The High Court
Case Details
- 1 - NC: 2025:KHC:10091 RSA No. 259 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 259 OF 2020 (PAR) BETWEEN: SMT. PUTTARAJAMMA @ PUTTATHAYAMMA W/O RAJASHEKARAIAH, D/O SOMASHEKARAIAH, AGED ABOUT 31 YEARS, R/O AJJAGONAHALLI VILLAGE, BELLAVI HOBLI - 572 153. TUMAKURU TALUK AND DISTRICT. REPRESENTED BY GPA HOLDER SRI.RAJANNA AT RAJASHEKARAIAH, AGED ABOUT 41 YEARS, R/O AJJAGONAHALLI VILLAGE, BELLAVI HOBLI - 572 153. TUMAKURU TALUK AND DISTRICT. (BY SRI. V.B.SIDDARAMAIAH, ADVOCATE) …APPELLANT Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA AND: 1. SRI. SOMASHEKARAIAH S/O LATE SHIVALINGAIAH, AGED ABOUT 64 YEARS, 2. SRI. REVANNA S/O LATE SHIVALINGAIAH, AGED ABOUT 59 YEARS, 3. SRI. MAHADEVANNA S/O REVANNA AGED ABOUT 30 YEARS 4. SRI. HARISH S/O REVANNA AGED ABOUT 29 YEARS RESPONDENTS NO.1 TO 4 ARE - 2 - NC: 2025:KHC:10091 RSA No. 259 of 2020 R/O AJJAGONAHALLI VILLAGE, BELLAVI HOBLI - 572 153. TUMAKURU TALUK AND DISTRICT.
Legal Reasoning
5. SMT. SIDDAGANGAMMA W/O SHIVALINGAIAH, D/O SIDDALINGAPPA, AGED ABOUT 43 YEARS, R/O AGALAGUNTE PALYA, BELLAVI HOBLI - 572 153. TUMAKURU TALUK AND DISTRICT. 6. SRI. SHIVANNA S/O LATE SIDDALINGAPPA, AGED ABOUT 41 YEARS, R/O KATTIGEHALLI VILLAGE, KORA HOBLI - 572 128. TUMAKURU TALUK AND DISTRICT. 7. SMT. SIDDALINGAMMA W/O LINGAPPA, AGED ABOUT 46 YEARS, R/O KURAHALLI, KORA HOBLI - 572 128. TUMAKURU TALUK AND DISTRICT. 8. SRI. C. K. KHALEED S/O LATE U.M.ABDULLA, AGED NOT KNOWN TO THE APPELLANT R/O T.F.MANJIL, BESIDE INDIAN OIL PETROL BUNK, N.H-4, YALIYUR VILLAGE, KASABA HOBLI - 572 137. SIRA TALUK, TUMAKURU DISTRICT. …RESPONDENTS (BY SRI. G. S. KISHAN, ADVOCATE FOR R8; R1, R5 & R7 - SERVICE HELD SUFFICIENT; VIDE ORDER DATED:12/12/2024. R2 & R4 ARE SERVED; VIDE ORDER DATED:31/08/24, R3 & R6 SERVICE HELD SUFFICIENT) THIS RSA IS FILED UNDER ORDER 42 RULE (2) R/W. SEC.100 OF CPC., AGAINST THE ORDER DATED:19.08.2019 PASSED IN RA NO.66/2018 ON THE FILE OF THE VI - 3 - NC: 2025:KHC:10091 RSA No. 259 of 2020 ADDL.DISTRICT AND SESSIONS JUDGE AT TUMAKURU DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED:23.11.2017 PASSED IN OS NO.50/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AT TUMAKURU. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant/plaintiff challenging the order on I.A.No.1 dated 19.08.2019 passed in RA.No.66/2018 on the file of VI Addl. District & Sessions Judge, Tumakuru. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession in OS.No.50/2010. It is the case of the plaintiff that one Boraiah was the original propositus and he had two daughters namely Puttamma and Gowramma- - 4 - NC: 2025:KHC:10091 RSA No. 259 of 2020 the defendant No.5 herein. Puttamma died leaving behind defendant Nos.1, 2 and 8. The plaintiff is the daughter of defendant No.1. Defendant Nos.3 and 4 are the sons of the defendant No.2. The defendant Nos.6 and 7 are the children of the Gowramma i.e., defendant No.5. It is contended that the suit schedule properties are the joint family properties of the plaintiff and defendants and they are the members of Hindu undivided joint family, and there is no partition effected between the plaintiff and defendants. The husband of petitioner was a manager and looking after the affairs of the joint family. Defendant Nos.1, 2 & their father having no right have sold 2 acres in suit item No.2 in favour of Defendant No.9 under registered sale deed and defendant No.1 executed a Relinquishment deed in favour of Defendant No.2. The plaintiff requested the defendants to effect the partition, but the defendants refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant Nos.2 to 9 filed their written statements and defendant Nos.5 to 7 and 9 also filed their additional written statements. The defendants have admitted the - 5 - NC: 2025:KHC:10091 RSA No. 259 of 2020 relationship between the plaintiff and the defendants. It is contended that the suit schedule item Nos.1 to 3 properties originally belonged to Somaiah and his son Nanjaiah. They have gifted it to Puttamma i.e., the grand mother of the plaintiff and mother of defendants No.1, 2 and 8 under a registered