Karnataka High Court

Vijayshree @ Vijaylakshmi vs Smt.Shambavi on 1 February, 2024

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                                                   NC: 2024:KHC-D:2254
                                                     RSA No. 100817 of 2016
                                                 C/W RSA No. 100816 of 2016



                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                     DATED THIS THE 1ST DAY OF FEBRUARY, 2024

                                        BEFORE

                         THE HON'BLE MR JUSTICE R.NATARAJ

                   REGULAR SECOND APPEAL NO.100817/2016 (DEC)
                    C/W REGULAR SECOND APPEAL NO.100816/2016

            IN RSA.NO.100817/2016:

            BETWEEN:

            1.   SMT. KASTOORAMMA SECOND WIFE OF
                 A. H. M VEERABHADRAIAH,
                 AGE: 47 YEARS, OCC: HOUSEHOLD,
                 R/O: KOTTUR, TQ: KUDLIGI, DIST: BALLARI.

            2.   VIJAYASHREE @ VIJALAKSHMI,
                 D/O. A.H.M VEERABHADRAIAH,
                 AGE: 22 YEARS, OCC: HOUSEHOLD,
                 R/O: KOTTUR, TQ: KUDLIGI, DIST: BALLARI.

            3.   VISHALAKSHI D/O. A.H.M VEERABHADRAIAH,
                 AGE: 18 YEARS, OCC: HOUSEHOLD,
                 R/O: KOTTUR, TQ: KUDLIGI, DIST: BALLARI.
                                                            -    APPELLANTS
            (BY SRI SACHIN C. KULKARNI, ADVOCATE)

Digitally   AND:
signed by
VINAYAKA
BV          1.   SMT.SHAMBAVI W/O. SHIVANANDAIAH,
                 D/O. A.H.M VEERABHADRAIAH,
                 AGE: 51 YEARS, OCC: HOUSEHOLD,
                 R/O: SANDUR TOWN, DIST: BALLARI.

            2.   KUMARI NAGARATHNAMMA D/O. A.H.M VEERABHADRAIAH,
                 AGE: 41 YEARS, OCC: HOUSEHOLD,
                 R/O: SANDUR TOWN, DIST: BALLARI.
                                                      -   RESPONDENTS
            (BY SRI HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R1 AND R2)

                 THIS REGULAR SECOND APEPAL IS FILED UNDER SECTION 100
            OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.08.2016
            PASSED IN R.A.NO.50/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
            AND JMFC, KUDLIGI, DISMISSING THE APPEAL AND CONFIRMING THE
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                                       NC: 2024:KHC-D:2254
                                         RSA No. 100817 of 2016
                                     C/W RSA No. 100816 of 2016



JUDGMENT AND DECREE DATED 27.11.2013, PASSED IN O.S.
NO.46/2008 ON THE FILE OF THE CIVIL JUDGE, KUDLIGI, DECREEING
THE SUIT FILED FOR DECLARATION AND DELIVERY OF POSSESSION &
ETC.

IN RSA.NO.100816/2016:

BETWEEN:

1.   VIJAYASHREE @ VIJALAKSHMI
     D/O. LATE A.H.M VEERABHADRAIAH,
     AGE: 24 YEARS, OCC: HOUSEHOLD,
     R/O: KOTTUR, TQ: KUDLIGI, DIST: BALLARI.

2.   VISHALAKSHI D/O. A.H.M VEERABHADRAIAH,
     AGE: 23 YEARS, OCC: HOUSEHOLD,
     R/O: KOTTUR, TQ: KUDLIGI, DIST: BALLARI.

3.   SMT. KASTOORAMMA SECOND WIFE OF
     A. H. M VEERABHADRAIAH, AGE: 43 YEARS,
     OCC: HOUSEHOLD, R/O: KOTTUR,
     TQ: KUDLIGI, DIST: BALLARI.
                                                    -    APPELLANTS
(BY SRI SACHIN C. KULKARNI, ADVOCATE)

AND:

1.   SMT.SHAMBAVI D/O. A.H.M VEERABHADRAIAH,
     W/O. SHIVASHARANAIAH, AGE: 51 YEARS,
     OCC: HOUSEHOLD, R/O: SANDUR TOWN, DIST: BALLARI.

