Dismissed

Krishnappa v. Venkataswamy

Karnataka HC4 Nov 2024RSA/2047/2016

Case brief

AI extract

What is this about?

Second appeal against refusal to condone a 2946-day delay in filing an appeal from dismissal of a declaration and possession suit. The High Court found the appellants' claim of ignorance of the decree untenable given continued visits to Shivamogga and co-plaintiff father's presence, upheld the first appellate Court's order, and dismissed the appeal.

What the court decided

AI extract

Krishnappa Vs Venkataswamy — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:44238 RSA No. 2047 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.2047 OF 2016 (PAR)

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BETWEEN:

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KRISHNAPPA, S/O SUBBANNA, AGED ABOUT 49 YEARS,

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SUBBANNA DEAD BY LR'S

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PARVATHAMMA, W/O LATE SUBBANNA, AGED ABOUT 87 YEARS,

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BOTH ARE RESIDENTS OF KYATHAPPA BEEDHI, HARIGE, SHIAMOGGA CITY – 577 201.

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…APPELLANTS

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(BY SRI. P.N. HARISH, ADVOCATE)

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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AND:

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VENKATASWAMY

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SINCE DEAD BY HIS LR'S

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RENUKAMMA, W/O LATE VENKATASWAMY, AGED ABOUT 62 YEARS, R/O KYATHAPPANNA BEEDHI, 4^TH CROSS, VIDYANAGARA POST, HARIGE EXTENSION, SHIVAMOGGA CITY – 577 201.

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NC: 2024:KHC:44238 RSA No. 2047 of 2016

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LEELAVATHI, W/O TIRUVALLI HANUMANTHAPPA, D/O LATE VENKATASWAMY, AGED ABOUT 32 YEARS, R/O NIDIGE VILLAGE, 4^TH CROSS, RIGHT SIDE, SHIVAMOGGA TALUK – 577 201.

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3. LAKSHMI,

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W/O KRISHNAPPA, D/O LATE VENKATASWAMY, AGED ABOUT 29 YEARS, R/O VADDINAKOPPA, NEAR CAMP, NEAR AMBEDKAR COLLEGE, VIDYANAGARA POST, SHIVAMOGGA TALUK – 577 201.

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GOVINDA, S/O LATE VENKATASWAMY, AGED ABOUT 27 YEARS, R/O KYATHAPPANA BEEDHI, 4^TH CROSS, VIDYANAGARA POST, HARIGE EXTENSION, SHIVAMOGGA CITY – 577 201.

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MALA, D/O LATE VENKATASWAMY, AGED ABOUT 29 YEARS, R/O KYATHAPPANA BEEDHI, 4^TH CROSS, VIDYANAGARA POST, HARIGE EXTENSION, SHIAMOGGA CITY – 577 201.

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…RESPONDENTS

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(BY SRI.GURURAJ R., ADVOCATE FOR R1 TO R5)

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3 - NC: 2024:KHC:44238 RSA No. 2047 of 2016

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST ORDER DATED 24.08.2016 PASSED ON IA NO.1 IN RA NO.45/2014 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, SHIVAMOGGA, DISMISSING IA NO.1 FILED UNDER ORDER 41 RULE 3-A OF CPC., R/W SEC.5 OF LIMITATION ACT. CONSEQUENTLY DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 30.6.2006 PASSED IN OS NO.272/1999 ON FILE OF THE I ADDL. CIVIL JUDGE (SR.DN) AND CJM, SHIVAMOGGA.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED REIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 24.08.2016 passed by learned III Additional District Judge, Shivamogga in R.A.no.45/2014 and judgment and decree dated 30.06.2006 passed by learned I Additional Senior Civil Judge and CJM, Shivamogga in O.S.no.272/1999, this appeal is filed.

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Case of plaintiffs in brief is as follows:

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Appellants herein were plaintiffs in O.S.no.272/1999 which was filed for relief of declaration that plaintiffs were

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4 - NC: 2024:KHC:44238 RSA No. 2047 of 2016

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absolute owners of 'A' Schedule Property and for vacant possession of 'B' Schedule Property by evicting defendant there from. It was stated that plaintiffs were owners in possession of property bearing khatha no.196/156, measuring 20X80 feet, wherein plaintiffs had constructed a Mangalore tiled house comprising two portions in an extent of 20X30 feet. It was stated, when defendant-younger brother of plaintiff No.2 was evicted from his rented house, plaintiffs had permitted him to reside in western portion of 'A' Schedule Property on his promise that he would vacate within a short period of time. Thereafter, though plaintiffs had requested defendant to vacate and deliver vacant possession to plaintiffs, same was not complied, leading to filing of suit.

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It was further stated that upon service of suit summons, defendant entered appearance and filed written statement denying plaint averments. It was stated that one Venkatappa had four sons viz., Papanna, Ganganna, Siddanna and Venkataswamy and said Venkatappa had a property at Harige, measuring 40X80 feet. Same was partitioned with each son getting 10X80 feet, who were in possession of their respective extent. Plaintiff no.2 had thereafter, forcibly

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NC: 2024:KHC:44238 RSA No. 2047 of 2016

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occupied portion of house property of Papanna, measuring 10X80 feet and after intestate death of Papanna without any issues, plaintiffs claimed share in proportion of Papanna, with intention to deprive defendant's share and filed suit.

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Based on pleadings, trial Court framed following

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issues:

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Whether the description the suit property mentioned in the plaint is correct?

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Whether the valuation of the suit is correct and the court fee paid therein is proper?

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Whether the plaintiff proves the title over plaint 'B' schedule property as pleaded in plaint?

