Dismissed

Gadigeppa S/O Yallappa Mallur @ Kanakawad v. Giriyappa S/O Yallappa Mallur @ Kanakawad

Karnataka HC22 Nov 2023RSA/100293/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka Regular Bench dismissed a regular second appeal filed by defendants challenging a partition decree. The appeal was barred by inordinate delay; the Court found appellants failed to prove sufficient cause under Section 5 of the Limitation Act despite cited medical evidence.

What did the court decide?

Regular second appeal dismissed; judgment and decree of courts below stands confirmed.

Gadigeppa S/O Yallappa Mallur @ Kanakawad Vs Giriyappa S/O… — Partition | Karnataka HC (2023)

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NC: 2023:KHC-D:13648 RSA No. 100293 of 2016

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

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REGULAR SECOND APPEAL NO.100293 OF 2016 (PAR)

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BETWEEN:

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GADIGEPPA

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S/O. YALLAPPA MALLUR @ KANAKAWAD @ KURBAR, SINCE DECEASED BY HIS LRS

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1A) VISHWANATH

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S/O. GADIGEPPA MALLUR @ KANAKAWAD @ KURBAR, AGE: 32 YEARS, OCC: AGRICULTURIST, R/O: RAMGIRI, TQ:SHIRHATTI.

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1B) SHIVANAND

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S/O. GADIGEPPA MALLUR @ KANAKAWAD @ KURBAR, AGE: 30 YEARS, OCC: AGRICULTURIST, R/O: RAMGIRI, TQ:SHIRHATTI.

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1C) GANESH

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Digitally signed by VISHAL VISHAL NINGAPPA NINGAPPA PATTIHAL PATTIHAL Date: 2023.12.01 11:04:03 +0530

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S/O. GADIGEPPA MALLUR @ KANAKAWAD @ KURBAR, AGE: 28 YEARS, OCC: AGRICULTURIST, R/O: RAMGIRI, TQ:SHIRHATTI.

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1D) CHIDANAND

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S/O. GADIGEPPA MALLUR @ KANAKAWAD @ KURBAR, AGE: 26 YEARS, OCC: AGRICULTURIST, R/O: RAMGIRI, TQ:SHIRHATTI.

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1E) CHANNAVVA GADIGEPPA MALLUR @ KANAKAWAD @ KURBAR, AGE: 49 YEARS, OCC: AGRICULTURIST, R/O: RAMGIRI, TQ:SHIRHATTI.

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…APPELLANTS

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(BY SRI MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)

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AND:

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GIRIYAPPA S/O. YALLAPPA MALLUR @ KANAKAWAD @ KURBAR, AGE: 49 YEARS, OCC: AGRICULTURIST, R/O: RAMGIRI, TQ:SHIRHATTI.

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GADIGEWWA W/O. TIPPANNA BETGERI, AGE: 54 YEARS, OCC: AGRICULTURIST AND HOUSEHOLD WORK, R/O:RAMGIRI, TQ:SHIRHATTI.

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GANGAWWA W/O. HANAMAPPA RITTIKURABAR, AGE: 44 YEARS, OCC: AGRICULTURIST AND HOUSEHOLD WORK, R/O:RAMGIRI, TQ:SHIRHATTI.

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CHANNABASAVVA W/O. YALLAPPA MALLUR @ KANAKAWAD @ KURBAR SINCE DECEASED BY HER LRS., WHO ARE ALREADY ON RECORD I.E., APPELLANTS AND RESPONDENTS.

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…RESPONDENTS

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(BY SRI V.R. PATIL AND ASHOK T. KATTIMANI, ADV. FOR R1; NOTICE TO RESPONDENT No.2 AND R3 SERVED; R4-DECEASED AND APPELLANTS ARE LR’S OF R4)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 10.03.2016 PASSED IN R.A.NO.7/2014 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, GADAG, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.07.2007 PASSED IN O.S.NO.36/2002 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR. DN.) GADAG, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present second appeal by the defendants assailing the judgment and decree of the Courts below, whereby, the suit of the plaintiff for partition and separate possession was decreed and the appeal preferred by the defendants was dismissed on the ground of delay.

