Sri Shantappa Basavanneppa ... vs Sri Mahaboobsab S/O Nannesab ...
2022 Latest Caselaw 13176 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 21ST DAY OF NOVEMBER, 2022

                          BEFORE

         THE HON'BLE MS. JUSTICE JYOTI MULIMANI

     REGULAR SECOND APPEAL NO.5471 OF 2011 (POS)

BETWEEN:

1.     SHANTAPPA
       S/O BASAVANNEPPA MANTAGANI,
       AGE:47 YEARS, OCC: AGRICULTURE,
       R/O KOLUR, TQ. DIST: HAVERI - 581 110.

2.     SHAMBANNA
       S/O BASAVANNEPPA MANTAGANI,
       AGE:49 YEARS, OCC: AGRICULTURE,
       R/O KOLUR, TQ. DIST: HAVERI - 581 110.

3.     VEERAPPA
       S/O BASAVANNEPPA MANTAGANI,
       AGE:59 YEARS, OCC: AGRICULTURE,
       R/O KOLUR, TQ. DIST: HAVERI - 581 110.

                                                ...APPELLANTS
(BY SRI. SHIVASAI M. PATIL, ADVOCATE)

AND:

MAHABOOBSAB
S/O NANNESAB SAVANUR
SINCE DECEASED BY HIS LRS.

1(a). PATIMA
      W/O MAHBOOBSAB SAVANUR,
      AGE:68 YEARS, OCC: HOUSEHOLD,
      R/O KOLUR, TQ. DIST: HAVERI - 581 110.
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1(b). VAJEERSAB
      S/O MAHBOOBSAB SAVANUR,
      AGE:51 YEARS, OCC: AGRICULTURE,
      R/O KOLUR, TQ. DIST: HAVERI - 581 110.

1(c). NANNAMIYA
      S/O MAHBOOBSAB SAVANUR,
      AGE:49 YEARS, OCC: AGRICULTURE,
      R/O KOLUR, TQ. DIST: HAVERI - 581 110.

1(d). KHADARBASHA
      S/O MAHBOOBSAB SAVANUR,
      AGE:45 YEARS, OCC: AGRICULTURE,
      R/O KOLUR, TQ. DIST: HAVERI - 581 110.

1(e). MAHAMMADALI
      S/O MAHBOOBSAB SAVANUR,
      AGE:39 YEARS, OCC: AGRICULTURE,
      R/O KOLUR, TQ. DIST: HAVERI - 581 110.

1(f).    SHAUKATALI
         S/O MAHBOOBSAB SAVANUR,
         AGE:33 YEARS, OCC: AGRICULTURE,
         R/O KOLUR, TQ. DIST.HAVERI - 581 110.

1(g). BEEBIJAN
      W/O MODINSAB MITCKHANNAVAR,
      AGE:37 YEARS, OCC: HOUSEWORK,
      R/O SAVANUR, TQ. SAVANUR,
      DIST: HAVERI - 581 110.                   ...RESPONDENTS

(BY SRI.S.M. KALWAD, ADVOCATE FOR R1 (A TO F);
    R1(G) - SERVED AND UNREPRESENTED.)

         THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 30.03.2011 PASSED
BY      THE   ADDITIONAL   CIVIL   JUDGE   (SR.DN.),   HAVERI   IN
R.A.NO.25/2008 AND THE JUDGMENT AND DECREE DATED
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12.06.2007 PASSED BY THE COURT OF ADDITIONAL CIVIL
JUDGE (JR.DN.), HAVERI IN O.S.NO.117/2004.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.11.2022, COMING ON FOR PRONOUNCEMENT
OF   JUDGMENT    THIS   DAY,   THE   COURT   DELIVERED    THE
FOLLOWING:
                        JUDGMENT

Sri.Shivasai M.Patil., learned counsel for appellants,

and Sri.S.M.Kalwad., learned counsel for respondents 1(a)

to (f) have appeared in person.

2. This appeal is from the Fast Track Court, Athani.

3. The parties shall be referred to as per their

status and ranking before the Trial Court.

4. The brief facts of the case are stated as under:

The plaintiff filed a suit for possession against the

defendants in O.S.No.117/2004 on the file of the Additional

Civil Judge (Jr.Dn), Haveri. After the service of the suit

summons, the defendants appeared through their counsel

and filed their written statement. They did not step into the

witness box.

Based on the above pleadings, the Trial Court has

framed the following issues:

1. Whether the plaintiff proves that he is the

absolute owner of suit properties?

2. Whether the plaintiff proves that defendant

No.1 and 2 illegally encroached on the

plaintiff's property as claimed in the plaint?

3. Whether the plaintiff is entitled to the relief

claimed in the suit?

4. What order or decree?

To substantiate the claim, Nannamiya

S/o.Mahaboobsab was examined as PW1 and one witness as

PW2 and produced fifteen documents which were marked as

Ex.P.1 to Ex.P.15. On the other hand, the defendants did

not adduce any oral evidence or produced any documentary

evidence

The Trial Court decreed the suit on the 12th day of

June 2007. Aggrieved by the Judgment and Decree, the

defendants preferred a regular appeal before the Appellate

Court. They filed an application under Section 5 of the

Limitation Act seeking condonation of delay. The Appellate

Court dismissed the application and consequently dismissed

the appeal also. Hence this Regular Second Appeal is filed

under Section 100 of the Civil Procedure Code.

