document No.5125/93-94 dt.4-3-1994 and another Registered Sale Deed bearing document No.5126/93-94 are null and void against their rights and interest?

3. Whether plaintiffs further prove that they are entitled for the relief of injunction sought for?

4. Whether defendants No.6 & 7 further prove that, they are bonafide purchasers of the suit land for valid consideration without notice to the plaintiffs?

5. Whether defendants No.6 & 7 further prove that, they are acquired title to the suit land by virtue of Registered Sale Deed and they are in possession of the same?

6. Whether defendants No.6 & 7 further prove that they are entitled for compensatory costs of Rs.10,000/-?

7. Whether defendants No.1 to 5 prove that the suit of the plaintiffs is bad for non- joinder of necessary party?

8. Whether defendants No.1 to 5 further prove that suit is barred by law of limitation?

9. What order or decree?

3.3. Plaintiffs in order to prove their case,

examined themselves as P.W.1 and P.W.2 and

examined one witness as P.W.3 and got marked

Exs.P1 to P10. On the other hand, defendants 1, 2

and 5 were examined as D.W.1 to D.W.3 and two

independent witnesses as D.W.4 & D.W.5 and got

marked Ex.D1 to D30. The Trial Court, after recording

the evidence and considering the material on record

dismissed the suit of the plaintiffs.

3.4. The plaintiffs aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

R.A.No.12/2005. The First Appellate Court framed the

following points for consideration:

1. Whether the plaintiffs prove the ownership and lawful possession over the suit property on the date of the suit?

2. Whether the plaintiffs further proves that the interference by the defendants?

3. Whether the plaintiffs are entitled for declaration and permanent injunction sought in the plaint?

4. Whether the plaintiffs further proves that the Registered Sale Deed executed in favour of defendants No.6 & 7 bearing document

No.5125/93-94 dated 4-3-1994 and 5126/93-94 are null and void?

5. Whether the judgment and decree passed by the Trial Court in O.S.No.32 of 1995 dated 30-3-2005 is erroneous, capricious and the same is not in accordance with law and thereby liable to be interfered with?

6. What order or decree?

3.5. The First Appellate Court, after re-

appreciation of the evidence on record, dismissed the

appeal filed by the plaintiffs. Hence the legal

representatives of deceased plaintiffs have filed the

instant appeal.

4. Along with the appeal, they filed an application

in I.A.No.1/2020 under Section 5 of the Limitation Act

seeking for condonation of delay of 3114 days in filing

the second appeal. In support of the application,

appellant No.1(a) filed an affidavit stating that when

they received the survey notice from the surveyor of

ADLR Office, Bidar on 06.07.2020, for the first time,

they came to know that suit land was the subject-

matter of dispute during the lifetime of their father

and uncle and came to know that defendants No.6 & 7

purchased the disputed land and made an application

for survey and demarcation as Sy.No.199/4 and

199/5. It is admitted that their father and uncle filed

a suit for declaration of ownership and injunction in

O.S.No.32/1995 and the said suit came to be

dismissed and the appeal in R.A.No.12/2005 also

came to be dismissed. Thereafter, their father and

uncle have not taken any steps to challenge the

judgments and decrees passed by the courts below

due to advanced age of their uncle and litigation was

looked after by their father. After dismissal of appeal,

their father got shocked and suffered with mental

illness and remained with old age ailments and he

expired on 15.08.2016 and his uncle was bedridden

for a long period. He died on 20.11.2016. The

applicant came to know about the proceedings of

dismissal of the regular appeal when he had been to

the house of advocate Sri. Baburao Patil, engaged by

his father and uncle. His family members disclosed

that he expired on 30.03.2019, thereafter the

applicant applied for certified copy of judgment and

decree passed by the Trial Court as well as First

Appellate Court. Thus, the delay has caused in filing

the present appeal.

5. Heard learned counsel for the appellants on

I.A.No.1/2020.

6. Learned counsel for the appellants submits

that their father and uncle died leaving behind the

appellants. He submits that the legal representatives

of deceased plaintiffs were not aware about the

proceedings initiated by their fathers. He further

submits that the appellants came to know about the

dismissal of appeal by the First Appellate Court only

when they received notice from the surveyor.

Thereafter, they made enquiry and came to know

about the dismissal of appeal. He further submits that

the appeal involves right of immovable property. In

support of his arguments, he has placed reliance on

the judgment of Hon'ble Apex Court in the case of S.

