Mariyappa vs Gangamma
2023 Latest Caselaw 6497 Kant

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                                                          NC: 2023:KHC:33087
                                                        RSA No. 1958 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 13TH DAY OF SEPTEMBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1958 OF 2017 (PAR)

                   BETWEEN:

                   1.    MARIYAPPA
                         S/O CHIKKANNA,
                         AGED ABOUT 67 YEARS,
                         AGRICULTURIST

                   2.    NAGAMMA
                         W/O LATE KAPPAKARIYAJJA
                         AGRICULTURIST,
                         AGED ABOUT 53 YEARS,

                         BOTH APPELLANT Nos.1 AND 2
                         ARE R/AT RANGAIANUR,
                         GOLLARAHALLY VILLAGE,
                         BAGUR HOBLI,
Digitally signed
by SHARANYA T            HOSADURGA TALUK,
Location: HIGH           CHITRADURGA DISTRICT 577527.
COURT OF
KARNATAKA
                   3.    SAVITHRAMMA
                         W/O THIMMANNA,
                         AGED ABOUT 48 YEARS,
                         KALKERE VILALGE,
                         HOSADURGA TALUK 577527
                                                               ...APPELLANTS

                          (BY SRI GOPALAKRISHNA MURTHY C., ADVOCATE)
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                                            NC: 2023:KHC:33087
                                          RSA No. 1958 of 2017




AND:

    GANGAMMA
    W/O KALEERAPPA,
    AGED ABOUT 46 YEARS,
    AGRICULTURIST,
    R/AT MADIHALLY VILLAGE,
    HUNASEKATTE POST,
    AMRUTHAPURA HOBLI,
    TARIKERE TALUK,
    CHIKMAGALUR DISTRICT 577535.
                                                ...RESPONDENT

            (BY SRI M.R.PATIL, ADVOCATE FOR C/R)
     THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
ORDER    DTD:   28.06.2017  PASSED    ON    IA.NO.1  IN
R.A.NO.278/2016 ON THE FILE OF THE SENIOR CIVIL, JUDGE
AND   JMFC.,   HOSADURGA,    REJECTING   I.A.No.1   AND
DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT
AND DECREE DTD: 03.05.2013 PASSED IN O.S.NO.120/2011
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC.,
HOSADURGA.

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

Heard the learned counsel for appellants and also the

counsel appearing for the respondent. This matter is listed

for admission.

2. The factual matrix of the case of the

plaintiff/respondent before the Trial Court that the suit

schedule properties are belongs to the joint family and the

NC: 2023:KHC:33087 RSA No. 1958 of 2017

defendant No.1 managing the joint family properties as

kartha of the family. The defendants are disputing the

very relationship between the parties in the suit and also

contend that properties are the self acquired properties of

their father of the defendants Chikkappa and the Trial

Court having considered the material on record with

regard to the relationship is concerned, answered the

issue No.1 and 5 in the affirmative and issue Nos.2 to 4

and 6 in the Negative and photo was also confronted

through the DW1 in the cross examination and when the

suggestion was made that he is tying thaali on the

plaintiff's daughter and when he went to pooja, the same

may be tied and PW2 also in his cross examination

admitted about the relationship between the parties and

taken note of the same and answered the issue No.1 as

affirmative and now counsel contend that even

relationship is not admitted. But, in the case on hand, it

has to be noted that the appeal is filed after 3 years 4

days and an IA is filed before the appellate Court to

condone the delay and in support of their case, appellants

NC: 2023:KHC:33087 RSA No. 1958 of 2017

have examined 3 witnesses as PW1 to PW3 and in the

cross examination PW1 categorically admitted that he

useD to visit each and every day to Trial Court and he was

also aware of the fact that revenue entries are effected in

terms of final decree and also he admits that final decree

also drawn, only reason given by the appellant before the

First Appellate Court with regard to delay is concerned that

he was suffering from isubu (lupus). The PW2 and PW3

have been examined in support of their case but, PW1

categorically admitted that he did not take any treatment

from the Doctor and also in fact he contend that he took

the treatment by one Chandrappa who is the pontiff

Katteranganathaswamy temple and he was also not been

examined before the appellate Court. The First Appellate

Court having taken note of answers elicited from the

mouth of PW1, disbelieved the very reasoning given by the

appellant and there was delay of 3 years 4 days in filing

the appeal. In paragraph No.8 to 10 in detail discussed

and comes to the conclusion that the delay of each day

has not been properly explained when there was a delay of

NC: 2023:KHC:33087 RSA No. 1958 of 2017

more than 1000 days, the same is not been explained by

the appellant. Hence the appeal is dismissed on the

ground of delay.

3. Having perused the reasons assigned by the

Trial Court, the First Appellate Court has considered the

reasons assigned by the appellant and only very reason

assigned that he was suffering from leg disease called

isubu(lupus) and the same is also not supported by any

documentary evidence except examining PW2 and PW3

who are also not treated them and also specific answer

was elicited in the cross examination of PW1 that he has

not taken any treatment with the Doctor.

4. Apart from that he categorically admitted that

he was aware of the factum of judgment and preliminary

decree and also drawing up of the final decree. After

drawing up of the final decree only the present appeal is

filed before the Court. The Trial Court judgment was

passed on 03.06.2013 and the appeal was filed before the

appellate Court in the year 2016. Hence, the reasons

NC: 2023:KHC:33087 RSA No. 1958 of 2017

which are given by the appellants are not acceptable

reasons and not satisfactorily explained before the Trial

Court. I do not find any ground to set-aside the order of

the First Appellate Court, when there is an in-ordinate

delay in filing the appeal even though having the

knowledge about the preliminary decree as well as the

final decree and also he was visiting the Trial Court

regularly when the case was pending before the Trial

Court. Each day delay is not explained. Hence, the appeal

is dismissed.

Consequently IAs' which are pending if any are also

dismissed.

Sd/-

JUDGE

RHS