Dismissed

Smt Nagaveni v. Late Gurumoorthy Chaithra

Karnataka HC2 Apr 2024RSA/814/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal filed by legal representatives of deceased Nageshwara Chathra. The appeal arose from a dismissal for limitation of a regular appeal against the Final Decree Proceedings regarding partition suit properties. The Court upheld the First Appellate Court's refusal to condone the delay, noting the appellants were aware of the proceedings. Thus

What did the court decide?

The regular second appeal filed by the appellants is dismissed.

Smt Nagaveni Vs Late Gurumoorthy Chaithra — Partition | Karnataka HC (2024)

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NC: 2024:KHC:13288 RSA No. 814 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 814 OF 2023 (PAR)

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BETWEEN:

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SMT. NAGAVENI W/O LATE NAGESHWARA CHATHRA AGED ABOUT 69 YEARS

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SRI. SHANKARNARAYANA CHATHRA S/O LATE NAGESHWARA CHATHRA AGED ABOUT 48 YEARS

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SRI. VIJAYENDRA CHATHRA S/O. LATE NAGESHWARA CHATHRA AGED ABOUT 45 YEARS

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SMT. SHAILAJA D/O. LATE NAGESHWARA CHATHRA AGED ABOUT 42 YEARS,

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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ALL ARE RESIDENTS OF KALEKODU, HALLIHOLE VILLAGE AND POST KUNDAPURA TALUK UDUPI 576 201.

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…APPELLANTS

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(BY SRI. AJITH A SHETTY., ADVOCATE)

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AND:

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LATE GURUMOORTHY CHAITHRA SINCE DECEASED BY HIS LR'S

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1(a) SMT. SHAILA W/O LATE GURUMOORTHY CHATHRA

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NC: 2024:KHC:13288 RSA No. 814 of 2023

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AGED ABOUT 53 YEARS

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1(b) SMT. SUSHMA D/O LATE GURUMOORTHY CHATHRA AGED ABOUT 31 YEARS

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1(c) SMT. GREESHMA D/O LATE GURUMOORTHY CHATHRA AGED ABOUT 27 YEARS

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SRI. CHANDRASHEKAR CHATHRA S/O LATE DEVARAYA CHATHRA AGED ABOUT 71 YEARS

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SRI. SUBRAMANYA CHATHRA S/O LATE DEVARAYA CHATHRA AGED ABOUT 56 YEARS

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SRI. SRIDHAR CHATHRA S/O LATE DEVARAYA CHATHRA AGED ABOUT 53 YEARS

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RESPONDENTS NO. 1 TO 4 ARE RESIDENTS OF KALEKODU HALLIHOLE VILLAGE AND POST KUNDAPURA TALUK UDUPI 576 201.

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SRI. ARUNA KUMAR S/O. CHANDRASHEKAR CHATHRA AGED ABOUT 39 YEARS KALEKODU, HALLIHOLE VILLAGE AND POST KUNDAPURA TALUK UDUPI 576 201.

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SMT. RAMADEVI W/O PARAMESHWARI KUJITHAYA AGED ABOUT 67 YEARS

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SMT. PUSHAVENI W/O SRINIVASA RAO

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3 - NC: 2024:KHC:13288 RSA No. 814 of 2023

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AGED ABOUT 51 YEARS RESPONDENTS 6 AND 7 ARE RESIDENTS OF SIDDAPURA VILLAGE AND POST KUNDAPUR TALUK UDUPI 576 201.

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SRI. LAXMINARAYANA CHATHRA S/O LATE DEVARAYA CHATHRA AGED ABOUT 75 YEARS RESIDING AT ABHINAV BRAMHAGIRI, BEHIND LIONS BHAVAN UDUPI TOWN 576 101.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.01.2022 PASSED IN RA NO.21/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA. DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 02.04.2019 PASSED IN FDP NO.14/1992 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KUNDAPURA.

