Sri. G. M. Sidramappa, Vs Sri. G. M. Onkarappa

SRI. G.M.SIDRAMAPPA, S/O MALLAPALAIAH, AGED ABOUT 64 YEARS, R/O. K. GOLLARAHALLI VILLAGE, KUDLURU POST, AMRUTHAPURA HOBLI, TARIKERE TALUK, HASSAN DISTRICT-573201.

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…APPELLANT

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(BY SRI. PURUSHOTHAM G., ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI. G.M. ONKARAPPA, S/O. MALLAPALAIAH, AGED ABOUT 54 YEARS, R/O. MUDDANAHALLI VILLAGE, DISHANI POST, ARSIKERE TALUK, HASSAN DISTRICT-573201.

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SRI. G.M.JAYAPPA, S/O MALLAPALAIAH, AGED ABOUT 46 YEARS, R/O. K. GOLLARAHALLI VILLAGE, KUDLURU POST, AMRUTHAPURA HOBLI, TARIKERE TALUK-573201.

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2 - NC: 2025:KHC:53112 RSA No. 622 of 2023

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HC-KAR

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SMT. SHIVAMMA, W/O SIDDANAIKA, AGED ABOUT 59 YEARS, R/O. K. GOLLARAHALLI VILLAGE, KUDLURU POST, AMRUTHAPURA HOBLI, TARIKERE TALUK-573201.

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SMT. LAKSHMAMMA, W/O GADARI PALAIAH, AGED ABOUT 57 YEARS, R/O. K. GOLLARAHALLI VILLAGE, KUDLURU POST, AMRUTHAPURA HOBLI, TARIKERE TALUK-573201.

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…RESPONDENTS

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(BY SRI. SYED AKBAR PASHA, ADVOCATE FOR R1 TO R4)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 08.11.2022 PASSED IN R.A.NO.62/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.11.2020 PASSED IN O.S.NO.20/2009 ON THE FILE OF THE CIVIL JUDGE (JR. DN.) AND ADDITIONAL JMFC, TARIKERE.

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

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NC: 2025:KHC:53112 RSA No. 622 of 2023

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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 the learned counsel for the respondents.

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This second appeal is filed against the concurrent

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finding.

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The factual matrix of the case of the plaintiff before the Trial Court is that the suit schedule properties belongs to the plaintiffs and the defendants and hence, the plaintiffs are entitled for share in the suit schedule properties. The Trial Court granted the relief, since the defendants did not appear and contest the matter. However, the Trial Court considering the material on record, comes to the conclusion that the plaintiff is entitled for 1/5^th share in the suit schedule properties. The same is challenged before the First Appellate Court by filing an appeal and there was a delay of 10 years 20 days in filing the appeal. The First Appellate Court given an opportunity to lead evidence and considered the material on record that notice has been served against all the defendants and none of the defendants have appeared and contested the

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NC: 2025:KHC:53112 RSA No. 622 of 2023

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HC-KAR

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matter. The First Appellate Court also observed that the Trial Court even taken note of time was given for appearance and did not choose to appear and though the suit was filed for the relief of partition, ultimately passed the judgment on 06.11.2009. The First Appellate Court also taken note of the evidence of the appellant, wherein he categorically admitted about the filing of the suit and also extracted the answers elicited from the mouth of the appellant during the course of cross-examination. He claims that the plaintiff is having a right over the property, but he had cultivated the property. However, he categorically admits that he is enjoying the fruits of the cultivation and also getting income of more than Rs.1,00,000/- to Rs.1,50,000/-. These materials were taken note of by the First Appellate Court and considering the delay as well as admission on the part of appellant, dismissed the appeal.

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The main contention of the learned counsel for the appellant before this Court is that no opportunity was given before the Trial Court. The learned counsel would contend that the suit schedule properties is valued at Rs.23,00,000/- as per

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HC-KAR

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the valuation slip, which exceeds the pecuniary jurisdiction of the Trial Court as per Section 17 of the Karnataka Civil Court Act, 1964. Except this ground, no other grounds are urged before this Court. But only contend that the delay was not properly considered by the First Appellate Court inspite of the same is explained.

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Per contra, the learned counsel for the respondents would vehemently contend that notice was served to the defendants and they were not represented and there were four defendants in the original suit and none of them have contested the matter and apart from that, no sufficient reasons are given to condone the delay of 10 years. The learned counsel would contend that there were clear admission on the part of the appellant before the First Appellate Court. He categorically admits that the plaintiff is having a share over the property. However, his only contention is that he has cultivated the same. The answer elicited is very clear that he is enjoying the fruits of the property and hence, the First Appellate Court has not committed any error. The learned counsel would submit that the ground of pecuniary jurisdiction was not raised before

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NC: 2025:KHC:53112 RSA No. 622 of 2023

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HC-KAR

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the Trial Court as well before the First Appellate Court and for the first time, raised the ground of pecuniary jurisdiction. However, 1/5^th share amounts to only Rs.4,60,000/- and hence, cannot contend that no jurisdiction.

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Having heard the learned counsel for the appellant and the learned counsel for the respondents, there is no dispute with regard to the relationship between the parties is concerned. The plaintiff is the brother of defendant Nos.1 and 2 and defendant Nos.3 and 4 are the sisters of the plaintiff. The defendants have not contested the matter before the Trial Court inspite of service of notice. However, the appeal is filed after almost 10 years. The First Appellate Court taken note of delay of 10 years as well as considered the material on record, particularly the admission given by the appellant before the First Appellate Court while conducting an enquiry with regard to the limitation is concerned. Though the learned counsel for the appellant raised the issue with regard to the pecuniary jurisdiction is concerned, the learned counsel for the respondents would submit that the share of the plaintiff is less than Rs.5,00,000/-. It is also the submission of the learned

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NC: 2025:KHC:53112 RSA No. 622 of 2023

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HC-KAR

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counsel for the respondent that the issue with regard to pecuniary jurisdiction was not raised before the Trial Court and the First Appellate Court. When such being the case and when the relief of partition is granted in respect of the plaintiff, whose share is less than Rs.5,00,000/-, I do not find any ground to admit the second appeal and frame any substantial question of law.

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In view of the discussions made above, I pass the following:

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ORDER

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The second appeal is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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MD List No.: 1 Sl No.: 28

Sri. G. M. Sidramappa, v. Sri. G. M. Onkarappa

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Sri. G. M. Sidramappa, v. Sri. G. M. Onkarappa

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