Karnataka High Court
Bhimappa Adiveppa Desayar @ Kari @ ... vs Kashawwa W/O Maruteppa Horakeri on 21 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO.100248 OF 2017(PAR/POS)
C/W
REGULAR FIRST APPEAL NO. 100384 OF 2019
IN RFA NO.100248 OF 2017:
BETWEEN:
SHIVAPPA
S/O. ADIVEPPA DESAYAR @ KARI @ KARIGAR,
AGE: 66 YEARS, OCC: AGRICULTURE,
R/O: BETASUR, TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
...APPELLANT
(BY SRI. SHIVARAJ P. MUDHOL, ADVOCATE)
AND:
Digitally signed
by K M
SOMASHEKAR
Location:
KM
HIGH COURT
OF
SOMASHEKAR KARNATAKA
1. KASHAWWA
DHARWAD
BENCH
Date:
2023.11.25
W/O. MARUTEPPA HORAKERI,
13:04:10
+0530
AGE: 59 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
2. FAKIRAVVA
W/O. SHIVAPPA GADDI,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TQ: SOUNDATTI,
DIST: BELAGAVI -591126.
-2-
NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
3. MARUTI
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 58 YEARS,
OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TALUK: SOUNDATTI,
DIST: BELAGAVI-591126.
4. FAKIRAPPA
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O: BETASUR,
TALUK: SOUNDATTI,
DIST: BELAGAVI-591126.
5. BHIMAPPA
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: BETASUR,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
6. MAHADEV
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 50 YEARS,
OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TQ: SOUNDATTI,
DIST: BELAGAVI- 591126.
7. SAHADEV
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: BETASUR,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
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NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
8. RUKAMAWWA
W/O. NEELAPPA HORAKERI,
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
9. SHANTAWWA
W/O. SHIVAPPA KARIKATTI,
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
10. MARUTI
S/O. ADIVEPPA HORAKERI,
AGE: 60 YEARS,
OCC: AGRICULTURE,
R/O: DADERKOPPA,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
11. SHANTAWWA
W/O. FAKIRAPPA SHERI,
AGE: 54 YEARS,
OCC: AGRICULTURE,
R/O: HANCHINAL,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
12. NEELAPPA
S/O. ADIVEPPA HORAKERI,
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: DADERKOPPA,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
13. YALLAMMA
W/O. SHETTAPPA KEPODI @PATTIHAL,
AGE: 50 YEARS,
OCC: HOUSE HOLD WORK,
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NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
R/O: BETASUR,
TQ: SOUDATTI,
DIST: BELAGAVI-591126.
14. SHIVANAND
S/O. ADIVEPPA HORAKERI,
AGE: 48 YEARS,
OCC: AGRICULTURE,
R/O: DADERKOPPA,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
...RESPONDENTS
(BY SRI. H.M.DHARIGOND, ADVOCATE FOR R1;
SRI.S.B.DODDAGOUDAR, ADVOCATE FOR R5;
NOTICE TO R2 TO R4, R6 TO R11, R13 AND R14 ARE SERVED;
NOTICE TO R12 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
JUDGMENT AND DECREE DATED 30.06.2014 PASSED IN
O.S.NO.03/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
SAUNDATTI, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
IN RFA NO.100384 OF 2019:
BETWEEN:
BHIMAPPA ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: 59 YEARS,
OCC: AGRICULTURE,
R/O: BETASUR,
TQ: SAUNDATTI,
DIST: BELAGAVI.
...APPELLANT
(BY SRI.S.B.DODDAGOUDAR, ADVOCATE)
AND:
1. KASHAWWA
W/O. MARUTEPPA HORAKERI,
AGE: 62 YEARS,
OCC: HOUSEHOLD WORK,
-5-
NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
R/O: DADERKOPPA,
TQ: SAUNDDATTI,
DIST: BELAGAVI.
2. SHIVAPPA
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: BETASUR,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
3. FAKKIRAVVA
W/O. SHIVAPPA GADDI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TQ: SAUNDATTI,
DIST: BELAGAVI -591126.
4. MARUTI
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: BETASUR VILLAGE,
TALUK: SAUNDATTI,
DIST: BELAGAVI-591126.
5. FAKIRAPPA
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: BETASUR,
TALUK: SAUNDATTI,
DIST: BELAGAVI-591126.
6. MAHADEV
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: MAJOR,
OCC: AGRICULTURE,
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NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
R/O: BETASUR VILLAGE,
TQ: SAUNDATTI,
DIST: BELAGAVI- 591126.
7. SAHADEV
S/O. ADIVEPPA DESAYAR
@ KARI @ KARIGAR,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: BETASUR,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
8. RUKAMAWWA
W/O. NEELAPPA HORAKERI,
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
9. SHANTAWWA
W/O. SHIVAPPA KARIKATTI,
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O: DADERKOPPA,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
10. MARUTI
S/O. ADIVEPPA HORAKERI,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O: DADERKOPPA,
TQ: SOUNDATTI,
DIST: BELAGAVI-591126.
