Karnataka High Court

Sri. Jeelan Basha Son Of B. Noor Ahamed vs Sri. Dodda Thippaiah Son Of Sadakalappa on 6 January, 2025

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                                                            RFA No. 100395 of 2023
                                                        C/W RFA No. 100304 of 2023



                                 IN THE HIGH COURT OF KARNATAKA,
                                         DHARWAD BENCH
                             DATED THIS THE 06TH DAY OF JANUARY, 2025
                                              PRESENT
                              THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                                  AND
                              THE HON'BLE MR. JUSTICE UMESH M ADIGA

                           REGULAR FIRST APPEAL NO. 100395 OF 2023 (FDP)
                           C/W REGULAR FIRST APPEAL NO. 100304 OF 2023

                    IN RFA NO.100395 OF 2023:
                    BETWEEN:

                    SRI. JEELAN BASHA
                    S/o. B. NOOR AHAMED
                    AGED ABOUT 51 YEARS, MUSLIM,
                    RESIDENT OF DOOR NO.88/A,
                    WARD NO.24, SHAREEF STREET,
                    COWL BAZAAR, BALLARI-583 102.
                                                                        ...APPELLANT
                    (BY SRI. B.CHIDANANDA, ADVOCATE)

                    AND:

Digitally signed by 1.   SRI. DODDATHIPPAIAH
MOHANKUMAR B             S/o. SADAKALAPPA
SHELAR                   AGED ABOUT 43 YEARS,
Location: High           AGRICULTURIST,
Court of Karnataka,
Dharwad Bench            R/O. CHAGANUR VILLAGE,
                         BALLARI TALUK AND DISTRICT-583 111.

                    2.   SRI. SANNATHIPPAIAH
                         S/o. SADAKALAPPA
                         AGED ABOUT 40 YEARS,
                         AGRICULTURIST,
                         R/O. CHAGANUR VILLAGE,
                         BALLARI TALUK
                         AND DISTRICT-583 111.
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                                         RFA No. 100395 of 2023
                                     C/W RFA No. 100304 of 2023




3.   RUDRAMMA
     D/O. SADAKALAPPA
     AGED ABOUT 37 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK AND DISTICT-583 111.

4.   RUDRAMMA
     W/O. RUDRAPPA
     AGED ABOUT 30 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK AND DISTRICT-583 111.

     SRI. SADAKALAPPA
     SINCE DECEASED BY HIS LR's.

5.   SMT. SIDDALINGAMMA
     W/o. LATE SADAKALLAPPA,
     AGED ABOUT 66 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK
     AND DISTRICT-583 111.

                                                  ...RESPONDENTS
(BY SMT. PALLAVI S. PACHHAPURE, ADVOCATE)

     THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41
RULE 1 AND 2 OF CPC., 1908, PRAYING TO, SET ASIDE THE ORDER
DATED 11.05.2020 MADE IN F.D.P NO. 29/2016, PASSED BY THE
PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE
BALLARI AND FURTHER TO DISMISS THE FDP APPLICATION, IN THE
INTEREST OF JUSTICE AND ETC.

IN RFA NO.100304 OF 2023:
BETWEEN:

SRI. JEELANBASHA
S/o. B. NOORAHAMED
AGED ABOUT 51 YEARS, MUSLIM,
RESIDENT OF DOOR NO.88/A,
WARD NO.24,
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                                       RFA No. 100395 of 2023
                                   C/W RFA No. 100304 of 2023



SHAREEF STREET,
COWL BAZAAR,
BALLARI-583 102.
                                                   ...APPELLANT
(BY SRI. B.CHIDANANDA, ADVOCATE)

AND:

1.   SRI. DODDATHIPPAIAH
     SON OF SADAKALEPPA
     AGED ABOUT 43 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK AND DISTRICT-583 111.

2.   SRI. SANNATHIPPAIAH
     SON OF SADAKALEPPA
     AGED ABOUT 40 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK AND DISTRICT-583 111.

3.   RUDRAMMA
     D/o. SADAKALEPPA
     AGED ABOUT 37 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK AND DISTICT-583 111.

4.   RUDRAPPA
     S/O. SADAKALEPPA
     AGED ABOUT 35 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK AND DISTRICT-583 111.

     SRI. SADAKALEPPA
     SINCE DECEASED BY HIS LR's.

5.   SMT. SIDDALINGAMMA
     AND R1 TO R4 HEREIN
     WHO ARE ALREADY ON RECORD,
     AGED ABOUT 68 YEARS,
     AGRICULTURIST,
     R/O. CHAGANUR VILLAGE,
     BALLARI TALUK AND DISTRICT-583 111.
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                                        RFA No. 100395 of 2023
                                    C/W RFA No. 100304 of 2023



6.    THE ASSISTANT COMMISSIONER
      CUM THE SPECIAL LAND ACQUISITION OFFICER,
      K.I.A.D.B, BALLARI-583 101.

7.    THE SPECIAL LAND ACQUISITION OFFICER
      K.I.A.D.B., DHARWAD-580 009.
                                             ...RESPONDENTS
(BY SMT. PALLAVI S. PACHHAPURE, ADVOCATE FOR R1 TO R5;
SRI. PAVAN B. DODDATTI, ADVOCATE FOR R6 AND R7)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 31.10.2015 PASSED IN
O.S.NO.158/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CHIEF JUDICIAL MAGISTRATE, AT BALLARI, DECREEING
THE SUIT FILED FOR PARTITION AND POSSESSION.

     THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:          THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
                                  AND
                 THE HON'BLE MR. JUSTICE UMESH M ADIGA

                      ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

RFA No.100304/2023 is arising out of the judgment

and preliminary decree dated 31.10.2015 passed in

O.S.No.158/2010 by the learned Principal Senior Civil Judge

and CJM, Ballari and RFA No.100395/2023 is arising out of

final decree dated 11.05.2020 passed in FDP No.29/2016 by

the learned Principal Senior Civil Judge and CJM, Ballari.

2. For convenience, parties are referred to as per

their ranking before the trial Court. The appellant was the

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defendant No.1 in the original suit/respondent No.1 in FDP,

respondent No.1 to 4 were the plaintiffs, respondent No.5

was the defendant No.2 and the respondents No.6 and 7

were defendants No.3 and 4.

3. Brief facts leading rise to the filing of this regular

first appeal are as under:

The plaintiffs filed a suit against the defendants for

partition and separate possession in respect of the suit

schedule property. It is the case of the plaintiffs that,

plaintiffs No.1 to 4 are the children of Sadakalappa i.e.,

defendant No.2 and grandchildren of late Chagappa. During

the life time of their grandfather, he acquired the suit

schedule property in his name and he was in peaceful

possession and enjoyment of the suit schedule property, till

today. The defendant No.2 without the knowledge of

plaintiffs had executed a registered sale deed in favour of

defendant No.1 in 2007 and the said registered sale deed is

not binding on them. The plaintiffs are the members of Hindu

undivided joint family and no partition is effected between

them. The plaintiffs are having 1/5th share each in the suit

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schedule property. The plaintiffs requested defendant No.2

to effect the partition, but defendant No.2 refused to effect

the partition. It is stated that defendants No.3 and 4 have

initiated acquisition proceedings and issued a notice under

Section 4(1) of Karnataka Land Acquisition Act, 1894. Hence,

a cause of action arose for the plaintiffs to file a suit.

Accordingly, prayed to decree the suit.

4. Defendant No.1 filed a written statement denying

the averments made in the plaint and defendant No.4 filed a

written statement contending that defendant No.1 was the

absolute owner of the suit property and karta of the joint

family. Defendant No.2 executed a registered sale deed in

favour of defendant No.1 for valuable consideration under a

registered sale deed dated 01.01.2008. The sale deed

executed by defendant No.2 in favour of defendant No.1 is

binding on the plaintiffs. It is stated that defendants No.3

and 4 acquired portion of land and fixed the compensation @

Rs.12.00 lakhs per acre. It is stated that though, the joint

family was consisting other properties but, the plaintiffs have

shown the property which is purchased by defendant No.1 as

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schedule property land. Hence, the suit filed by the plaintiffs

is not maintainable. Hence, pray to dismiss the suit against

defendant No.1. Defendant No.4 filed a written statement

contending that they have acquired the land and issued a

cheque to the concerned land owners. Hence, prayed to

dismiss the suit against defendant No.4.

5. The trial Court, based on the pleadings of the

parties, framed the following issues:

ISSUES

1. Whether the plaintiff proves that, the suit schedule property is the ancestral and joint family property of themselves and defendants No.2 as urged?

2. Whether the plaintiff further prove that, they are entitled for 1/5th share each in the suit schedule property as sought?

3. Whether the plaintiffs further prove that, sale deed executed by the defendant No.2 in favour of defendant No.1 in the year 2007 is not binding on them?

4. Whether the defendant No.1 proves that the defendant No.2 being Karta of joint family executed the sale deed for joint family necessity in his favour?

5. Whether the defendant No.1 further proves that without seeking the sale deed set aside the plaintiffs are not entitled only relief as urged?

6. Whether the plaintiffs are entitled for the relief of partition and separate possession as sought?

7. What order or decree?"

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6. The plaintiffs to prove their case plaintiffs No.1

and 2 got examined themselves as PWs-1 and 2 and marked

9 documents as Exs.P.1 to P.9. In rebuttal, defendants No.1

and 4 have not led their evidence and no documents were

marked on behalf of the defendants. The trial Court, after

recording the evidence of PWs-1 and 2 and on assessment of

oral and documentary evidence, answered issues No.1 to 3

and 6 in the affirmative, issues No.4 and 5 in the negative

and consequently decreed the suit of the plaintiff. It is

declared that the plaintiffs are entitled to 1/5th share each in

the suit schedule property by metes and bounds. Further,

declared that the registered sale deed dated 31.12.2007

executed by the defendant No.2 in favour of defendant No.1

in respect of suit schedule property is held to be not binding

on the plaintiff. As the defendant No.1 aggrieved by the

judgment and preliminary decree dated 31.10.2015 passed

in O.S.No.158/2010, filed an appeal in RFA No.100304/2023.