2.   KUMARI NAGARATHNAMMA,
     D/O. A.H.M VEERABHADRAIAH,
     AGE: 41 YEARS, OCC: HOUSEHOLD,
     R/O: SANDUR TOWN, DIST: BALLARI.
                                                -       RESPONDENTS
(BY SRI HANUMANTHAREDDY SAHUKAR,
ADVOCATE FOR R1 AND R2)

     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.08.2016
PASSED IN R.A.NO.49/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, KUDLIGI, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 27.11.2013, PASSED IN O.S.
NO.151/2008 ON THE FILE OF THE CIVIL JUDGE, KUDLIGI, DECREEING
THE SUIT FILED FOR DECLARATION AND DELIVERY OF POSSESSION &
EC.
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                                          NC: 2024:KHC-D:2254
                                            RSA No. 100817 of 2016
                                        C/W RSA No. 100816 of 2016



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

                             JUDGMENT

The plaintiffs in O.S. No. 151/2008 on the file of the Civil

Judge at Kudligi, have filed R.S.A. No. 100816/2016

challenging the judgment and decree dated 27.11.2013 passed

by the Trial Court as well as the order dated 06.08.2016 passed

by the First Appellate Court in R.A. No. 49/2014 by which an

application filed by them under Section 5 of the Limitation Act,

1963 was rejected and consequently the appeal was dismissed.

2. R.S.A. No. 100817/2016 is filed by the defendants in O.S.

No. 46/2008 on the file of Civil Judge & JMFC, Kudligi,

challenging the judgment and decree dated 27.11.2013 and the

order dated 06.08.2016 passed by the Senior Civil Judge &

JMFC, Kudligi in R.A. No. 50/2014 by which an application filed

under Section 5 of the Limitation Act was rejected.

3. The suit in O.S. No. 46/2008 was filed for declaration and

other reliefs in respect of a house property. The plaintiffs

therein contended that they were the daughters of

Veerabhadraiah. They alleged that they and their mother were

neglected by Veerabhadraiah who executed a gift deed in the

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year 1986 in favour of H.M. Mahadevaiah. They challenged the

said gift deed in O.S. No. 43/1997. Later, their father

Veerabhadraiah came in illegal contact with another lady who

already had two children. Thus they filed a suit O.S. No.

18/1998 against Veerabhadraiah for partition and separate

possession. During the pendency of the suit their father died

on 16.10.2001. Later their stepmother (defendant no.1)

trespassed into the suit property. Hence, they filed O.S. No.

46/2008 and claimed that they were the legal heirs of

Veerabhadraiah and were entitled for declaration of their title

and for recovery of possession of the suit property.

4. The suit in O.S. No. 151/2008 was filed by Smt.

Kastooramma and her children claiming to be the second wife

and children of Veerabhadraiah for partition contending that

they too were entitled for a share in the property.

5. Both the suits were contested and the trial court after

considering the oral and documentary evidence held that the

plaintiffs no.1 and 2 in O.S. No. 151/2008 were the illegitimate

children of Veerabhadraiah and plaintiff no.3 was not the wife

of Veerabhadraiah since Veerabhadraiah was already married

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and his spouse was alive. The trial court held that the plaintiffs

were therefore not entitled to any share in the suit property

and consequently dismissed the suit in O.S. No. 151/2008 and

decreed the suit filed in O.S. No. 46/2008 by a common

judgment and decree dated 27.11.2013. Being aggrieved by

the common judgment and decree, separate appeals were filed

in R.A. No. 49/2014 and R.A. No. 50/2014. Since these

appeals were filed belatedly, an application was filed under

Section 5 of the Limitation Act for condonation of delay of ten

months and nine days in filing the appeals. This application

was contested and the court recorded evidence of the appellant

no.3 as PW1 and a Doctor who treated the appellant no.3, as

PW2 and they marked Exs.P.1 and P.2. The court after

considering the evidence recorded on the application for

condonation of delay held that appellant no.3 admitted in the

cross examination that she was pursuing both the suits before

the trial court and that her daughter had informed the result of

the suits on the date of the judgment itself. The first appellate

court held that this indicated that the daughter of the appellant

no.3 also actively participated in prosecuting both the suits. It

held that though the appellant no.3 claimed that she was

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admitted at Kotturu Hospital as an inpatient for one week after