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THIS APPEAL COMING ON FOR ORDERS THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is by the legal representatives of original defendant No.2 -Sri Nageshwara Chatra, aggrieved by the order dated 02.04.2019 passed in FDP No.14/1992 on the file of the Principal Civil Judge and JMFC., Kundapura, which order was carried in appeal by the appellants herein in R.A.No.21/2020 on the file of the Senior Civil Judge at Kundapura (First Appellate Court), which by its order dated

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NC: 2024:KHC:13288 RSA No. 814 of 2023

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02.01.2022 dismissed the same on the ground of same having been barred by limitation.

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Brief facts leading up to filing of the present appeal are that:

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A suit in O.S.No.225/1978 had been filed seeking partition and separate possession of schedule 'A' to 'E' properties consisting of various items of immovable properties.

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The said suit was decreed by judgment and decree dated 23.08.1982 directing the schedule properties to be divided into six equal shares and to be allotted to each of the plaintiffs and the defendants.

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Final decree proceedings in FDP No.14/1992 was initiated. Tahsildar was appointed as Court Commissioner under Order XX Rule 18 r/w Section 54 of CPC by the FDP Court, who has apparently filed the report dividing the schedule properties into 6 equal shares. The FDP Court taking note of the fact that except respondent No.6 no other respondents had filed any objection and further considering the rival claims made by the parties, exercising its discretionary jurisdiction, allotted the shares as detailed in the said proceedings and consequently,

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NC: 2024:KHC:13288 RSA No. 814 of 2023

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closed the Final decree proceedings. Aggrieved by the same, the appellants who are the wife and children of Sri Nageshwara Chatra filed a regular appeal in R.A.No.21/2020. There was a

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delay of 369 days in filing the said appeal, as such, an application was also filed seeking condonation of delay in filing the said appeal. The First Appellate Court did not find the reasons assigned in the affidavit accompanying the application seeking condonation of delay, as such, dismissed the application and consequently dismissed the appeal having barred by limitation. Being aggrieved by the same, the appellants are before this Court.

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Sri Ajith A.Shetty, the learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted that the trial Court and First Appellate Court have ignored the essential feature of the properties while allotting the shares which are per se inequitable. Elaborating the said submission the learned counsel submits that the trial Court has not taken into consideration the location, nature of the soil and the value of the properties and also did not consider that the said properties were spread across different places. That the appellants have been allotted their share in a

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place called Kollur, whereas other members of the family have been allotted properties in a place called Kundapura, which is more commercially viable place in terms of its location. That allotment of shares without consideration of these aspects of the matter has adversely affected the interest of the appellants. Thus, he submits that this inequitable distribution of shares needs to be redressed.

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He submits that since the First Appellate Court being final fact finding Court has dismissed the appeal on the technical grounds of the same having been barred by limitation. An opportunity be provided to the appellants to address their grievance. Thus, he submits that the dismissal of the appeal by the First Appellate Court without considering the contention urged by the appellants has given rise to substantial question of law requiring consideration in the hands of this Court.

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Heard. Perused the records.

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This litigation is pending since 1978. The Final

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decree proceedings itself was initiated in the year 1992 and has been closed in the year 2019. The Final Decree proceedings itself has taken 17 long years. Paragraph No.3 of the FDP

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NC: 2024:KHC:13288 RSA No. 814 of 2023

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proceedings reveal that none of the respondents including the appellant herein have chosen to file any statement of objections to the main petition. The FDP Court had appointed the Tahsildar as Court Commissioner under Section 54 of CPC, as stated at paragraph No.10 of the order, has filed two reports, one dated 11.01.2005 and another 31.01.2006. The Tahsildar has identified the suit properties, divided them into six equal shares, taking into consideration the fertility of the soil, irrigation facility, developments, convenience, locality, income etc., The said paragraph further reveal that except respondent No.6 none of the parties had raised any objection to the Commissioner's report. Even the said objection raised by respondent No.6 has found to be one without any substance by

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the trial Court. As such, the FDP Court accepted the Commissioner report. At paragraph No. 11 of the said order, the FDP Court had noted that the parties had filed separate memos in which they had made claims and counter claims, which were mutually inconsistent and were over lapped.

