acres 10 guntas.
acres 23 guntas.
acres 32 guntas.
All situated at Goudanahalli village Chincholi
Taluka (herein referred to as 'suit properties').
03. It is contended inter-alia that one Tippanna, the
original propositus, passed away about 32 to 33 years ago
leaving behind his wife Smt. Tootamma and two daughters
namely the plaintiff and defendant No.2. After his demise
suit properties were transferred in the name of his wife
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Smt. Tootamma. That the suit properties stood in the joint
possession and enjoyment of the plaintiff and defendants
No.1 and 2. Defendant No.2 without the knowledge of the
plaintiff, transferred the suit schedule properties in the
name of her son - defendant No.3. Defendant No.3 taking
advantage of his name appearing in the records was acting
detriment to the interest of plaintiff. That the plaintiff
being entitled for her share had requested for partition and
allotment of share which was refused, resulting in she
filing the suit.
04. In the written statement the defendants No.1 to
3 denied the plaint averments, however, the relationship
between parties is admitted. It is contented that after the
demise of Tippanna, as he had no male issues, the
husband of defendant No.2 lived with the family of the
defendants. Defendants had made huge investments and
incurred expenses for the marriage of the plaintiff and the
marriage of her daughter. The plaintiff had consented
before the elders of Gaudanahalli, Chincholli and
Chimmaidali villages that she would not seek her share in
the suit properties. As such, defendants No.1 and 2 had
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transferred the suit properties in the name of defendant
No.3, but since the plaintiff had relinquished her share in
the properties, she was not entitled for the share,
Accordingly, sought for dismissal of the suit.
05. The Trial Court framed the following issues:
1. Whether plaintiff proves that she is in the
joint possession over the suit schedule
properties with the defendants.?
2. Whether plaintiff proves that 3rd defendant
is illegally transferred suit schedule
properties in his name?
3. Whether the defendants proves that the
plaintiff is relinquish her rights in the suit
schedule properties?
4. Whether the defendant proves that this
court has no pecuniary jurisdiction to try
this suit?
5. Whether the plaintiff is entitled for relief as
sought?
6. What order or decree?
06. Plaintiff examined herself as PW.1 and produced
03 documents as per Ex.P.1 to 3. The defendants No.3
examined as DW.1 and three other witness as DW.2 to
DW.4 and marked 07 documents as per Exs.D.1 to Ex.D.7.
On appreciation of evidence, the Trial Court answered
issues in the affirmative and consequently, decreed the
suit, as noted above.
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07. Being aggrieved, the defendants preferred the
appeal in R.A.No.6/2019. The First Appellate Court
considering the grounds urged framed the following points
for its consideration :-
1. Whether the Trial Court committed error in
decreeing the suit of the plaintiff without
considering the facts of the case and
evidence on record?
2. Whether the judgment and decree under
appeal is erroneous, illegal and against to
the facts the case, thereby warranting
interference by this Court?
3. Whether the judgment and decree of the
Trial Court under appeal is liable to be
declared null and void for want of pecuniary
jurisdiction?
4. What order?
08. On re-appreciation of evidence, answered
points No.1 to 3 in the negative and confirmed the
judgment and decreed passed by the Trial Court and
dismissed the appeal. Being aggrieved the same, the
present appeal.
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09. Along with the appeal, an application in
I.A.No.1/2025 is filed seeking condonation of delay of 950
days in filing the appeal. The affidavit accompanying the
said application reads as under:
AFFIDAVIT
"I, Sharanappa S/o Babu, Age: 26 years, Occ:
Agriculture, R/o Gowdanalli village, Tq: Chincholi,
Dist: Kalaburagi, today at Kalaburagi, do hereby
state on oath as under;
1. That, the deponent is the appellant No.2 in the
above case and hence knows facts of the case and
also swears for appellant No.2.
2. That, being aggrieved by the judgment and decree
dated: 18.06.2022, passed in R.A. No:6/2019 on the
file of Senior Civil Judge & JMFC at Chincholi, this
appeal is preferred by delay as the deponent and
other appellants have not obtained the copy of the
judgment and decree in time due to ill-health, the
appellants fell ill, and also due financial problems the
delay is caused obtained certified copy of the
judgment and decree of the trial court and first
appellate court.
3. That, if the application is allowed, the respondents
will not put to any injury or hardship and if
application is not allowed the deponent appellant put
to great hardship and irreparable loss and also put to
multiplicity of litigation, hence the same may be
allowed.
Hence, this affidavit".
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10. Except purported financial difficulty and ill-
health, nothing is pleaded. Further, no material is
produced as to the ill-health which the appellants were
purportedly suffering from. The reasons assigned in the
affidavit accompanying the application do not meet the
requirement of 'sufficient cause' contemplated under
Section 5 of the Limitation Act. As such, no grounds are
made out for condonation of inordinate delay of 950 days.
Apposite in this regard to refer the judgment of the Apex
Court in the case of Brijesh Kumar and Others vs.
State of Haryana and Others reported in (2014) 11
SCC 351 at Paragraph No.10 it has been held that-
"10. The courts should not adopt an injustice-
oriented approach in rejecting the application for
condonation of delay. However, the Court while
allowing such application has to draw a distinction
between delay and inordinate delay for want of bona
fides of an inaction or negligence would deprive a
party of the protection of Section 5 of the Limitation
Act, 1963. Sufficient cause is a condition precedent
for exercise of discretion by the Court for condoning
the delay. This Court has time and again held that
when mandatory provision is not complied with and
that delay is not properly, satisfactorily and
convincingly explained, the Court cannot condone
the delay on sympathetic grounds alone."
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11. Notwithstanding the same as noted above, the
Trial Court and the First Appellate Court have declined to
accept the contention of the defendants of plaintiff having
orally relinquished her share right, title and interest in the
suit schedule property. Relinquishment of any share, right,
title or interest in respect of an immovable property value
of which exceeds Rs.100/- shall be made in accordance
with provisions under Section 17 of the Registration Act.
That not having been done, even on the merits, no
grounds to interfere in the matter.
12. I.A.No.1/2025 filed seeking condonation of
delay of 950 days is rejected. Consequently, appeal is
dismissed.
13. It is submitted that Smt. Tootamma-defendant
No.1, the mother of the parties is no more. The parties are
at liberty to seek adjustment of equities in final decree
proceedings pending consideration.
Sd/-
(M.G.S.KAMAL)
JUDGE
KJJ,SDU
CT:PK