the judgment was delivered, no documents in that regard were

produced before the court. It held that though PW2 spoke

about the health condition of the appellant no.3, it doubted

Ex.P.1 which was the medical certificate issued by PW2 as it did

not bear any date. It held that appellant no.3 had nowhere

stated in her evidence that she was suffering from typhoid

during the relevant period. With these and other similar

observations, the first appellate court rejected the application

and dismissed the appeals. Being aggrieved by the said

judgment and decree of the trial court and the order of the first

appellate court, these appeals are filed.

6. Learned counsel for the appellant submitted that the suit

filed in O.S. No. 151/2008 was for partition of their share in the

suit schedule property while the suit in O.S. No. 46/2008 was

for declaration of title in respect of the very same property. He

contends that the trial court had rejected the suit filed in O.S.

No. 151/2008 on the ground that the plaintiffs no.2 and 3 were

the illegitimate children of Veerabhadraiah. He contends that

as per the law declared by the Hon'ble Supreme Court in the

case of Revanasiddappa and another Vs. Mallikarjun and

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others1 illegitimate children are also entitled for a share out of

the share of their father. Therefore, he contends that the

judgment of the trial court requires to be interfered. He further

submits that there was sufficient evidence placed before the

trial court to establish that the appellant no.3 was pursuing the

proceedings before the trial court and since she was unwell,

she was not in a position to file the appeals in time. He

contends that PW2 has specifically spoken about the health

issues suffered by the appellant no.3 and therefore the first

appellate court ought to have been liberal in considering the

cause shown for the delay.

7. Per contra, learned counsel for the respondents no.1 and

2 submitted that the appeals were filed belatedly and that the

explanation offered by the appellants for condonation of delay

was not satisfactory. He submitted that the appellants were

aware of the judgment and decree passed by the trial court on

the date the judgment was passed. He contends that the

appellants were bound to take immediate steps to file appeals

in time. However, they slept over their rights and have

(2023) 10 SCC 1

NC: 2024:KHC-D:2254

invented a cause to claim that they were prevented from

sufficient reason from filing the appeals in time. He contends

that evidence of PW1 and PW2 are not satisfactory to explain

the delay of ten months and nine days and therefore the trial

court and the first appellate court were justified in rejecting the

application and consequently dismissing the appeals.

8. After hearing the parties the following substantial

question of law has arisen for consideration in these appeals.

Whether the first appellate court was justified in rejecting the application for delay unmindful of the fact that the appellant had examined PW2 who was the Doctor who deposed about the health condition of the appellant no.3 as a result of which they could not file the appeal in time?

9. The judgment and decree of the trial court was passed on

27.11.2013 while the appeals before the first appellate court

were filed on 10.10.2014. It may be that the appellants were

aware of the judgment and decree passed by the trial court.

However, having regard to the fact that the appellant no.3 was

burdened with the responsibility of looking after her two

daughters and also having regard to the fact that she had

pleaded before the first appellate court that she was unwell and

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was treated by PW2 who was examined, the first appellate

court ought to have been considerate and liberal while

considering the application for condonation of delay. The

appellant no. 3 has done everything that she could by

examining herself and also the Doctor who treated her and also

produced documents to establish that she was unwell. Now

that the Hon'ble Supreme Court in Revanasiddappa (supra)

has held that the illegitimate children are also entitled for a

share out of the share of their father, the impugned judgment

and decree passed by the trial court and the order of the first

appellate court deserves to be set aside. In that view of the

matter, the substantial question of law is answered in favour of

the appellants and against the respondents.

10. In view of the above, I pass the following:

ORDER

Appeals are allowed;

Impugned order dated 06.08.2016 passed by the first

appellate court in R.A. No. 49/2014 and R.A. No. 50/2014

rejecting the interim applications filed for condonation of delay

are set aside;