Karnataka High Court
Sri Y Gopala Shetty vs Smt Appi Shedthi on 27 February, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
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WA No. 319 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE ALOK ARADHE
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A PATIL
WRIT APPEAL NO. 319 OF 2020 (LR)
BETWEEN:
SRI Y GOPALA SHETTY
S/O LATE ACHANNA SHETTY,
AGED ABOUT 66 YEARS,
R/O NETHRA KUTEERA,
YERMAL, TENKA VILLAGE,
UDUPI TALUK AND DISTRICT
(BENEFIT OF SENIOR CITIZEN NOT CLAIMED)
...APPELLANT
(BY SRI. M.R.RAJAGOPAL, ADVOCATE FOR
SRI. H N BASAVARAJU, ADVOCATE)
Digitally signed
by REKHA R
AND:
Location: High
Court of
Karnataka
SMT APPI SHEDTHI
W/O LATE SANKAPPA SHETTY,
DEAD BY LR's,
1. SUSHILA PRAKASH SHETTY,
2. ASHOK SANKAPPA SHETTY
SINCE DECEASED BY LR's
2a) SMT. SUREKHA ASHOK SHETTY
W/O LATE ASHOK SANKAPPA SHETTY
AGED ABOUT 51 YEARS
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WA No. 319 of 2020
2b) SMT. DHANISHA ASHOK SHETTY
D/O LATE ASHOK SANKAPPA SHETTY
AGED ABOUT 26 YEARS
2c) SMT. LIPIKA ASHOK SHETTY
D/O LATE ASHOK SANKAPPA SHETTY
AGED ABOUT 20 YEARS
ALL THE LR's NO.2(a) TO (c) ARE
RESIDING AT VISHWAS PRIDE
FLAT NO.408, 4TH FLOOR,
76 BADAGUBETTE VILLAGE
CHITPADI
UDUPI - 576 101
3. UDAYA SANKAPPA SHETTY
4. HARISH SANKAPPA SHETTY
5. VIJAY LAXMI SATHISH SHETTY
RESPONDENT NOS.1 TO 5 ARE ALL
MAJORS IN AGE AND REPRESENTED
BY THEIR GPA HOLDER HARISH SANKAPPA
SHETTY, ROOM NO.15, G2 FLOOR,
RAWAL TERRACE, OPP: K.M.HOSPITAL,
DR. BORGES STREET, PATEL,
MUMBAI - 400 012
MAHARASHTRA STATE
6. THE LAND TRIBUNAL
UDUPI, BY ITS SPECIAL TAHSILDAR AND
SECRETARY, UDUPI - 576 101
7. THE STATE OF KARNATAKA
BY ITS REVENUE SECRETARY,
REVENUE DEPARTMENT,
MULTISTOREYED BUILDING,
BENGALURU - 560 001
...RESPONDENTS
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WA No. 319 of 2020
(BY SMT. NAMITHA MAHESH B.G, AGA FOR R6 & R7;
SRI. K.VYASA RAO, ADVOCATE FOR R1, R2(A-C) & R3-R5)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO a) SET ASIDE THE
ORDER DATED 28.11.2011 PASSED BY THE LEARNED SINGLE
JUDGE IN W.P.NO.39386/2003 (LR); b) CONSEQUENTLY
DISMISS W.P.NO.39386/2003 (LR) FILED BY THE 1ST
RESPONDENT HEREIN; c) PASS SUCH OTHER ORDER OR
DIRECTION AS THIS HON'BLE COURT DEEM IT FIT AND
PROPER IN THE FACTS AND CIRCUMSTANCES OF THE CASE
AND ALLOW THIS WRIT APPEAL WITH COSTS, IN THE ENDS OF
JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
Mr.M.R.Rajagopal, learned counsel for
Sri.H.N.Basavaraju, learned counsel for appellant.
Smt.Namitha Mahesh B.G, learned Additional
Government Advocate for respondent Nos.6 and 7.
Mr.K.Vyasa Rao, learned counsel for respondent Nos.1,
3 to 5 and respondent No.2(A-C).
WA No. 319 of 2020
2. Heard the learned counsel for the parties on
I.A.No.1/2020.
3. This intra Court appeal has been filed against
order dated 28.11.2011 passed by learned Single Judge, by
which W.P.No.39386/2003 preferred by respondent Nos.1 to
5, challenging the order dated 29.01.2003 passed by the
Land Tribunal granting occupancy rights in favour of the
appellant has been disposed of with a direction to the Land
Tribunal to appoint surveyor to carve out measurement of 55
cents of land, which includes the area of capital share as well
as the land where house of the appellant is situated.
4. We have heard the learned counsel for the parties
at length.
5. In the affidavit, filed in support of the application
seeking condonation of delay of 3008 days in filing the
appeal, the following averments has been made:
"xxx
WA No. 319 of 2020
3. It is submitted that out of the aforesaid extent
of the property, an extent of 55 cents was acquired
and compensation was apportioned between the
owner i.e., respondent No.1 herein as well as the
father of the appellant. Upon deducted the
acquired extent, the remaining extent in this
Sy.No. was 95 cents. The father of the appellant
was an illiterate while filing Form No.7 who got
filled up through the assistance of a literate
person, by mistakenly the extent was indicated as
55 cents as against 95 cents. It is an inadvertent
error and unintentional and deliberate. However,
on making such application, while the tenancy
right was adjudicated by the Land Tribunal, upon
afforded opportunity to the contesting parties,
noticed that the actual extent of the land was 95
cents. To arrive such a conclusion, the Land
Tribunal has placed reliance on the report
submitted by the Surveyor and accordingly
occupancy right was granted to an extent of 95
cents vide case No.LRY:103:565:tri:1789/81-82
dated 01.10.1981 and that was the subject matter
in W.P.No.35848/1994 and the said writ petition
came to be allowed and the matter was remitted to
the Land Tribunal for a fresh consideration vide
order of this Hon'ble Court dated 23.03.1999."
6. Thus, it is evident that no explanation has been
offered for inordinate delay of 3008 days in filing the appeal.
We are conscious of the fact that the Courts are required to
take a particular view for condonation of delay so as to call
for justice, however, nonetheless the litigant is under an
obligation to furnish an explanation for the delay. In para
WA No. 319 of 2020
No.3 of the affidavit, no explanation has been furnished for
delay of 3008 days in filing the appeal. Therefore, we have
held that no sufficient cause is made out for condonation of
delay of 3008 days in filing the appeal. Accordingly,
I.A.No.1/2020 is dismissed.
7. Even otherwise for yet any reason no interference
is called for in the order passed by the learned Single Judge.
8. It is pertinent to note that by order dated
28.11.2011, learned Single Judge has upheld the order of
grant of land in favour of appellant and remitted the matter
only to carry out the measurement. It is not in dispute that
in pursuance of the order passed by the learned Single
Judge, afresh measurement has already been carried out and
the Land Tribunal has disposed of Form No.7 filed by the
appellant by an order dated 08.08.2016. It is also not in
dispute that aforesaid order has been assailed in
W.P.No.44617/2016.
WA No. 319 of 2020
For the aforementioned reason also, nothing survives
for adjudication in this intra Court appeal. Accordingly, the
same is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
RR
