Karnataka High Court
The Agricultural Produce Market ... vs State Of Karnataka on 4 November, 2024
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RSA No. 100355 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 100355 OF 2016 (DEC)
BETWEEN:
THE AGRICULTURAL PRODUCE
MARKET COMMITTEE, LAXMESHWAR,
DIST. GADAG-582101
REP. BY ITS SECRETARY.
... APPELLANT
(BY SRI. RAJASHEKHAR B. HATTI, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REP. BY DEPUTY COMMISSIONER,
Digitally
GADAG DISTRICT, GADAG-582101.
signed by
VISHAL
VISHAL NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.20
12:14:51
2. LAND ACQUISITION OFFICER,
+0530
AND ASST. COMMISSIONER,
GADAG DIVISION, GADAG-582101.
NINGAPPA S/O. LAXMAPPA HADPAD,
SINCE DECEASED BY HIS LRS.,
3. CHANNAPPA S/O. NINGAPPA HADPAD,
AGED ABOUT 63 YEARS,
OCC. BARBER, R/AT: BASTI BAN,
LAXMESHWAR, DIST. GADAG-582101.
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RSA No. 100355 of 2016
4. SMT. BASAVVA
W/O. CHANDRASHEKHAR HADAGALI,
AGED ABOUT 61 YEARS,
OCC. HOUSEHOLD WORK,
NEAR CATTLE MARKET, NEAR BUS STAND,
HAVERI, TQ AND DIST. HAVERI-581110.
5. MAHADEVAPPA S/O. NINGAPPA HADPAD,
AGED ABOUT 59 YEARS, OCC. BARBER,
R/AT. BASTI BANA, LAXMESHWAR,
DIST. GADAG-582101.
6. SMT. MALLAVVA
W/O. VEERBHADRAPPA HADPAD,
AGED ABOUT 57 YEARS,
OCC. HOUSEHOLD WORK,
R/AT. NEAR BUS STAND,
SHIGGAON, DIST. HAVERI-581110.
7. ADAPPA S/O. NINGAPPA HADPAD,
AGED ABOUT 55 YEARS,
OCC. GOVERNMENT SERVICE,
R/O. NEELGARPETH, BASTI BAN,
LAXMESHWAR, DIST. GADAG-582101.
8. LAXMAN S/O. NINGAPPA HADPAD,
AGED ABOUT 52 YEARS,
OCC. BARBER, R/O: NEELGARPETH,
BASTI BAN, LAXMESHWAR,
DIST. GADAG-582101.
9. SOMANNA S/O. NINGAPPA HADPAD,
AGED ABOUT 41 YEARS,
OCC. BARBER, R/O: NEELGARPETH,
BASTI BAN, LAXMESHWAR,
DIST. GADAG-582101.
10. SMT. GIRIJAVVA W/O. DUNDAPPA HADPAD,
AGED ABOUT 45 YEARS,
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RSA No. 100355 of 2016
OCC. HOUSEHOLD WORK, R/O. KALALKOND,
TQ. SAVANUR, DIST. HAVERI-581110.
11. SMT. LAXMAVVA
W/O. MAHANTESH ADARGUNCHI,
AGED ABOUT 51 YEARS,
OCC. HOUSEHOLD WORK,
R/O. ADARGUNCHI, TQ. HUBBALLI,
DIST. DHARWAD-580001.
12. IRAPPA S/O. LAXMAPPA HADPAD,
AGED ABOUT 85 YEARS,
R/O. NEAR RAMALINGESHWAR TEMPLE,
GOKUL ROAD, HUBBALLI.
13. VEERABHADRAPPA S/O. LAXMAPPA HADPAD,
SINCE DECEASED BY HIS LRS
13A. SMT. PUTTAWWA@ SHANTAWWA
W/O. HANUMANTHAPPA HADAPAD,
AGE: 50 YEARS, OCC. AGRICULTURE,
R/O. HARTI, TQ. GADAG, DIST. GADAG.
(DECEASED)
13B. SRI. RUDRAPPA S/O. VEERABHADRAPPA
HADAPAD,
AGE: 48 YEARS, OCC. SALOON,
R/O. BASTIBAN-LAXMESHWAR,
TQ. SHIRAHATTI, DIST. GADAG.
13C. SMT. ANSAWWA @ NEELAWWA
W/O. YALLAPPA HADAPAD,
AGE: 46 YEARS, OCC. AGRICULTURE,
R/O. SOUNSHI, TQ. KUNDAGOL, DIST.
DHARWAD.
13D. SMT. HIRIYAKKA @ IRAWWA
W/O. SHIVAYOGAPPA HADAPAD.
AGE: 44 YEARS, OCC. HOUSEHOLD,
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RSA No. 100355 of 2016
R/O. SHIRABADAGI, TQ. SAVANUR, DIST.
HAVERI.