Ganesharaju (D) THR. LRS. and another vs.

Narasamma (D) THR. LRS. and others reported in

2012 STPL 11941 SC and also on the judgment of

Hon'ble Apex Court in the case of State of

Karnataka vs. Y. Moideen Kunhi (dead) By Lrs. &

Ors., in C.C.Nos.3324-3326/2009, disposed of on

04.05.2009. He submits that the Court must take a

lenient view in condoning the delay in filing the

appeal. Hence, on these grounds, he prays to

condone the delay in filing the appeal.

7. Perused the records and considered the

submissions of the learned counsel for the parties.

The father and uncle of the appellants filed a suit in

O.S.No.32/1995 for relief of declaration of ownership

and etc. The said suit came to be dismissed on

30.03.2005. The plaintiffs in the said suit preferred

appeal in R.A.No.12/2005 before the Additional

District and Sessions Judge, Bidar. The First Appellate

Court on re-appreciation of material on record

dismissed the appeal vide judgment and decree dated

16.06.2011. Plaintiff No.1 died on 15.08.2016 and

plaintiff No.2 died on 20.11.2016. Plaintiffs in the said

suit have not challenged the judgment and decree

passed by the Courts below during their life time. The

appellants filed this appeal contending that the

appellants were not aware about the disposal of the

appeal and they came to know only when they

received notice from the ADLR for survey. The

appellants have filed this appeal after lapse of more

than ten years from the date of disposal of the appeal

by the First Appellate Court. Thus, there is inordinate

delay on the part of the appellants in approaching this

Court. The appellants have not explained the delay

satisfactorily. Thus, doctrine of delay and laches

should not be lightly brushed aside. The Court should

bear in mind that while exercising equitable

jurisdiction, it has the duty to protect the right of the

citizen, but simultaneously it has to keep itself alive to

the primary principle that when an aggrieved person

without reason approaches the Court at their own

leisure or pleasure, the Court would be under legal

obligation to scrutinize whether the lis at a belated

stage should be entertained or not. It may be noted

that delay comes in the way of equity. In certain

circumstances delay and laches may not be fatal but

in most circumstances inordinate delay would only

invite disaster for the litigant who knocks at the doors

of the Court. Delay reflects inactivity and inaction on

the part of a litigant - a litigant who has forgotten the

basic norms, namely, "procrastination is the greatest

thief of time" and second, law does not permit one to

sleep and rise like a phoenix. Delay does bring in

hazard and causes injury to the lis. A Court is not

expected to give indulgence to such indolent persons -

who compete with 'Kumbhakarna' or for that matter

'Rip Van Winkle'. Thus, there is delay of ten years in

filing the appeal. Such a delay does not deserve any

indulgence. Hence, on the ground delay the appeal is

liable to be dismissed at the very threshold. The

Hon'ble Apex Court in the case of Chennai

Metropolitan Water Supply and Sewerage Board

and others vs. T.T.Murali Babu reported in

2014(4) SCC 108, declined to condone the delay of

four years in approaching the Court. The Hon'ble

Apex Court in the case of Majji Sannemma @

Sanyasirao vs. Reddy Sridevi & Ors., in Civil

Appeal No.7696/2021 disposed of on 16.12.2021

relying on the judgment of the said Court in the case

of Basavaraj and another vs. Special Land

Acquisition Officer reported in (2013)14 SCC 81

has observed as under:

"The expression "sufficient cause"

cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party."

It is further observed that,

"Even though limitation may harshly affect the rights of a party but it has to be applied with all its rigour when prescribed by statute."

It is further observed that,-

"In case a party has acted with negligence, lack of bonaf ides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions."

It is observed that,

"Each application for condonation of delay has to be decided within the framework laid down by this Court".

It is further observed that,

"If Courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to the legislature."

8. The Hon'ble Apex Court has declined to

condone the delay of 1011 days in preferring the

second appeal. Further, the Hon'ble Apex Court in the

case of Lingeswaran Etc. vs. Thirunagalingam in

Special Leave to Appeal (C) Nos.2054-

2055/2022 disposed of on 25.02.2022, held that

when it is found that the delay is not properly

explained, the application to condone the delay is

required to be dismissed. The Hon'ble Apex Court

declined to condone the delay of 465 days.

9. As observed above, the original plaintiffs

during their lifetime did not challenge the impugned