Karnataka High Court

Smt. Chandrawwa W/O Parappa Gundi vs Gangappa S/O Balappa Chinchali on 14 February, 2024

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                                                     RFA No. 100108 of 2021




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                        DATED THIS THE 14TH DAY OF FEBRUARY, 2024

                                          PRESENT
                          THE HON'BLE MR JUSTICE ASHOK S. KINAGI
                                            AND
                            THE HON'BLE MR JUSTICE RAJESH RAI K
                          REGULAR FIRST APPEAL NO. 100108 OF 2021
                                         (PAR/POS)
                   BETWEEN:

                   SMT. CHANDRAWWA W/O. PARAPPA GUNDI
                   AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
                   R/O: TATAGAR GALLI, AT/PO. BANAHATTI,
                   TAL: JAMAKHANDI, DIST BAGALKOT, PIN-587311
                                                                ...APPELLANT

                   (BY SRI. VIJAYKUMAR B. HORATTI, ADVOCATE)

                   AND:

Digitally signed   1.     GANGAPPA S/O. BALAPPA CHINCHALI
by
SHIVAKUMAR                (SINCE DECEASED BY HIS LR'S)
HIREMATH
Date:
2024.02.22
14:44:58 +0530
                   1.(A) PARVATI W/O. GANGAPPA CHINCHALI,
                         AGE: 68 YEARS, OCC: HOUSE HOLD WORK,
                         R/O: SHIROL, TAL: MUDHOL,
                         DIST: BAGALKOT, PIN:587311.
                   1.(B) BALAPPA S/O. GANGAPPA CHINCHALI,
                         AGE: 48 YEARS, OCC: AGRICULTURE,
                         R/O: SHIROL, TAL: MUDHOL,
                         DIST: BAGALKOT, PIN:587311.

                   1.(C) SADASHIV S/O. GANGAPPA CHINCHALI,
                         AGE: 46 YEARS, TAL: MUDHOL,
                         DIST: BAGALKOT PIN-587311.
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                                   RFA No. 100108 of 2021




1.(D) SUVARNA W/O. LAXMAN TOOPAGI,
      AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
      R/O: NEAR BRAHMANAND TEMPLE,
      AT/PO: RABAKAVI-587314,
      TQ: RABAKHAVI-BANHATTI, DIST: BAGALKOT.

1.(E)   SUMITRA W/O. ASHOK MAALGAR,
        AGE: 35 YEARS, OCC: HOUSE HOLD WORK,
        R/O: BANAHATTI-587311,
        TQ: RABAKHAVI-BANAHATTI, DIST: BAGALKOT.

1.(F)   SHRISHAIL S/O. GANGAPPA CHINCHALI,
        AGE: 30 YEARS, OCC: AGRICULTURE,
        R/O: SHIROL, TAL: MUDHOL,
        DIST: BAGALKOT, PIN-587311.

2.      RYAVAPPA S/O. BALAPPA CHINCHALI
        AGE: 49 YEARS, OCC: COOLIE,
        R/O: AKKIMARADI, TAL: MUDHOL,
        DIST: BAGALKOT, PIN 587312.

3.      NEELAWWA W/O. RAMAPPA KONNUR,
        AGE: 58 YEARS, OCC:: HOUSEHOLD WORK,
        R/O: AKKIMARADI, TAL: MUDHOL,
        DIST: BAGALKOT, PIN-587312.

4.      ALLAWWA W/O. KADAPPA GUNDI
        AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
        R/O: TATAGAR GALLI, AT/POST: BANAHATTI,
        TAL: JAMKHANDI,
        DIST: BAGALKOT-587311.

                                          ...RESPONDENTS

(BY SRI. PRASHANT S. HOSAMANI, ADVOCATE FOR R1(A TO
F); NOTICE SERVED TO R2, R3, R4)

     THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF
CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 18.08.2016 PASSED IN O.S.NO.39/2014 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS COURT, MUDHOL AND TO DECREE THE SUIT AS
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                                       RFA No. 100108 of 2021




PRAYED IN THE PLAINT BY APPELLANT/PLAINTIFF NO.3, IN THE
INTEREST OF JUSTICE AND EQUITY.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:


                        JUDGMENT

This appeal is filed by the appellant challenging the

Judgment and preliminary decree dated 18.08.2016

passed in O.S.No.39/2014 by the Senior Civil Judge and

JMFC Court, Mudhol.