13E. SRI. YALLAPPA
S/O. VEERABHADRAPPA HADAPAD,
AGE: 34 YEARS, OCC. SALOON,
R/O. BASTIBAN-LAXMESHWAR,
TQ. SHIRAHATTI, DIST. GADAG.
13F. SMT. RENUKA @ MAHADEVI
W/O. MAHANTESH DODAMANI,
AGE: 31 YEARS, OCC. AGRICULTURE,
R/O. ALAKATTI, TQ. KALGHATGI,
DIST. DHARWAD.
14. SHIVAPPA S/O. LAXMAPPA HADPAD,
AGED ABOUT 75 YEARS,
OCC. AGRICULTURE AND BARBER,
R/O. NEELGARPETH, BASTI BANA,
LAXMESHWAR.
15. IRAPPA S/O. BASAVENAPPA HADPAD,
AGED ABOUT 48 YEARS,
OCC. AGRICULTURE AND BARBER,
R/O. NEELGARPETH, BASTI BANA,
LAXMESHWAR.
16. GURUPADAPPA S/O. TIPPANNA HADPAD,
SINCE DECEASED BY HIS LRS
16A. IRAWWA W/O. HANUMANTHAPPA HADAPAD,
AGE: 46 YEARS, OCC. AGRICULTURE,
R/O. ARALIKATTI, TQ. KUNDAGOL,
DIST. DHARWAD.
16B. VEERABADRAPPA S/O. GURUPADAPPA
@GUDADURAPPA HADAPAD,
AGE: 43 YEARS, OCC. AGRICULTURE,
R/O. NEELAGARPETH, BATIBAN-LAXMESHWAR,
TQ. SHIRAHATTI, DIST. GADAG.
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RSA No. 100355 of 2016
16C. SMT. RATNAWWA
W/O. KALLAPPA HADAPAD,
AGE: 41 YEARS, OCC. AGRICULTURE,
R/O. NEAR COURT COMPLEX, KUNDAGOL,
Q. KUNDAGOL, DIST. DHARWAD.
17. RACHAPPA S/O. TIPPANNA HADPAD,
AGED ABOUT 55 YEARS,
OCC. AGRICULTURE AND BARBER,
R/O. NEELGARPETH,
BASTI BANA, LAXMESHWAR.
... RESPONDENTS
(BY SMT. KIRTILATA PATIL, HCGP FOR R1 AND R2;
SRI. C.S.SHETTAR, ADVOCATE FOR
SRI. G.K.HIREGOUDAR, ADVOCATE FOR R3 TO R11,
R13(B TO F) AND R16(A,B);
R3 TO R8, R10 AND R11 REPRESENTED BY GPA R9;
R13(B TO F) ARE TREATED AS LRS OF DECEASED R13(A);
R13(A)DECEASED;
R12, R14, R15, R16(C) AND R17 ARE SERVED AND
UNREPRESENTED)
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED IN
R.A.NO.2/2011 DATED 16.02.2016 ON THE FILE OF THE
ADDL. DISTRICT AND SESSIONS JUDGE AT GADAG,
CONFIRMING THE JUDGMENT AND DECREE PASSED IN
O.S.NO.287/2003 DATED 16.04.2008 ON THE FILE OF
CIVIL JUDGE (SR.DIVN) AND CJ, GADAG AND DISMISS
THE SUIT OF THE PLAINTIFF AND PASS ANY OTHER
ORDERS AS THIS HONBLE COURT DEEMS FIT TO GRANT
IN THE CIRCUMSTANCES OF HE CASE, IN THE INTEREST
OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100355 of 2016
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
Agricultural Produce Market Committee - the
defendant No.1 (hereinafter referred to as 'APMC' for
short) is before this Court in the regular second appeal
assailing the judgment and decree in RA No.2/2011 dated
16.02.2016 on the file of the Additional District and
Sessions Judge, Gadag (hereinafter referred to as 'First
Appellate Court' for short), whereby, IA No.2 filed by the
appellant under Section 5 of the Limitation Act, came to be
dismissed and consequently, the appeal preferred by the
appellant also came to be dismissed,
2. Heard the learned counsel appearing for the
appellant and learned counsel appearing for the
respondents.
3. Learned counsel appearing for the appellant
submits that the First Appellate Court without appreciating
the explanation offered for condoning the delay in
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preferring the appeal has dismissed the IA and
consequently, dismissed the appeal.
4. It is contended by the appellant that an
opportunity needs to be accorded to the appellant, as
dismissing the appeal on the ground of delay without
giving an opportunity to contest the matter on merits has
led to miscarriage of justice. According to the learned
counsel, 1 acre of land which the plaintiff is seeking for
declaration and possession is excess pot karab land
belonging to the Government and the trial Court has
erroneously come to a conclusion that 1 acre of land
belongs to the plaintiff and grants decree in favor of the
plaintiff. Learned counsel submits that an opportunity
needs to be afforded to the appellant by condoning the
delay in preferring the appeal and the matter to be
remitted back to the First Appellate Court and consider on
merits.
