Karnataka High Court
Shivappa S/O Hanamanth Karoshi vs Smt Rukmavva W/O Basappa Karoshi on 16 October, 2024
-1-
NC: 2024:KHC-D:14973
RSA No. 100626 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 100626 OF 2024 (PAR/POS)
BETWEEN:
SHIVAPPA S/O. HANAMANTH KAROSHI,
AGE: 38 YEARS, OCC. AGRICULTURE,
R/O. TUNGAL VILLAGE, TQ. JAMKHANDI,
DIST. BAGALKOT-587330.
...APPELLANT
(BY SMT VEENA HEGDE, ADVOCATE)
AND:
1. SMT. RUKMAVVA W/O. BASAPPA KAROSHI,
AGE: 61 YEARS, OCC. HOUSEHOLD WORK,
Digitally signed
by VISHAL
NINGAPPA
R/O. TUNGAL VILLAGE, TQ. JAMKHANDI,
PATTIHAL
Location: HIGH DIST. BAGALKOT-587330.
COURT OF
KARNATAKA
DHARWAD
BENCH
2. SMT. AKKAWWA W/O. HANAMANTH KAROSHI,
AGE: 83 YEARS, OCC. HOUSEHOLD WORK,
R/O. TUNGAL VILLAGE, TQ. JAMKHANDI,
DIST. BAGALKOT-587330.
3. SMT. GANGAVVA W/O. DASHARATH PUJARI,
AGE: 62 YEARS, OCC. HOUSEHOLD WORK,
R/O. WADRAL VILLAGE, TQ. CHIKKODI,
DIST. BELGAUM-591226.
4. SMT. SIDDAVVA W/O. PARAPPA HALABAR,
AGE: 60 YEARS, OCC. HOUSEHOLD WORK,
R/O. CHIMMAD, TQ. JAMKHANDI,
-2-
NC: 2024:KHC-D:14973
RSA No. 100626 of 2024
DIST. BAGALKOT-587312.
5. SMT. TANGEVVA W/O. IRAPPA KHAJAGANATTI,
AGE: 58 YEARS, OCC. HOUSEHOLD WORK,
R/O. TUNGAL VILLAGE, TQ. JAMAKHANDI,
DIST. BAGALKOT-587330.
6. SMT. SHIVAKKA W/O. LAXMAN NAYAK,
AGE: 55 YEARS, OCC. HOUSEHOLD WORK,
R/O. KOTABAGI , TQ. HUKKERI,
DIST. BELGAUM-591306.
7. SMT. CHANDRAWWA W/O. RAMAPPA PATIL,
AGE: 53 YEARS, OCC. HOUSEHOLD WORK,
R/O. WADRAL, TQ. CHIKKODI,
DIST. BELGAUM-591306
...RESPONDENTS
THIS RSA IS FILED U/SEC.100 OF CPC PRAYING TO ALLOW
AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE
LEARNED PRIL. CIVIL JUDGE AND 1ST ADDL JMFC, JAMKHANDI, IN
O.S.NO.7/2011 DATED 18.12.2013 AND REGULAR APPEAL
BEARING NO.51/2014 ON THE FILE OF PRL. SENIOR CIVIL JUDGE,
JAMKHANDI DATED 02.08.2016 IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS APPEAL, COMING ON FOR INTERLOCUTORY
APPLICATION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
-3-
NC: 2024:KHC-D:14973
RSA No. 100626 of 2024
ORAL JUDGMENT
The present appeal by defendant No.1 assailing the
concurrent findings of facts recorded by the Courts below,
whereby, the suit of the plaintiff for partition and separate
possession was decreed. The said appeal is accompanied
by I.A.No.1/2024 seeking to condone the inordinate delay
of 2120 days in preferring the present appeal.
2. Heard learned counsel for the appellant.
3. In support of the application in I.A.No.1/2024,
an affidavit is sworn in by one Sri Shivappa S/o
Hanamanth Karoshi, appellant in the present appeal. The
relevant portion of the affidavit is culled out and extracted
hereunder:
"2. I respectfully submits that, I have challenged the
the Judgement and Decree passed in RA No.51/2014
dated 02/08/2016 in the file of Prl. Senior Civil Judge
Jamkhandi. the Respondent No.1 has filed suit for
partition and separate possession, of her 1/8th share
in the suit scheduled properties shown in the
Schedule annexure to the plaint. The R.S No 151/1
NC: 2024:KHC-D:14973
measuring, 8 acre 11 Guntas and in RS No.
