Sri Shankarappa vs Sri Nagaraju
2023 Latest Caselaw 1458 Kant

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                                                        RSA No. 1466 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 21ST DAY OF FEBRUARY, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1466 OF 2021 (INJ)

                   BETWEEN:

                   1.    SRI SHANKARAPPA
                         S/O LATE NANDEESHAPPA
                         AGED ABOUT 63 YEARS
                         R/AT. SAMPIGEHALLI VILLAGE
                         BANNERUGHATTA VILLAGE
                         ANEKAL TALUK
                         BANGALORE DISTRICT
                         BANGALORE-560 083

                         REP. BY HIS POWER OF ATTORNEY HOLDER
                         SRI SIDDARAJU
                         S/O LATE BASAVARAJAPPA
                         AGED ABOUT 51 YEARS
                         R/AT. SAMPIGEHALLI VILLAGE
                         BANNERUGHATTA VILLAGE
Digitally signed
by SHARANYA T            ANEKAL TALUK
Location: HIGH           BANGALORE DISTRICT
COURT OF                 BANGALORE-560 083
KARNATAKA
                                                                ...APPELLANT

                              (BY SRI. MANJUNATHA M.V., ADVOCATE)
                   AND:

                   1.    SRI NAGARAJU
                         S/O LATE KEMPEGOWDA
                         AGED ABOUT 54 YEARS
                         R/AT NO.1611, 18TH MAIN ROAD
                         4TH 'T ' BLOCK, JAYANAGAR
                         BANGALORE-560 041
                                                            ...RESPONDENT
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                                                  RSA No. 1466 of 2021




         THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 13.12.2016
PASSED         IN   R.A.No.52/2008    ON        THE   FILE     OF   THE     III
ADDITIONAL          DISTRICT    AND   SESSIONS         JUDGE,       ANEKAL,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 19.11.2008 PASSED IN O.S.No.663/2006
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN.) AND
JMFC, ANEKAL.


         THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                               JUDGMENT

Heard the learned counsel appearing for the appellant on

I.A.No.1/2021 for condonation of delay of 1107 days in filing

the appeal.

2. The appellant has filed an affidavit in support of the

application-I.A.No.1/2021 stating that the present appeal is

filed challenging the judgment and decree passed in

R.A.No.52/2008, which was dismissed on 13.12.2016. It is

sworn to that after passing of the judgment and decree

dismissing the appeal by the First Appellate Court and in view

of the intervention of the elders, relatives and panchayathdars,

so also since the respondent is admittedly residing at

RSA No. 1466 of 2021

Bengaluru, the respondent was refrained from making any kind

of claim or interference in the schedule property against the

plaintiff/appellant. It is further sworn to that in view of

appellant's continuous possession without any disturbance,

there was no occasion for challenging the impugned judgment.

To evidence the same, it is important to note that the

respondent had filed a private complaint in PCR No.144/2009

before the Trial Court against him and the appellant and as

could be seen from paragraph Nos.4 and 5 of the private

complaint as well as the evidence/sworn statement of the

respondent, he has categorically admitted the possession of the

appellant including construction made by the appellant in the

property. Hence, the delay has to be condoned.

3. Having heard the learned counsel appearing for the

appellant and on perusal of the reasons assigned in the

affidavit accompanying with an application and the material

available on record, the appellant has filed a suit seeking for

the relief of permanent injunction and the same was dismissed

vide judgment dated 19.11.2008. Being aggrieved by the said

judgment, an appeal was filed and the same is numbered as

R.A.No.52/2008, the same was also dismissed on merits on

RSA No. 1466 of 2021

13.12.2016. Admittedly, the appeal was filed by this appellant

only and the same was dismissed on 13.12.2016. The present

appeal is filed on 28.01.2021 and there was a delay of 1107

days in filing the appeal.

4. Having heard the learned counsel appearing for the

appellant and on perusal of the reasons assigned in the

affidavit accompanying with an application, nothing is stated

with regard to the delay in filing the appeal from the year 2016

to 2021. The reason assigned in the affidavit is that after

passing of the judgment and decree dismissing the appeal by

the First Appellate Court, in view of the intervention of the

elders, villagers and panchayathdars and also the respondent is

residing at Bengaluru, there was no any interference. Hence,

the judgment and decree of dismissal of the appeal was also

not challenged. Except the said averment, each day delay is not

explained and also pleaded with regard to giving of complaint

which was numbered as PCR No.144/2009 and the same is not

bearing on the delay is concerned and those documents are

also not placed before the Trial Court. When the suit is filed for

the relief of injunction and the suit was also dismissed on the

ground that the plaintiff has not proved the possession and the

RSA No. 1466 of 2021

same is also affirmed by the First Appellate Court. Hence, the

contention now before this Court is that the respondent has not

interfered with his possession and hence, the appeal was not

filed on time cannot be accepted and also each day delay of

1107 days is not explained by the appellant and the appeal was

dismissed on 13.12.2016 almost after 5 years this appeal has

been filed. The delay application also, does not disclose

anything about the delay from the year 2016 to 2021. When

such being the case, I do not find any satisfactory ground to

consider the delay and in the absence of any valid reasons to

condone the delay of 1107 days in filing the appeal and the

appellant has also not made out any ground to condone the

appeal.

5. Accordingly, I.A.No.1/2021 is rejected.

Consequently, the appeal filed by the appellant is also

dismissed since there is a concurrent finding of dismissal and

also confirming the same when the suit is filed for the relief of

permanent injunction.

RSA No. 1466 of 2021

6. In view of dismissal of the appeal, I.As., if any do

not survive for consideration and the same stand disposed of.

Sd/-

JUDGE

CP