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The parties herein are referred to as per the ranking before the Trial Court, for the sake of convenience.

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Brief facts of the case are that the plaintiff instituted a suit for partition and separate possession seeking 1/5^th share in the suit schedule properties.

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The family pedigree of the parties is described as below:

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Yaallappa (Propositus)

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Channabasavva (wife) (Deft.4)

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Gadigewwa Gadigeppa Gangawwa Giriyappa (Deft.2) (Deft.1) (Deft.3) (Pltff.) Channawwa (wife) (Deft.7) Vishwanath Shivanand (Deft.5) (Deft.6)

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The suit was contested by defendant Nos.1, 5, 6

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and 7 by filing their written statement. Defendant Nos.2 and 3 chose to remain absent.

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In order to substantiate their claim, the plaintiff examined as PW.1 and two witnesses as PWs.2 and 3 and got marked documents at Exs.P.1 to P.25. On the other hand, the defendants filed their written statement, but did not choose to lead their evidence though sufficient opportunity was given to them.

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The Trial Court on the basis of the pleadings,

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framed he following issues:

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1. Whether the genealogy is correct?

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1. Whether plaintiff proves that suit ‘C’ property is the self acquired property of the propositus Yallappa?

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1. Whether plaintiff proves that he and defendants are the members of the joint Hindu Family?

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1. Whether plaintiff proves that item No.1 to 4 of suit schedule ‘B’ are the self-acquired properties of the propositus Yallappa?

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1. Whether plaintiff proves that Item No.5 in schedule ‘B’ and schedule ‘D’ properties are the joint family properties?

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NC: 2023:KHC-D:13648 RSA No. 100293 of 2016

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1. Whether plaintiff proves that he has 1/5^th share in the amount of Rs.15,500/- deposited in the Government Treasury?

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1. Whether defendant No.1, 5, 6, and 7 proves that they have perfected title over Item No.1 of schedule ‘C’ property by way of adverse possession?

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1. Whether defendant Nos.1, 5, 6 and 7 are prove that Item No.5 in schedule ‘B’ and all the schedule ‘D’ properties are the self-acquired properties of defendant No.1?

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1. Whether suit is not maintainable without seeking declaration?

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1. Whether suit is not properly valued and court fee paid is not correct?

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1. Whether these defendants prove that plaintiff is estopped from seeking relief by conduct and by acquiescence?

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1. Whether these defendants prove that deceased Yallappa has executed a will dtd.5.4.1983 in respect of suit schedule ‘C’ properties in favour of defendant No.1?

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1. Whether these defendants prove that suit schedule B, C and D properties are not liable for partition?

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1. Whether suit is barred by time?

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1. Whether suit is barred by principles of resjudicata?

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1. Whether alternatively defendants are entitled for a decree for declaration in respect of suit schedule ‘C’ property, by way of counter claim?

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1. Whether these defendants are entitled for compensatory costs?

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1. Whether plaintiff is entitled to relief of partition and separate possession of his share? If so, what is his share?

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1. What order or relief?

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The Trial Court on the basis of the pleadings, oral an documentary evidence arrived at a conclusion that the suit properties are joint family properties of the plaintiff and defendants and by the judgment and decree, the Trial Court decreed the suit of the plaintiff holding that the plaintiff is entitled for 1/5^th share in all the suit schedule properties by partition and separate possession.

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The appeal was preferred by the defendants. Along with the appeal, I.A.No.I under Section 5 of the Limitation Act seeking to condone the delay of 6 years, 6 months and 9 days in preferring the appeal was filed. The affidavit was sworn to by appellant No.2 stating that his father Gadigeppa was suffering from diabetes and his right

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ankle was cut down and he was completely on bed rest as on 21.11.2011 and the appellants were also minor and except their mother, nobody was there to look after them. Objections were filed to I.A.No.I by the respondents.