104/2/4/1 measuring 2 acre 17 Guntas are situated
at Tungal Village, Jamakhandi Taluk, Bagalkoti
district. The O.S No.7/2011 in the file of Prl.Civil
Judge and 1st Add JMFC Jamkhandi is decreed on
18/12/2013 granting 9/64th share in the suit
scheduled Properties to the Plaintiff. As Appellant I
have filed a RA No 51/2014 Questioning the Validity
of Judgement and Decree Passed in OS No 7/2011 on
the Ground of the division of the Share made by the
Trial court is not Just and proper. The Trial Court has
not Considered the written documents infavour of
Appellant herein and also on the ground that the
Appellant has not given much opportunity to place
his evidence nefore the Trial Court, Since its been
the partition suit the first appellate court heard the
matter and alllowed the appeal in part.it is submitted
that the 1st appellate Court though Confirmed with
all other issues answered infavour of the plaintiff but
regarding the Division of property is concerned the
1st appellate Court has ordered 1/16th share in suit
Scheduled Properties to the plaintiffs and disposed
off the matter on 2/8/2016.
3. It is submitted that the appellant Herein has partly
succeeded in the 1st Appeal. he did not Choose to
prefer the further appeal in the matter, it is
submitted that the 1st respondent who is original
NC: 2024:KHC-D:14973
plaintiff in OS No.7/2011 after disposal of the RA
No.51/2014 preferred an FDP No 7/2021 and three
others. The original plaintiff has filed the FDP No
7/2021 on 6/1/2022 the Notice are served and
placed as exparte. It is submitted thaton 25/10/2023
the FDP preferred Court Allowed the IA No 1 filed
under/section 54 of CPC appointed ADLR,
Jamakhandi as court Commissioner and effect
partition and Demarcate the Property as per the
Decree passed in OS NO7/2011. The ADLR issued the
notice to the appellant herein on 8/11/2023 and the
matter is posted for Report on 20/3/2024 and the
appellent issued a reply on 21/5/2024 contending
that in FDP and three others have supressed the
Judgement and Decree passed In RA No 51/2014
dated 2/8/2016 and requested the ADLR not to
execute the Order. The Appellant Herein after
submitting the reply to the ADLR immediately
Approached the Counsel Appearing In FDP NO
7/2021 and requested to Obtain all certified copies in
the matter accordingly the application was submitted
on 4/7/2014 and the same was received on by the
authority on 5/7/2024.The Appellant herein without
further delay in the matter approached the
advocxate at Dharwad on 20/7/2024 after having the
discussion on legal advice the appellant preferred the
Regular second appeal on the ground that there is a
merit in the matter. the appellant Further advised
NC: 2024:KHC-D:14973
that he can compromise the matter with his sister if
the notice is issued in this case on contrary if notice
is not issued the order passed by the 1st Appellate
Court in RA No 51/2014 will creat a anomaly in the
matter.
4. I further submit that, the above said delay is not
intentional one, but it is due to reasons stated above.
If the delay is not condoned the petitioner will put
irreparable loss. If the same is allowed no loss or
injury will caused to the other side."
4. The reasons mentioned in the affidavit did not
appraise the conscious of this Court for unexplained delay
from 02.08.2016 to 2024 since the regular appeal filed by
the appellants was dismissed on 02.08.2016 itself, which
fact was very much within the knowledge of the appellant
as is evident from the affidavit filed along with the
application and the appellants having not approached this
Court within reasonable time, already a legal right has
been created in favour of the respondents. The delay is
not of few days but of 2120 days i.e., more than five years
and the reasons assigned is not acceptable and the appeal
is to be dismissed on the ground of delay and latches. It
NC: 2024:KHC-D:14973
is well settled position of law that the existence of
"sufficient cause" to the satisfaction of the Court is the
condition set for the Court to exercise its discretion in the
matter of condoning delay. In the circumstances, the
cause stated in the affidavit cannot said to be bonafide or
sufficient cause. Despite the delay, this Court has
examined the appeal on merits to ensure justice is not
denied on ground of limitation, there is no merit in the
appeal and no substantial question of law arises for
consideration in the present second appeal to be dealt with
under Section 100 CPC.
5. Accordingly, the appeal is dismissed on the
ground of delay for having not made out sufficient cause
to condone inordinate delay of 2120 days as well as on
merits.
SD/-
(JUSTICE K.S.HEMALEKHA)
JUDGE
AT
CT:PA
