Dismissed¶55

Smt. N. Hemavathi v. Nanjundappa

Karnataka HC2 Jul 2025RSA/1695/2022

Case brief

AI extract

What is this about?

RSA No.1695/2022, Karnataka High Court, decided 02.07.2025 by H.P. Sandesh J: second appeal dismissed; first appeal against 2014 partition decree (O.S.No.13/2009, Chitradurga) filed on 13.09.2021 with 7 years 2 months delay; condonation rejected after PW.1's admission of deliberate non-filing during father's lifetime; no substantial question of law under S.100 CPC; trial court finding that no succession opens during father's lifetime not disturbed.

What did the court decide?

There is no error on the part of the first Appellate Court in dismissing the appeal on the ground of delay, since the delay of 7 years 2 months was not explained despite the appellant being given an opportunity to lead evidence. ¶49

Smt. N. Hemavathi Vs Nanjundappa — Karnataka HC (2025) — LawSathi Research

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NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JULY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1695 OF 2022 (PAR)

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BETWEEN:

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SMT. N. HEMAVATHI

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D/O NANJUNDAPPA W/O R NAGARAJA, AGED ABOUT 38 YEARS, AGRICULTURIST R/O MADAKARIPURA VILLAGE, KASABA HOBLIL, CHITRADURGA TQ - 577 001

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Digitally signed by DEVIKA M Location: HIGH (BY SRI. SPOORTHY HEGDE N., ADVOCATE) COURT OF KARNATAKA

…APPELLANT

AND:

1. NANJUNDAPPA

S/O NINGAPPA

AGED ABOUT 68 YEARS

2 - NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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YOGESH

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S/O NANJUNDAPPA AGED ABOUT 30 YEARS

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BOTH RESPONDENTS AGRICULTURIST R/O MADAKARIPURA VILLAGE, CHITRADURGA TQ - 577 001

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…RESPONDENTS

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(BY SRI. K.N. MAHABALESHWARA, ADV. FOR R1 AND R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.09.2022 PASSED IN RA.NO.42/2021 ON THE FILE OF THE IST ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA. DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 30.06.2014 PASSED IN O.S.NO.13/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHITRADURGA AND ETC.

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

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3 - NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and also the learned counsel appearing for the respondents.

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This appeal is filed against the dismissal of suit in O.S.No.13/2009, wherein a prayer is sought for the relief of partition and separate possession. Defendant No.1 appeared and filed a written statement that item Nos.2, 4 and 5 properties are his self acquired properties. The Trial Court framed the issues in view of the pleadings of the plaintiff and the defendants and first issue is with regard to weather the plaintiff proves that, suit schedule properties are the joint family properties? and the same is answered in the negative in coming to the conclusion that the same is not the joint family properties as contended by the plaintiff and also it is the contention of defendant No.1 that suit schedule properties item Nos.2, 4 and 5 are his self acquired properties and same is also answered in the negative and the Trial Court comes to the

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4 - NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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conclusion that plaintiff is not entitled for the relief of partition at this juncture and dismissed the suit. The dismissal of the suit is vide judgment dated 30^th day of June 2014. This judgment was challenged in the year 2021. Filing the same on 13.09.2021 and registered on the very same day and there was a delay of 7 years 2 months in filing this appeal. In the condonation application, it is not particularly mentioned that on which date the appellant came to know that the daughters have share in the property of their father during lifetime of her father and in the cross-examination in connection with delay condonation application she admitted that she did not file the appeal when the judgment and decree was passed in O.S.No.13/2009 by knowing that she could not get share when father was alive and hence not filed the appeal in time.

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The Appellate Court also given an opportunity to explain the delay and the plaintiff got examined herself as PW.1 and during the course of cross-examination admitted that judgment and decree was passed on 30.06.2014 and Appellate

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Court also having considered the reasons assigned in the application as well as during the course of evidence and also

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5 - NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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answer elucidate from the mouth of PW.1 comes to the conclusion that in the application not mentioned on which date the appellant came to know that the daughters have share in the property that too during lifetime of her father and appeal also filed on 13.09.2021 and in the cross-examination also admitted in respect of I.A.No.1 is concerned delay condonation that she did not file the appeal when the judgment and decree was passed in O.S.No.13/2009 by knowing that she could not get share during lifetime of her father and when such answer was given and the same is extracted in the order of the Appellate Court while rejecting the application and also taken note of in paragraph No.18 that there was a abnormal delay of

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7 years 2 months and 13 days and the same has not been explained particularly while seeking for the condonation of delay and also an observation is made that not found any bona fide reasons to condone the unexplained and unreasonable abnormal delay and hence, dismissed the application. Being aggrieved by the said order, the present second appeal is filed before this Court.

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6 - NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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The learned counsel for the appellant vehemently contend that the Trial Court have committed an error in dismissing the suit that plaintiff is not entitled for share in the suit property and has no devolution of interest until the succession opens and very approach is erroneous and the learned counsel also would vehemently contend that the Appellate Court did not consider the matter in detail with regard to the reasoning of the Trial Court and dismissed the same on the ground of delay. The learned counsel also vehemently contend that during the course of argument that the Trial Court given the reasons that during the lifetime of father they cannot seek any relief for partition and hence, delay was caused in filing the appeal.

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Per contra, the learned counsel appearing for the respondents would contend that when the delay of 7 years 2 months has not been explained, the Appellate Court rightly considered the same and there is no any specific averment with regard to the date of knowledge as well as delay for filing the appeal for a period of 7 years 2 months.

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NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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Having heard the learned counsel for the appellant and also the learned counsel appearing for the respondents and having perused the material available on record. The suit is filed for the relief of partition and separate possession and issue No.1 is framed with regard to whether the properties are ancestral properties and the same was negatived that the same is not an ancestral properties and also comes to the conclusion that during the lifetime of the father there cannot be any succession in respect of the plaintiff and on the question of law only suit was dismissed and also the appellant did not choose to challenge this order for a period of 7 years 2 months. The appeal is filed with the delay of 7 years 2 months and not properly explained the same is observed by the Appellate Court and also even given an opportunity to explain the delay by allowing to lead evidence and taken note of admission and when such being the case, I do not find any error on the part of the Appellate Court in dismissing the appeal on the ground of delay. The delay of 7 years 2 months is not a reasonable delay and ought to have been explained and having the knowledge of the judgment of Trial Court also the appellant did not choose to file an appeal and belatedly filed the appeal after 7 years 2

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NC: 2025:KHC:23700 RSA No. 1695 of 2022

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HC-KAR

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months and hence, I do not find any ground to admit and frame any substantial question of law and no substantial question of law arise for consideration and hence, no ground to admit and frame substantial question of law. In view of the discussions made above, I pass the following:

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ORDER

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The Regular Second Appeal is dismissed.

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Sd/- (H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 50

Smt. N. Hemavathi v. Nanjundappa

Case brief

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Smt. N. Hemavathi v. Nanjundappa

Case brief

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