IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL No.1400/2015 (INJ) BETWEEN:
VEERAMARAIAH, S/O VEERABHADRAIAH, AGED ABOUT 72 YEARS, R/AT SEEGE PALYA, DODDABELAVANGALA HOBLI, DODDABALLAPUR TALUK – 562 101. …APPELLANT (BY SRI VIGNESHWARA.U, ADVOCATE) AND :
GANGAIAH, S/O VEERAIAH @ VEERANNA, AGED ABOUT 68 YEARS, R/AT SEEGE PALYA, DODDABELAVANGALA HOBLI, DODDABALLAPUR TALUK – 562 101. …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 12.02.2013 PASSED IN R.A.No.91/2008 ON THE FILE OF THE FAST TRACK COURT, DODDABALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.11.2008 PASSED IN O.S.No.226/1998 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN) AND J.M.F.C, DODDABALLAPUR.
THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The defendant in O.S. No.226/1998 on the file of Additional Civil Judge (Jr. Dn.) and JMFC., Doddaballapur, has come up in this second appeal impugning the concurrent finding rendered by both the Courts below in decreeing the suit of the plaintiff for the relief of permanent injunction with cost.
2. Admittedly, the Regular Appeal in R.A. No.91/2008 filed by the appellant herein came to be dismissed by the lower appellate Court by its judgment dated 12.02.2013. Thereafter, the present appeal is filed on 20.08.2015. Since there is delay of 829 days in filing the appeal, the application in I.A. No.1/2015 is filed in this proceedings.
3. Notice on I.A. No.1/2015 is not yet ordered to the respondent. However, considering the fact that this second appeal is filed against the concurrent finding of both the Courts below and it is filed with an inordinate delay of 829 days, this Court would like to ascertain as to whether any grounds are made out for condoning the said inordinate delay in filing the appeal. Hence, application in I.A. No.1/2015 is taken up to consider as to whether it calls for issuance of notice to the respondent.
4. Heard the learned counsel for the appellant.
Perused the affidavit filed in support thereof. The appellant has stated in his affidavit that after disposal of the appeal, the entire case file which was handed over to him by his counsel was misplaced in his residence and he had requested his counsel to take out another set of papers for the purpose of filing the appeal. He has further stated that due to financial constraint in the family, he could not file the appeal immediately and it is only after securing the documents, he instructed his counsel to file the appeal. He would state that the said delay is for bona fide reasons.
5. However, this Court on going through the material available on record, is not willing to accept the explanation offered by the appellant herein for the delay caused in filing the appeal inasmuch as the original suit in O.S. No.226/1998 was filed by the plaintiff – respondent herein for the relief of permanent injunction in respect of the property bearing Sy. No.80 (old No.44) situate at Apakaranahally, Doddabelavangala hobli, Doddaballapura Taluk. In the said suit, the defendant – appellant herein contended that he had purchased the land bearing Sy. No.45 measuring 01 Acre 14 guntas along with land in Sy. No.71 from one Mruthyunjaya under registered sale deed dated 21.10.1997.
6. The trial Court having regard to the evidence adduced by the parties, in para No.11 of its judgment has observed that: the suit schedule property measuring 04 Acres was originally numbered as Sy. No.44 and later, it was re- numbered as 80 as per the order dated 23.11.1959 referred to in Ex.P2, which is extract of mutation register; the suit schedule property was granted in favour of the plaintiff’s mother by the Government vide Ex.P12 – grant certificate dated 08.09.1960 and the evidence adduced by the plaintiff clearly established that he was the owner in possession of the suit schedule property. The trial Court has further observed that though the defendant claimed that he was the owner of the property bearing Sy. No.45, he had not produced any material to show that the suit schedule property and the land in Sy. No.45 was one and the same and he had categorically admitted during his cross-examination that he was not in possession of the suit schedule property.
7. It is in this background that the suit of the plaintiff was decreed by the trial Court by its judgment and decree dated 07.11.2008. Aggrieved by the same, the appellant herein preferred Regular Appeal in R.A. No.91/2008 before the Fast Track Court at Doddaballapur on 06.12.2008. This indicates that up to the time of filing of the appeal before the lower appellate Court, the appellant herein was diligent in prosecuting the matter. However, the lower appellate Court on re-appreciation of the evidence adduced by the parties, by its judgment dated 12.02.2013, has dismissed the said appeal while confirming the judgment and decree passed by the trial Court. Thereafter, no steps were taken by the appellant herein to file the appeal and it is only in the year 2015 i.e., on 20.08.2015, the present appeal was filed with an inordinate delay of 829 days.
8. It is clear from the material on record that the appellant has not made out any cause much less any sufficient cause to condone the said inordinate delay in filing this appeal. This Court find that no justifiable grounds are there to issue notice regarding I.A. No.1/2015 filed by the learned counsel for the appellant seeking condonation of the said inordinate delay.
9. Hence, I.A. No.1/2015 is dismissed.
Consequently, this second appeal filed by the defendant in O.S. No.226/1998 in challenging the concurrent finding rendered by both the Courts below is hereby dismissed.
Sd/- JUDGE sma