Pursuant to the preliminary decree passed in

O.S.No.158/2010, the plaintiffs initiated the final decree

proceedings in FDP No.29/2016. The trial Court drawn final

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decree dated 11.05.2020. The defendant No.1, aggrieved by

the final decree dated 11.05.2020 passed in FDP

No.29/2016, filed RFA No.100395/2023.

7. The defendant No.1 in both the cases filed

application, I.A.No.1/2023 in RFA No.100304/2023 for

condoning the delay of 1987 days in filing the appeal and

application in I.A.No.1/2023 for condoning the delay of 406

days in filing RFA No.100395/2023.

8. The defendant No.1 in RFA No.100304/2023, in

support of application filed an affidavit stating that the

appellant was not aware of the judgment till recently i.e.,

in the first week of June 2023 and he was unwell from

01.11.2015 to 01.06.2023, as he was unable to move and

walk properly and doctor advised him to take complete

bed rest and not to move about. In the first week of June -

2023, one of his family friend visited his house to enquire

about his health condition. During the course of casual

talks and discussion of family issues, he informed that

there is a rumor that the plaintiffs have won the case.

Thereafter, immediately, he tried to contact the earlier

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advocate to know about the status of the case and he was

not available for contact. In the first week of June 2023,

he contacted his local counsel at Ballari and sought his

advise. He informed to file an appeal against the judgment

before the High Court. Thus, the delay has been caused in

filing the appeal in RFA No.100304/2023. The defendant

No.1 has reiterated the reasons stated in the affidavit filed

in RFA No.100304/2023 enclosed to I.A.No.1/2023 in RFA

No100395/2023 also.

9. Heard the learned counsel for the defendant

No.1.

10. Learned counsel for defendant No.1 submits

that the appellant was suffering from ailment and he was

advised to take bed rest. He was not aware about the

disposal of the suit by the trial Court. He submits that

defendant No.1 came to know about the disposal of the

suit while he was discussing with his relative and

immediately he contacted his local counsel. He submits

that defendant No.1 could not file appeal because of ill-

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health. Further, to buttress his argument, he placed

reliance on the judgment of the Hon'ble Apex Court in the

case of Collector, Land Acquisition, Anantnag and

another vs. Mst. Katiji and Others reported in (1987)

2 SCC 107. Hence, on these grounds he prays to allow

the applications.

11. Perused the records and considered the

submissions of the learned counsel for defendant No.1, in

both the cases.

12. The plaintiffs have filed suit in

O.S.No.158/2010. The defendant No.1 appeared through

the counsel and filed a written statement. The plaintiffs

No.1 and 2 examined as PWs-1 and 2 and got marked

documents. The defendants have not entered the witness

box. The trial Court decreed the suit of the plaintiffs, vide

judgment dated 31.10.2015. Thereafter, the plaintiffs

initiated the final decree proceedings in FDP No.29/2016.

The defendant No.1 herein, appeared through the counsel

in the final decree proceedings and the final decree Court

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appointed a Court Commissioner. The Court Commissioner

has submitted a report with survey sketch, with respect to

suit schedule properties and the counsel appearing for

defendant No.1 submitted no objection to the

Commissioner's report, and the counsel appearing for the

plaintiffs also submitted no objection to the

Commissioners report. The final decree Court considered

no objections submitted to the Court Commissioner's

report and accepted the same, and allowed the petition

and ordered to draw the final decree as per the

preliminary decree and survey sketch, produced by the

Court Commissioner was considered as the part and parcel

of the decree. Though, the judgment and preliminary

decree was passed on 31.10.2015 defendant No.1

appeared in final decree proceedings and did not

challenge the judgment and preliminary decree passed in

O.S.No.158/2010 till 2023. Defendant No.1 participated in

the final decree proceedings and now, it is stated that he

was suffering from ailment since 2015 to 2023. The said

statement cannot be accepted for the reasons that the

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defendant No.1 participated in the final decree

proceedings and the final decree was drawn vide order

dated 11.05.2020. Thus, defendant No.1 has failed to

show the sufficient cause for condonation of delay of 1987

days in filing the appeal in RFA No.100304/2023 and 406

days of delay in RFA No.100395/2023. Thus, doctrine of

delay and laches should not be brushed aside.

13. The Court should bear in mind while exercising

jurisdiction. It has the duty to protect the right of the

citizen, but simultaneously, it has to keep itself alive to the

primary principle that when an aggrieved person without

reason approaches the Court, on their own leisure or

pleasure, the Court be under legal obligation to scrutinize

whether the lis is 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 a fatal, but, in most circumstances, inordinate delay

would only invite disaster for the litigant who knocks at

the door of the Court. Delay reflects inactivity and inaction

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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

1987 days and 406 days in filing the first appeals do not

deserve any indulgence. Hence, on the ground of delay

and laches, the appeals are 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

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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,-

"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."

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14. 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 Hon'ble Apex Court

declined to condone the delay of 465 days.

15. Considering the law declared by the Hon'ble