11. SHANTAWWA
W/O. FAKIRAPPA SHERI,
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O: HANCHINAL,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
-7-
NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
12. NEELAPPA
S/O. ADIVEPPA HORAKERI,
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O: DADERKOPPA,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
13. YALLAMMA
W/O. SHETTAPPA KEPODI @PATTIHAL,
AGE: MAJOR,
OCC: HOUSE HOLD WORK,
R/O: BETASUR,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
14. SHIVANAND
S/O. ADIVEPPA HORAKERI,
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: DADERKOPPAS,
TQ: SAUNDATTI,
DIST: BELAGAVI-591126.
...RESPONDENTS
(BY SRI. H.M.DHARIGOND, ADVOCATE FOR R1;
SRI.SHIVARAJ P.MUDHOL, ADVOCATE FOR R2;
NOTICE TO R3 TO R14 ARE SERVED)
THIS RFA IS FILED UNDER SEC.96 READ WITH ORDER 41
RULE 1 OF CPC., AGAINST JUDGMENT AND DECREE DATED
30.06.2014 PASSED IN O.S.NO.3/2012 ON THE FILE OF THE
SENIOR CIVIL JUDGE, SAUNDATTI, PARTLY DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THESE APPEALS, COMING ON FOR FURTHER ORDERS, THIS
DAY, H.P.SANDESH, J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:13543-DB
RFA No. 100248 of 2017
C/W RFA No. 100384 of 2019
JUDGMENT
Heard the learned counsel for the appellants in
R.F.A.No.100248/2017 on I.A.No.1/2017 for condonation of
delay of 1038 days and R.F.A.No.100384/2019 on
I.A.No.1/2019 for condonation of delay of 1781 days in
challenging the preliminary judgment and decree passed in the
year 2014.
2. In support of the application in I.A.No.1/2017 in
R.F.A.No.100248/2017, an affidavit is sworn to stating that the
appellant is an illiterate and residing in a remote corner of
village and old aged person suffering from ill-health and Doctor
had advised him to take rest and thereafter, due to failure of
rain, he went to Maharashtra for doing coolie work and when he
came back in March 2017, he came to know about the fact that
plaintiff succeeded in the appeal and immediately, he contacted
the advocate and filed the present appeal.
3. In support of the application in I.A.No.1/2019 in the
other appeal in R.S.A.No.100384/2019 also, an affidavit is
sworn to that he had no knowledge of passing of the judgment
and decree against him in O.S.No.3/2012, as he never
participated in the proceedings before the Court below and
NC: 2023:KHC-D:13543-DB
further sworn to that his elder brother Maruti, S/o. Adiveppa
Desayar @ Kari was managing the affairs of the family and he
had no occasion to enquire about the proceedings of the case,
as the property continues to be in his possession and he came
to know about the judgment and decree in the month of April,
2019 and thereafter, obtained the property extracts of the suit
property for the purpose of availing loan to meet his financial
requirements. The property extracts disclose the name of the
original plaintiff and hence, he took steps to file the appeal. In
the affidavit, it is also sworn to that he is an illiterate villager
and an agriculturist and had no knowledge of legal proceedings.
It is further sworn to that his son also died in 2017 and his wife
also remained persistently ill and she was unable to carryout
the household work or assist his blind daughter and his another
daughter was also hospitalized for delivery in the month of
January, 2019 and she delivered a baby boy on 14.01.2019 and
hence, there was delay in filing the appeal and prayed the
Court to condone the delay.
4. Having perused the reasons assigned in the
respective affidavits and in both the affidavits, both the
appellants have stated that they were illiterates and were not
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NC: 2023:KHC-D:13543-DB
having worldly affairs. In the appeal in R.F.A.No.100248/2017,
the appellant has stated that he was advised to take rest and in
support of his ill-health, no document is placed before the
Court. It is also stated that he went to Maharashtra and he
came back in March, 2019 and then only he came to know
about the fact that the plaintiff succeeded in the appeal.
5. In the other appeal in R.F.A.No.100384/2019, the
appellant has stated that he was not having any knowledge
about the proceedings. The material on record discloses that
the appellant in the present appeal was represented through
counsel and adopted the written statement filed by other
defendant. When such being the case, the contention that he
was not having knowledge about the judgment and decree
cannot be accepted. The records also disclose that the
judgment was pronounced on 30th day of June 2014 and in the
appeal in R.F.A.No.100248/2017, there is a delay of 1038 days
and in the appeal in R.F.A.No.100384/2019, there is a delay of
1781 days and merely because the appellants have sworn to
the affidavits that they came to know about the judgment
recently, the same cannot be a ground to condone the delay of
1038 days in R.F.A.No.100248/2017 and 1781 days in
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NC: 2023:KHC-D:13543-DB
R.F.A.No.100384/2019 and each day's delay has to be
explained by the appellants. Hence, we do not find any ground
to condone the delay of 1038 days in R.F.A.No.100248/2017
and 1781 days in R.F.A.No.100384/2019.
6. It is also learnt that, even the Trial Court also
passed the judgment on FDP proceedings and FDP is also
closed. When such being the case and other two appeals in
R.F.A.Nos.100249/2017 and 100396/2019 are filed against the
judgment and decree passed on the FDP proceedings, we do
not find any ground to condone the delay of 1038 days in filing
the appeal in R.F.A.No.100248/2017 and 1781 days in filing the
appeal in R.F.A.No.100384/2019. Accordingly, I.A.Nos.1/2017
and 1/2019 are dismissed. Consequently, the appeals are also
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
ST