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In order to substantiate their claim on the IA No.I to condone the delay, appellant No.1(c)-Ganesh was examined as PW.1 and got marked documents at Exs.P.1 to P.7. The First Appellate Court framed the following points for consideration:

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Whether the appellants have made out the acceptable grounds for condoning the delay of 6 years, 6 months, 9 days as prayed in the IA?

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What order?

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The First Appellate Court placing reliance on the pleadings, oral and documentary evidence, held that the appellant has not made out a case to condone the delay of 6 years, 6 months and 9 days in preferring the appeal.

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Aggrieved by the dismissal of the appeal on the ground of delay, the present second appeal by the appellants in R.A.No.7/2014.

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Heard Sri Mallikarjunswamy B.Hiremath, learned counsel appearing for the appellants and perused the judgment and decree of the Courts below.

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The First Appellate Court while dismissing the application seeking to condone the delay in filing the regular appeal has held that the appellant has not shown sufficient cause to condone the inordinate delay. The appellate Court held that the documents produced by the applicant does not evidence about the credibility of the reasons stated in the affidavit accompanying the application. The appellate Court held that the suit was disposed off on 3^rd July 2007 and the material produced by the appellant is the discharge card of the deceased Gadigeppa, who was admitted in the hospital on 04.12.2006 and discharged on 23.01.2007, apart from the said document no relevant piece of evidence is produced by the appellant to show that the deceased Gadigeppa was on bed rest and unable to proceed against the dismissal of the suit. The appellate court held that considerable delay in preferring the appeal on the part of the appellants and the

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appellants have not shown sufficient cause to condone the delay.

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The law is well settled that usually in normal circumstances, where there is sufficient cause is shown and application for condonation of delay has been moved bonafidely, the Court to accept the reasons and delay should be condoned and case of the appellants should be heard on merits. However, when there is no sufficient cause and the appellant lacks bonafides accompanied by negligence usually the Courts would tilt against the appellant and refuse to condone the inordinate delay.

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None of the explanations offered by the appellants to condone the delay was to the satisfaction of the appellate Court is the reason for the First Appellate Court to dismiss the appeal. Gadigeppa died in the year 2011, suit was dismissed in the year 2007. The reason stated in affidavit is that Gadigeppa was on bed rest up to 2011, no materials are forthcoming to establish the said aspect. Exs.P.5 and P.6 are the documents relied by the appellant to contend that the deceased Gadigeppa was under treatment.

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The appellate Court held that those documents do not establish or substantiate “sufficient cause” since the material placed are treatment records of Gadigeppa indicating the treatment before passing the judgment in the present suit. No explanation is offered by the applicant to condone the delay in filing the regular appeal from the date of decreetal of the suit till the filing of the appeal. It is also settled preposition of law that the existence of “sufficient cause” to the satisfaction of the Court is the condition set out for the Court to exercise its discretion in the matter of condoning the delay.

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Under such circumstances, the First Appellate Court held that the applicant has not made out any bonafide or sufficient cause to condone an inordinate delay of 6 years, 6 months and 9 days in preferring the appeal. No grounds have been made out by the appellants to interfere with the judgment and decree of the First Appellate Court. Under such circumstances, no substantial question of law arises for consideration and accordingly this Court pass the following :

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ORDER

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i) Regular Second Appeal is hereby dismissed.

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ii) Judgment and decree of the Courts below stands confirmed.

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Sd/JUDGE

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EM, CT: UMD List No.: 1 Sl No.: 50

Gadigeppa S/O Yallappa Mallur @ Kanakawad v. Giriyappa S/O Yallappa Mallur @ Kanakawad

Case brief

What is this about?

What did the court decide?

Gadigeppa S/O Yallappa Mallur @ Kanakawad v. Giriyappa S/O Yallappa Mallur @ Kanakawad

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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