2. For the sake of convenience, the parties are

referred to as per their ranking before the trial Court.

3. Plaintiff No.3 is the appellant. The defendants

and plaintiff Nos.1 and 2 are the respondents.

4. The plaintiffs have filed a suit for partition and

separate possession against the defendants in respect of

the suit schedule property. It is the case of the plaintiffs

that, the plaintiffs and defendant No.1 are the members of

the Hindu undivided joint family and the suit property is an

ancestral joint family property of the plaintiffs and

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defendant No.1. Defendant No.2 is the divided brother of

plaintiffs and defendant No.1. Plaintiffs requested

defendant No.1 to effect the partition. But the defendant

No.1 denied to effect partition. Hence, the cause of action

arose for the plaintiffs to file a suit for partition and

separate possession.

5. The defendant No.1 appeared and filed his

written statement. The defendant No.2, in spite of service

of summons, remained absent and he was placed ex-

parte. The defendant No.1 admitted the relationship of the

parties in his written statement. It is also admitted that,

defendant No.2 is the divided brother of plaintiffs and

defendant No.1 and R.S.No.398/3 measuring 3 acres 20

guntas was allotted to his share. Later on he sold it to

third parties and he has no share in the suit land. It is

further contended that, the propositus of the family was

one Balappa Chinchalli and he died in the year 1968 and

after his demise his legal representatives' names were

recorded in the revenue records in respect of

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R.S.Nos.317/2 and 318/2 and it is contended that in the

year 1981, the family was in need of money and so all the

family members jointly sold the said lands to Gurulingappa

Ramappa Chinchali. By that time all the plaintiffs were

already married and they were not the joint family

members. It is contended that, defendant Nos.1 and 2

purchased Sy. No.398 out of their self earnings.

Thereafter, they divided their property and Survey

No.398/2 measuring 3 acre 20 guntas was fallen to the

share of defendant No.1, whereas, survey No.398/3

measuring 3 acres 20 guntas was fallen to the share of

defendant No.1 and defendant No.2 sold the property

allotted to his share for his family and legal necessity. Son

of the defendant No.2 namely Babu filed a suit against the

defendant No.1 and lost the same, hence, it is contended

that defendant No.2 has instigated the plaintiffs to file the

present case, hence, on this ground he prays to dismiss

the suit.

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6. The trial Court on the basis of the pleadings of

the parties framed the following issues:

(i) Whether the plaintiffs prove that, suit property R.S.No.398/2 measuring 4As-13Gs of Shirol is joint ancestral Hindu undivided family property of plaintiffs and defendant No.1 as contended in para 3 of plaint?

(ii) Whether defendant no.1 proves that original joint family ancestral properties are already sold in 1981 by the consent of other heirs and there was no joint family status in 1981 as contended in para 9 of written statement?

(iii) Whether defendant no.1 further proves that the suit property bearing R.S.No.398/2 measuring 3AS-20Gs was purchased out self earnings of defendant Nos.1 and 2 and subsequently they partitioned that property and R.S.No.398/2 measuring 3As-20Gs has fallen to share of defendant No.1 and property allotted to defendant No.1 was sold by them as contended in para 9 of written statement?

(iv) Whether plaintiffs are entitled for partition and separate possession in suit properties? Is so, to what extent?

(v) What order or decree?

7. The plaintiffs in order to prove their case,

plaintiff No.1 was examined as P.W.1 and got marked

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three documents as Ex.P.1 to Ex.P.3. The defendants

examined three witnesses as D.W.1 to D.W.3 and got

marked 19 documents as Ex.D.1 to Ex.D.19. The trial

Court on the assessment of oral and documentary

evidence, answered issue Nos.1 and 4 in the negative,

issue Nos.2 and 3 in the affirmative and issue No.5 as per

the final order. The suit of the plaintiffs came to be

dismissed. Being aggrieved by the Judgment and

preliminary decree, the plaintiff No.3 filed this appeal.