gift deed dated 02.04.1951. Gowramma had no share in the suit schedule properties. Based on the registered gift deed dated 02.04.1951, the name of the Puttamma came to be entered in the revenue records. After her demise, defendant Nos.1, 2 and 8 succeeded the suit schedule properties under Section 15 of the Hindu Succession Act. It is contended that there was a partition under panchayathi palupatti dated 01.01.1996 between the defendant Nos.1, 2 and their father Shivalingaiah. Hence, defendant No.1 executed a release deed regarding the suit schedule item No.2 in favour of defendant No.2 by receiving ₹50,000/- from defendant No. 2. Hence, prays to dismiss the suit against defendant Nos.2 to 4 and 8. 5. Defendant Nos.5 to 7 filed a written statement, and additional written statement by admitting the relationship between the plaintiff and defendant Nos.1 to 8 and admitted - 6 - NC: 2025:KHC:10091 RSA No. 259 of 2020 that they constituted a Hindu undivided joint family and Shivalingaiah was the manager of the joint family, who was looking all the affairs of joint family. It is contended that, Defendant Nos.5 to 7 have filed a suit against Defendant Nos.1, 2, 8 & 9 for partition and the said suit ended up in a compromise and a compromise decree was drawn. And by denying the remaining pleadings, it is contended that defendant Nos.5 to 7 are entitled to 1/2 share in the suit schedule properties and prayed to dismiss the suit in respect of suit item Nos.1 and 2 of the suit schedule properties. 6. Defendant No.9 filed a written statement and an additional written statement denying the averments made in the plaint and prays to dismiss the suit. 7. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the plaintiff proves that she and defendants No.1 to 8 have constituted a Hindu Joint Family and the suit schedule properties are their joint family properties? 2) Whether the plaintiff proves her 1/2 share in the suit schedule properties? 3) Whether plaintiff proves that the sale deed dated 18.05.2006 and relinquishment deed - 7 - NC: 2025:KHC:10091 RSA No. 259 of 2020 dated 17.11.2009 as well as compromise decree in OS.No.3/2007 are not binding on her share? 4) Whether defendants No.2 to 4 and 8 prove that the court fee paid by the plaintiff is insufficient? 5) Whether defendants No.2 to 4, 8 and 9 prove the partition of the family properties between father of the plaintiff and the 2nd the defendant? 6) Whether defendants No.5 to 7 prove that the compromise decree is collusive decree and sale deed dated 18.05.2006 as well as relinquishment deed dated 17.11.2009 are outcome of fraud, undue influence and coercion? in OS.No.3/2007 7) Whether plaintiff is entitled for the relief as prayed? 8) Whether defendants No.5 to 7 are entitled for the reliefs as prayed? 9) What order or decree? 8. To prove the case of the plaintiff, the GPA holder of the plaintiff examined as PW-1, examined one witness as PW-2, and marked 11 documents as Exs.P1 to P11. In rebuttal, on behalf of the defendants, defendant No.9 was examined as DW- 1. on behalf of defendant No.9 his special attorney holder was examined as DW-2 and marked 9 documents as Exs.D1 to D9. The Trial Court after assessing the oral and documentary evidence of the parties, answered issue Nos.1 to 5, 7 and 8 in - 8 - NC: 2025:KHC:10091 RSA No. 259 of 2020 the negative, issue No.6 does not survive for consideration, and issue No.9 as per the final order. The suit of the plaintiff and the counter claim of defendants Nos.5 to 7 were dismissed with cost vide judgment dated 23.11.2017. 9. The plaintiff aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.66/2018 on the file of VI Addl. District & Sessions Judge, Tumakuru. The plaintiff also filed an application in I.A.No.1 for the condonation of delay of 44 days in filing an appeal. The Appellate Court rejected the IA.No.1, and Consequently dismissed the appeal. The plaintiff, aggrieved by the judgments and decree, and order passed on IA by the courts below, has filed this second appeal. 10. Heard the arguments of the learned counsel for the parties. 