5. Learned counsel for the appellants and

respondents 1(a) to (f) have urged several contentions.

6. To substantial the contention, learned counsel

for appellants has placed reliance on the following

decisions:

      1. DR.YASHWANTRAO                      BHASKARRAO

           DESHMUKH       VS.     RAGHUNATH             KISAN

           SAINDANE         -          CIVIL            APPEAL

           NO.6315/2021.

      2. POONA RAM VS. MOTI RAM (D) TH. LRS

           AND     OTHERS         -      CIVIL          APPEAL

           NO.4527/2009.





      7.    Heard the       contentions   urged on behalf of

respective parties and perused the appeal papers and the

records with care.

The suit giving rise to this appeal was filed by the

plaintiff for possession.

The principal ground urged on behalf of the appellants

is that the defendants left their village and went to a Coffee

Estate for their livelihood hence, they were not aware of the

Judgment passed by the Trial Court. Accordingly, it is

sought to contend that the Appellate Court ought to have

appreciated that the defendants are poor agriculturists and

illiterate and condoned the delay in filing the appeal.

It is pivotal to note that before the Trial Court the

defendants appeared through their counsel and filed a

written statement but they did not choose to cross-examine

the plaintiff despite affording sufficient opportunity. They

did not step into the witness box. The Trial Court concluded

that there is no material on record to disbelieve the

plaintiff's case. The learned Judge cared to look into the oral

and documentary evidence on record and held that the

plaintiff is the owner of the property in question and it was

also held that the plaintiff has proved the encroachment by

the defendants and directed the defendants to surrender

the possession of the encroached properties as shown in

Ex.P.1 Sketch prepared by the Surveyor.

Suffice it to note that the suit came to be decreed on

the 12th day of June 2007. The defendants filed a Regular

Appeal on the 2nd day of July 2008. The defendants filed an

application in I.A.No.2 to condone the delay of Three

Hundred and Seventy-Eight days in filing the appeal. It is

stated that they are poor agriculturists and they left the

village and went to a Coffee Estate for their livelihood. It is

also contended that after returning to the village, they came

to know about the order passed in the suit. Hence, they

could not file an appeal well in time.

Before this Court also, the defendants adhered to the

said contentions.

Sri. Shivasai M.Patil., learned counsel for appellants in

presenting his argument strenuously urged that the

defendants are poor agriculturists who had gone to a Coffee

Estate for their livelihood. Hence, there is a delay in filing

the appeal. Learned counsel also submitted that the learned

Judge has failed to consider the relevant factors.

By way of answer, Sri.S.M.Kalwad., learned counsel

for respondents 1(a) to (f) submitted that the defendants

are not diligent in prosecuting the proceedings. Learned

counsel argued that the defendants have not cross-

examined the plaintiff's witness and they have not bothered

to step into the witness box before the Trial Court. It is also

argued that the appellants have not led evidence before the

Appellate Court also. Learned counsel, therefore,

strenuously urged that the reasons accorded to condone the

delay are not sufficient.

I have given my anxious consideration to the

contentions urged on behalf of the defendants.

It is not in dispute that the suit was filed in the year

2004 and the suit came to be decreed in the year 2007. It is

also not in dispute that the defendants preferred an appeal

after a lapse of almost one year. The reasons accorded are

that they were not aware of the proceedings as they had

gone to a Coffee Estate for their livelihood hence appeal

could not be filed well in time.

I am unable to accept the said contention. As is well

known that Limitation is a substantive law and its provisions

must be adhered to. The right accrued to the other party

cannot be taken away lightly and routinely.

In the present case, the defendants except for filing a

written statement did not step into the witness box. The

learned Judge cared to look into the material on record and

decreed the suit. The defendants preferred an appeal in the

year 2008 after a lapse of one year. The appellants did not

lead evidence on the application. In my considered view,

the theory of staying away from the village went to a Coffee

Estate for livelihood is not a sufficient cause to condone the

delay. Hence, I have no hesitation to conclude that the

contention is satisfactorily hopeless.

The Law is well settled that delay cannot be excused

as a matter of "judicial generosity" in any special case. An

order extending time should give a sufficient indication that

the discretion given by the law has been judicially

exercised. The Trial Court decreed the suit for possession

and the same should not be disturbed at the instance of

negligent litigants.

Learned counsel for appellants has relied upon the

decisions. I do not think that the law is in doubt. Each

decision turns on its own facts. The present case is also

tested in the light of the aforesaid decision.

To conclude, I can say only this much that the law of

limitation is not an equitable statute. It is a statute of

repose. In my considered view, the Appellate Court is

justified in rejecting the application to condone the delay

and consequently justified in dismissing the appeal also.

The substantial questions of law are answered

accordingly.

As a result, I find no merit in this appeal, and

accordingly, it is dismissed.

Sd/-

JUDGE

TKN