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Whether the plaintiff is entitled for possession of the plaint 'B' schedule property as pleaded?

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What order or decree?

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In support of their case, plaintiffs were examined as

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PWs.1 and 2 and Exs.P1 to P16 were marked. Defendant did not lead oral or documentary evidence.

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On consideration, trial Court answered issues no.1, 3 and 4 in negative and issue no.2 in affirmative and issue no.5 by dismissing suit.

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NC: 2024:KHC:44238 RSA No. 2047 of 2016

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Aggrieved thereby, plaintiffs filed R.A.no.45/2014.

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As it was beyond period of limitation, I.A.no.1 was filed under Order 41 Rule 3-A of CPC read with Section 5 of Limitation Act. In affidavit filed in support of application, it was stated that delay of 2946 days in filing appeal was on account of appellant no.1 having moved to Chikkamagaluru to work in tea estate and that he was not aware of result of suit until he returned, immediately, after coming to know about it, sometime was spent in making arrangements and appeal was filed.

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It was submitted, appellant no.1 had also examined himself along with two labourers from Dewan Estate, Yalagodu, Chikkamagaluru, to establish that plaintiff was working in tea estate. However, Court without proper consideration, merely by referring to law regarding sufficient cause, first appellate Court rejected application and consequently, dismissed appeal.

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It was submitted that ratio in decision relied upon by first appellate Court would indicate that it was not period of delay, but whether cause assigned was sufficient and beyond control of applicant. Therefore, sought for allowing appeal by answering proposed substantial question no.5 in favour of

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NC: 2024:KHC:44238 RSA No. 2047 of 2016

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appellants and to remand matter to trial Court for fresh consideration.

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On other hand, Sri Gururaj R., learned counsel for respondent sought to justify impugned order and submitted that there was enormous delay of 2946 days in filing appeal. No proper reasons were assigned as explanation. It was submitted, plaintiffs were aware of suit but failed to verify stage and result. Though, plaintiffs had examined witnesses to indicate that they were working, same by itself would not establish that plaintiffs were unaware of judgment passed by trial Court. First Appellate Court, on proper application of mind, had rejected I.A.no.1 for condonation of delay and consequently, no substantial question of law arose for consideration and sought dismissal of appeal.

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Heard learned counsel and perused impugned judgment and decree and records.

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From above, it is seen plaintiffs' suit for declaration

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and possession was rejected on contest by judgment and decree dated 30.06.2006. Suit was filed by appellant no.1 herein along with his father Subbanna. Appeal filed their

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8 - NC: 2024:KHC:44238 RSA No. 2047 of 2016

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against suffered from delay and dismissed by refusing condonation.

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Question that requires examination is whether there was sufficient cause and despite same, first appellate Court refused to condone delay. On perusal of copy of depositions of appellants in support of I.A.no.1, copies of which were made available for perusal of this Court, it is seen that appellant no.1 has stated that suit was filed by joining his father. On account of poverty, he left along with his mother, two children and wife to work in Dewan Estate, Yalagodu, Chikkamagaluru, as labourers from August 2006 and returned to Shivamogga only in month of March, 2014. Immediately after arrival to Shivamogga, he realized result of suit, made arrangement and preferred appeal.

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However, it is seen that while appellant no.1 had moved to work in Chikkamagaluru, his father had stayed back and died about 4 years prior to appeal. During crossexamination of appellant no.1, it is elicited that appellant no.1 had not met counsel who was conducting suit.

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NC: 2024:KHC:44238 RSA No. 2047 of 2016

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PW-2 - Chandrappa, stated that appellant no.1 was

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working in tea estate. But, PW-3 admitted that while working in tea estate, appellant no.1 and his wife used to visit Shivamogga once every one or two months. He denies suggestion about knowledge of suit.

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Hon'ble Supreme Court in Collector (LA) v. Katiji , reported in (1987) 2 SCC 107; Mool Chandra v. Union of India , reported in 2024 SCC OnLine SC 1878; Municipal Corporation Ahmedabad v. Voltas Ltd. , reported in AIR 1995 Gujarat 29 ; K.A. Manoharan v. P.K. Poulose , reported in 2002 (3) TAC 135 and in Mahindra Lands and Buildings Corporation v. Bhuthnath Banerjee , reported in AIR 1964 SC 1336 , have held it is not quantum of delay that requires to be taken into account, but whether applicant had sufficient cause for not filing appeal within time and whether it was beyond his control. It is also observed normally Courts should take liberal view. At same time, there is caution to verify whether applicant had employed care and attention to avoid delay.

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10 - NC: 2024:KHC:44238 RSA No. 2047 of 2016

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In instant case, appellant no.1 was party to suit,

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suit was filed along with his father. Though, appellant no.1 claims to have left Shimogga just after disposal of suit on 30.06.2006, but, father of appellant no.1 had remained at Shimogga. It is highly unlikely that appellant no.1 would not be aware of result of suit as it is admitted by PW.3 that appellant and his wife were visiting Shimogga every one or two months. It is also noted that appellant no.2 in any case was aware of result and died about four years prior to filing of appeal i.e. four years after disposal of suit. In explanation offered, there is no explanation why appeal could not be filed by appellant no.2 in time. It is seen that appellant having engaged counsel and contested suit cannot be permitted to claim lack of knowledge of result merely on account of fact that one of plaintiff had moved away to another town for work that too after disposal of suit. Especially so, when there was continued visitation to hometown. It is also seen that first appellate Court has taken note of deposition of PW.1 and other witnesses while passing order impugned. Delay cannot be condoned on mere asking when there is no effort by applicant to mitigate same nor when circumstances indicate case of deemed knowledge. Thus, there

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