IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 981 of 2016 (PAR) Between:
SMT. CHIKKAPAPAMMA AGED ABOUT 53 Y EARS, WIFE OF SRI SUBBANNA, AT CHAMARAHALLI VILLAGE, HUTHUR HOBLI, KOLAR TALUK, PIN CODE – 563 103 (BY SRI RAMESH P KULKARNI, ADVOCATE) And:
1. MR. RAJASHEKARA BABU SON OF MR.ERAPPA, 49 YEARS, RESIDING AT PATNA VILLAGE, HUTHUR HOBLI, KOLAR TALUK, PIN CODE – 563 103 2. MR. ERAPPA, AGED ABOUT 73 YEARS, AT: PATNA VILLAGE, HUTHUR HOBLI, KOLAR TALUK, PIN CODE – 563 103 ... APPELLANT 3. SMT. SUJATHAMMA AGED ABOUT 58 YEARS, WIFE OF NAGARAJA & DAUGHTER OF C.ERAPPA, RESIDING AT BENGANUR VILLAGE, KASABA HOBLI, BANGARPET TALUK – 563 114 ... RESPONDENTS THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 10.03.2016 PASSED ON I.A.No.1 IN R.A.No.221/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC., KOLAR, DISMISSING THE I.A.No.1 FILED UNDER ORDER XLI RULE 3 OF CPC., READ WITH SECTION 5 OF INDIAN LIMITATION ACT., FILED AGAINST THE JUDGMENT AND DECREE DATED 19.02.2003 PASSED IN O.S.No.309/2000 ON THE FILE OF THE PRL. CIVIL JUDGE (JR. DN.) KOLAR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendant No.3 in O.S.No.309/2000 on the file of the Prl. Civil Judge (Jr.Dn.), Kolar (for short, ‘the civil Court’). The appellant has filed this appeal challenging the judgment dated 19.02.2003 in O.S.No.309/2000 and order dated 10.03.2016 on I.A.No.1 in R.A.No.221/2013 on the file of the II Additional Senior Civil Judge & JMFC., Kolar (for short, the appellate Court). The appellate Court by its order dated 10.03.2016 has rejected the application filed by the appellant under Section 5 of the Limitation Act,1963 seeking condonation of over 6 years, 6 months and 13 days delay in filing the first appeal and consequently dismissed the appeal.
2. The undisputed facts are that the respondent No.1 filed the suit in O.S.No.309/2000 for partition against his father-respondent No.2 and his sister-respondent No.3 including the appellant as one of the defendants. The appellant is included because he has purchased item Nos.4 and 5 of the suit schedule properties. The respondent No.1 while seeking partition in all the suit schedule properties, including the properties purchased by the appellant, contended that the respondent No.2 had transferred the aforesaid two lands in favour of the appellant, and these lands should be allotted to the share of the respondent No.2 so that the appellant’s purchase of these properties could be secured while working out equities, and the appellant also made such a request.
3. In the light of these submissions, the civil Court, while decreeing the suit granting to the plaintiff a share in all the properties, and answering Issue No.8 has concluded that the properties purchased by the appellant should be allotted exclusively to the respondent No.2 so that the appellant’s purchase is not affected in any further final decree proceedings.
4. The appellate Court has rejected the application filed under Section 5 of the Limitation Act,1963 refusing to condone the delay concluding that the appellant has not satisfactorily explained each day’s delay, and in any event the appellant’s interest is protected by the trial Court’s finding on Issue No.8.
5. This Court, on perusal of the judgment of the trial Court and the reasons assigned by the appellate Court, and also for the reason that the appellant’s interest is sufficiently protected by the civil Court’s judgment, does not find any reason to interfere with the impugned judgment. Further, no substantial question of law arises. Therefore, the appeal is dismissed.
Sd/- Judge KPS/RB