5. Per contra, learned counsel appearing for the
respondents submits that the appellant having participated
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in the Execution Petition instituted by the respondents,
only after delivery warrant was issued, the appellant has
sought to prefer an appeal before the First Appellate Court
along with IA No.2 seeking to condone the delay of 920
days. The appellant having not shown his bonafides and
sufficient cause to condone the inordinate delay, the First
Appellate Court has rightly dismissed the appeal. It is
submitted that the judgment of the First Appellate Court in
dismissing the appeal on the ground of delay does not
warrant any interference by this Court.
6. Suit for declaration and possession to declare
that 1 acre land in RS No.89/2A is of the ownership of the
plaintiff. Undisputed fact is that RS No.89/2A is the
ancestral property of the plaintiff and is totally measuring
6 acres 37 guntas and under 4(1) notification of the Land
Acquisition Act, 5 acres 37 guntas was acquired for the
purpose of APMC and award was passed on 12.11.1987.
7. Before the trial Court, in order to substantiate
their claim, plaintiff No.3 examined himself as PW.1 and
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marked documents at Ex.P.1 to Ex.P.13. On the other
hand, defendant No.1 examined himself as DW.1.
8. From the material on record makes it clear that
an extent of RS No.89/2 measures 6 acres 37 guntas and
later on it was divided as RS No.89/2A measuring 1 acre
and RS No.89/2B measuring 5 acres 37 guntas and the
acquisition proceedings was in respect of 5 acres 37
guntas acquired by the APMC.
9. The contention of the plaintiff is that the
defendant No.1 is in possession of 1 acre land i.e., the suit
property and there is an encroachment made by defendant
No.1. The defendant No.1 other than stating that he is not
in possession of an extra 1 acre in RS No.89/2A, nothing is
forthcoming either in the pleadings/ written statement or
in his evidence. The trial Court based on the pleadings and
oral and documentary evidence arrived at a conclusion
that the plaintiffs are the owners of land of 1 acre in land
bearing RS No.89/2A also shown as RS No.89/2B in award
of other revenue records and directed the defendant No.1
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to hand over the possession of the suit land to the
plaintiff.
10. The appeal was preferred before the First
Appellate Court by the defendant No.1, along with an
appeal, application - IA No.2 was filed under Section 5 of
the Limitation Act, seeking to condone the delay of 920
days in filing the appeal. The suit of the plaintiff came to
be decreed on 16.04.2008, execution was levied by the
respondent/ plaintiff in EP No.47/2009. Notice was issued
in EP No.47/2009 to the appellant herein who was arrayed
as judgment Debtor No.1, judgment Debtor No.1-
appellant was represented by counsel and the proceedings
went on from the year 2009, only when delivery warrant
was issued on 04.11.2011 seeking to appoint a Court
Commissioner. The appellant chose to prefer an appeal
before the First Appellate Court in RA No.2/2011.
11. Learned counsel for the appellant placing
reliance on the decision of the Hon'ble Apex Court in the
case of Raheem Shah and Another Vs. Govind Singh
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and others1 submits that refusing to condone the delay
results in a meritorious matter being thrown out at the
very threshold and the cause of justice is being defeated.
12. This Court has absolutely no quarrel to the
settled proposition of law that, the sufficient cause
"employed by the Legislation is adequately elastic to
enable the Courts to apply the law in meaningful manner
and to sub-serve the ends of justice" and a liberal
approach in a matter instituted before the Court with the
delay has to be considered in a liberal manner. But there
is an exception to such a rule as the delay cannot be
condoned, if it is occasioned by deliberate, negligence and
not with bonafide reasons and when no sufficient cause is
made out by the party to condone the delay, the principles
of natural justice and the sufficient cause cannot be
extended to such an extent that there would be abuse of
process of law.
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13. In the instant case, the decision in Raheem
Shah placed reliance by the appellant is not applicable to
the present facts and distinguishable in light of the sole
ground that in the instant case that the appellant
participated in the execution proceedings and only when a
delivery warrant was issued, the appellant has approached
the First Appellate Court by filing an appeal. No sufficient
grounds were made out by the appellant to condone the
inordinate delay of 920 days in preferring the appeal,
which is rightly considered by the First Appellate Court.
The appellant has made out no grounds to interfere with
the order of the First Appellate Court. In so far as the
contention raised by the appellant that 1 acre of land is a
pot karab land, such a contention does not find place in
the written statement and thus it is not available for the
appellant to raise the said ground for the first time before
this Court, in the absence of any claim made in the suit.
14. The appeal has been rightly dismissed on the
ground of delay by the First Appellate Court warranting no
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interference in the second appeal and there arises no
substantial question of law to be considered under Section
100 CPC and this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
PJ/ Ct-PA