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Taking this into consideration, the trial Court opted

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to divide the suit properties using its discretionary jurisdiction. Accordingly, proceeded to allot the shares as detailed at

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paragraph No.11 of the said order. The FDP Court taking into consideration the two reports filed by the Tahsildar, closed the Final decree proceedings. Apparently, aggrieved by the closure of the said FDP proceedings, the appellants herein filed a Regular Appeal before the First Appellate Court. There was a delay of 369 days in filing the said appeal.

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Learned counsel for the appellant referred to the application filed under Order XLI R 3(A) by the appellants before the First Appellate Court, which is numbered I.A.No.2 seeking condonation of delay. The affidavit is sworn to by one Vijayendra Chatra, who is the 3^rd appellant before this Court. Paragraph No. 2 of the said affidavit states that he has been diligently continuing the litigation which has been pending for over 45 years. He says that due to the long duration of the litigation, it is difficult for him to keep the track of the said process throughout his life that, he is residing at far away place in a rural area without any proper road or access or communication and it was impossible for him to keep track of the litigation in Kundapura town.

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NC: 2024:KHC:13288 RSA No. 814 of 2023

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He further states that during the fag end of February 2020, his Advocate had intimated him about passing of the final decree and also told him that his office had sent him a letter however, he did not receive any such letter as the postal system was not working satisfactorily in the said rural area. He further states that his Advocate had obtained copies of the said proceedings immediately and explained the contents to him that he was shocked with the order and that the said order was passed upon the report prepared at the instance of the respondents who were behind the said report. As such, he requested his advocate to file an appeal against the final decree order. Due to which, there was a delay.

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Except the above, there are no other reasons assigned in the affidavit. The First Appellate Court not being satisfied with the cause shown in the application declined to condone the delay. The First Appellate Court has referred to several judgments of the Apex Court with regard to sufficiency of the cause for the purpose of condoning the delay. The First Appellate Court has found that the appellants were having the knowledge of pendency of the FDP proceedings and had thus,

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kept quite without taking any effective steps in challenging the same. As no reasons were explained for non-initiation of any action by the appellant within the time stipulated for the purpose of filing an appeal or any explanation with regard to further delay in filing the appeal, dismissed the application, consequently, dismissed the appeal.

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It is settled position of law that while considering the application for condonation of delay, a liberal approach has to be adopted. However, the concept of liberal approach cannot be extended in respect of a litigant who despite having knowledge of the order passed against him has kept quite without taking any steps whatsoever. In the instant case, it is not that the appellants were not aware of the pendency of the proceedings, particularly, the appeal proceedings. As already noted at paragraph No. 2 of the affidavit, the appellant himself has described that the proceedings having been pending for over 45 years. The reason assigned is that the long pendency of the proceedings has made it difficult for him to keep track of the proceedings. It is not his case that he was not aware of the passing of the final decree proceedings. No whisper of any nature whatsoever is made in the affidavit accompanying the

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NC: 2024:KHC:13288 RSA No. 814 of 2023

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application with regard to he not being able to take steps in filing the appeal within the time stipulated of filing of the appeal or even thereafter. As such, no error or fault can be found in the reasons assigned by the first appellate Court while declining to condone the delay. In the overall facts situation of the matter, even considering the contents of the order of the FDP wherein it is noted that except respondent No.6 none had filed any statement of objections, there appears to be no error or illegality committed by the FDP Court in closing the Final Decree Proceedings. Similarly no error can be found in the First Appellate Court rejecting the application for condonation of delay and dismissing the appeal. No substantial question of law would arise for consideration.

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Accordingly, the appeal is dismissed .

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Sd/JUDGE

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PSJ

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List No.: 1 Sl No.: 8

Smt Nagaveni v. Late Gurumoorthy Chaithra

Case brief

What is this about?

What did the court decide?

Smt Nagaveni v. Late Gurumoorthy Chaithra

Case brief

What is this about?

What did the court decide?

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