8. An application for condonation of delay is filed

along with an affidavit stating that the trial Court after

hearing the suit has dismissed the suit filed by the

plaintiffs stating that the suit schedule property is the self

acquired property of the defendant No.1 and the plaintiffs

are not entitled for any share in the suit schedule

properties. It is stated that, there is a delay in filing the

appeal. It is stated that, the appellant/plaintiff No.3 is an

illiterate woman and was not aware of the limitation period

for preferring the appeal and it is also contended that, the

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defendant No.1 had assured the appellant/plaintiff No.3

and respondent Nos.3 and 4 that he will give money or

something else as part of their share in the suit schedule

property, but when they asked, the defendant No.1 used

to drag the matter by giving false assurance and hence,

the delay has caused in filing the appeal and further the

counsel appearing for the respondent No.1 advised to file

regular first appeal challenging the Judgment passed in

O.S.No.39/2014. Therefore, the delay is caused in filing

the appeal.

9. The respondent No.1 has filed objections to the

said application.

10. Heard the learned counsel for the parties and

perused the records.

11. As the plaintiffs have filed suit for partition and

separate possession in the year 2014, the plaintiffs have

contested the suit and the trial Court has dismissed the

suit vide Judgment dated 18.08.2016. After a lapse of five

years, the appellant/plaintiff No.3 has filed the appeal

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challenging the Judgment and the preliminary decree. The

appellant/plaintiff No.3 has stated that the respondent

No.1 gave assurance that he will give money or something

else as part of their share in the suit schedule property. In

order to substantiate the contention of the

appellant/plaintiff No.3, the appellant/plaintiff No.3 has

not produced any records to establish that the respondent

No.1 has assured respondent Nos.3 and 4 and further the

appellant has not shown sufficient cause for filing the

appeal at a belated stage, that too after a lapse of five

years. Thus, there is an inordinate delay in filing the

appeal.

12. Thus, there is inordinate delay on the part of

the appellant in approaching this Court. The

appellant has not explained the delay satisfactorily. Thus,

doctrine of delay and laches should not be lightly brushed

aside. The Court should bear in mind that while

exercising jurisdiction, it has the duty to protect the

right of the citizen, but simultaneously it has to keep itself

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alive to the primary principle that when an aggrieved

person without reason approaches the Court at their own

leisure or pleasure, the Court would be under legal

obligation to scrutinize whether the lis at a belated stage

should be entertained or not. It may be noted that delay

comes in the way of equity. In certain circumstances

delay and laches may not be fatal but in most

circumstances inordinate delay would only invite disaster

for the litigant who knocks at the doors of the Court.

Delay reflects inactivity and inaction on the part of a

litigant - a litigant who has forgotten the basic norms,

namely, "procrastination is the greatest thief of time"

and second, law does not permit one to sleep and rise like

a phoenix. Delay does bring in hazard and causes injury to

the lis. A Court is not expected to give indulgence to such

indolent persons - who compete with `Kumbhakarna' or

for that matter `Rip Van Winkle'. Thus, there is delay in

filing the appeal. Such inordinate delay of 1172 days in

filing second appeal does not deserve any indulgence.

Hence, on the ground delay and laches, the appeal is

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liable to be dismissed at the very threshold. The Hon'ble

Apex Court in the case of Chennai Metropolitan Water

Supply and Sewerage Board and others vs.

T.T.Murali Babu reported in 2014(4) SCC 108, declined

to condone the delay of four years in approaching the

Court. The Hon'ble Apex Court in the case of Majji

Sannemma @ Sanyasirao vs. Reddy Sridevi & Ors.,

in Civil Appeal No.7696/2021 disposed of on

16.12.2021 relying on the judgment of the said Court in

the case of Basavaraj and another vs. Special Land

Acquisition Officer reported in (2013)14 SCC 81

has observed as under:

"The expression "sufficient cause" cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party."

It is further observed that,

"Even though limitation may harshly affect the rights of a party but it has to be applied with all its rigour when prescribed by statute."

It is further observed that,

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"In case a party has acted with negligence, lack of bonaf ides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions."

It is observed that,

"Each application for condonation of delay has to be decided within the framework laid down by this Court".

It is further observed that,

"If Courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to the legislature."

The Hon'ble Apex Court has declined to condone the

delay of 1011 days in preferring the second appeal.

Further, the Hon'ble Apex Court in the case of

Lingeswaran Etc. vs. Thirunagalingam in Special

Leave to Appeal (C) Nos.2054-2055/2022

disposed of on 25.02.2022, held that when it is found

that the delay is not properly explained, the application to

condone the delay is required to be dismissed. The

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Hon'ble Apex Court declined to condone the delay of 465

days.