11. Learned counsel for the plaintiff/appellant submits that, there was a delay of 44 days in filing the appeal. It is submitted that, the plaintiff was unwell and he was unable to follow the proceedings before the Trial Court. He was not aware of the judgment, and decree passed by the Trial Court. He - 9 - NC: 2025:KHC:10091 RSA No. 259 of 2020 submits that the plaintiff was prevented from filing the appeal well within the time. In support of his arguments he also placed his reliance on the judgment of the Hon'ble Apex Court in the case of Collector Land Acquisition, Anantnag & Another Vs Mst. Katiji & Ors, reported in (1987)2 SCC 107. It is submitted that the Appellate Court has not properly considered the sufficient cause shown by the plaintiff. The plaintiff cannot be thrown out of the court on technical grounds. Hence, on these grounds he prays to allow the appeal. 12. Per contra, the learned counsel for defendant No.9 supports the impugned order and submits that there is a delay in filing an appeal and the plaintiff has not shown sufficient ground for condonation of a delay of 44 days in filing an appeal. Hence, on these grounds, he prays to dismiss the appeal. 13. This court admitted the appeal to consider the following substantial question of law. Whether the First Appellate Court was justified in dismissing the appeal on the ground of Limitation? - 10 - NC: 2025:KHC:10091 RSA No. 259 of 2020 14. It is not a dispute that the plaintiff filed a suit for partition and separate possession. The defendant Nos.5 to 7 also filed a written statement and made a counter claim regarding item No.3 of the suit schedule property. The parties have led their evidence, the Trial Court dismissed the suit. The plaintiff ought to have filed an appeal within 30 days from the date of passing the impugned order. The plaintiff could not file an appeal within 30 days, as the plaintiff was unwell and he was advised to take bed rest. After recovery from the illness, the plaintiff approached the counsel and handed over the file to the learned counsel for preferring an appeal, thus the delay of 44 days is caused in preferring an appeal. The Appellate Court, while considering the application under Section 5 of the Limitation Act, must consider the said application liberally and court cannot dismiss the application on a technical ground. The Appellate Court committed an error in rejecting the application filed for condonation of delay of 44 days in filing the appeal. The order passed by the Appellate Court is contrary to the law laid down by the Hon'ble Apex Court in the case of Collector Land Acquisition, Anantnag & Another, supra. The plaintiff has shown a sufficient Cause in not preferring an appeal before - 11 - NC: 2025:KHC:10091 RSA No. 259 of 2020 the first Appellate Court within the time. The first Appellate Court ought to have allowed the appeal by condoning delay, on the other hand, the first Appellate court rejected the applications and, consequently, dismissed the appeal. The order passed by the first Appellate Court is arbitrary and erroneous, and the same is liable to be set aside. In view of the above discussion, I answer substantial question of law in the Negative. 15. In view of the aforesaid facts, and circumstances, I proceed to pass the following: i. ii.
Decision
ORDER The Appeal is allowed. Impugned order on I.A.No.1 dated 19.08.2019 is set aside. Accordingly, IA.No.1 is allowed. The Delay of 44 days in filing an appeal before the first Appellate Court is condoned. iii. The matter is remitted to the first Appellate Court. - 12 - NC: 2025:KHC:10091 RSA No. 259 of 2020 iv. The first Appellate Court is directed to hear an appeal on merits, and pass an appropriate judgment in accordance with the law. v. vi. The Office is directed to transmit the records to the first Appellate Court. The Parties are directed to appear before the First Appellate Court on 15.04.2025 without awaiting any notice. vii. This court did not make any adjudication on merits in issue. viii. All the contentions of the parties are kept open. SD/- (ASHOK S.KINAGI) JUDGE SRK List No.: 1 Sl No.: 14 CT:SK