IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA REGULAR SECOND APPEAL No.1805 OF 2015 (Par) BETWEEN:
MR.GOWRANNA S/O LATE MR.SANNA PALAIAH AGED ABOUT 62 YEARS RESIDENT OF YADALAGHATTA VILLAGE THALAKU HOBLI, CHALLAKERE TALUK CHITRADURGA DISTRICT PIN:577522 ...APPELLANT (BY SRI L.MALLESH, ADVOCATE) AND:
1. MR.GOPALA S/O LATE MRSANNA PALAIAH AGED ABOUT 57 YEARS.
2. MR.CHANDRANNA S/O LATE MR.SANNA PALAIAH AGED ABOUT 57 YEARS.
3. MR.JAYANNA S/O MR.SANNA PALAIAH AGED ABOUT 55 YEARS.
RESPONDENTS NO.1 TO 3 ARE RESIDENTS OF YADALAGHATTA VILLAGE THALAKU HOBLI, CHALLAKERE TALUK, CHITRADURGA DISTRICT, PIN:577 522.
4. MRS.JAYAMMA D/O LATE MR.SANNA PALAIAH AGED ABOUT 60 YEARS RESIDENT OF DODDAULLARTHI VILLAGE THALAKU HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT, PIN : 577 537.
5. MRS.MARAKKA D/O LATE MR.SANNA PALAIAH AGED ABOUT 49 YEARS RESIDENT OF KASAVIGONDANAHALLI VILLAGE THALAKU HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT PIN:577537.
…RESPONDENTS (BY SRI B.M.SIDDAPPA, ADVOCATE FOR C/R1) THIS RSA FILED U/S. 100 READ WITH ORDER XLII RULE 1 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 02.02.2012 PASSED IN R.A.NO.46/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 06.03.2009 PASSED IN O.SNO.149/2007 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, AT MOLAKALMURU.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The first defendant in O.S.No.149 of 2007 on the file of the Civil Judge and J.M.F.C., Molakalmuru, Chitradurga District has come up in this second appeal impugning the concurrent findings of both the courts below in decreeing the suit of the plaintiff for the relief of partition and allotting separate share in the suit properties. The judgment and decree passed in O.S.No.149 of 2007 was subject matter of challenge in R.A.No.46 of 2010. The records would indicate that the appeal in R.A.No.46 of 2010 was filed one year after the suit was disposed of by judgment dated 06.03.2009 and the appeal was filed on 25.03.2010. The said appeal was also dismissed by judgment and decree dated 02.02.2012 against which the present appeal is filed on 07.11.2015, i.e., nearly after three years nine months. As against the concurrent findings of both the courts below, the second appeal is filed with delay of 1284 days. Hence, I.A.No.1 of 2017 is filed to condone the delay in filing the appeal.
2. In this appeal, the first respondent is represented by counsel through caveat. However, the said caveat is returned with office objections. Therefore, notice is required to be given to all the respondents. However, before considering whether the notice is necessary on I.A.No.1 of 2017, the learned counsel is called upon to address his arguments on the said application. He would submit that during the pendency of the appeal in R.A.No.46 of 2010, the appellant was affected with jaundice and he was not in a position to move about and that the doctors who were treating the appellant had advised complete rest and as a result of which, he could not contact his advocate and get the information with regard to the stage of the appeal. It is only after he completely recovered from the said ailment, he contacted his advocate during third week of September 2015 and came to know that the appeal filed by him in R.A.No.46 of 2010 was dismissed by judgment dated 02.02.2012. Hence, he has filed the present appeal.
3. Though he has stated that he was not keeping well, there are no documents filed along with I.A.No.1 of 2017 to show that between September 2012 to 2015, the appellant was suffering from jaundice and therefore, he was not in a position to move around. While noticing the reasons stated in the affidavit in support of I.A.No.1 of 2017, this Court also looked into the lower court judgment wherein it is seen that the suit of the plaintiff for partition was decreed in not accepting the contention of the defendants that there was a partition on an earlier occasion in the year 1983, which was denied by the defendants in setting up the defence that the said suit for partition was only for the purpose of loan transaction, which was not accepted by the court below. It is also supported by yet another partition between the parties in the year 1990 only for purpose of obtaining loan from the banks. It is on the basis of such defence, the suit of the plaintiff is decreed after noticing that the plaintiff and defendants are the joint family members and suit schedule properties are the joint family properties and the plaintiff is having a share in the suit schedule properties. The lower appellate court confirmed the same. As against the concurrent findings of both the courts below, this appeal is filed, with indordinate delay of 578 days. There appears to be no seriousness on the part of the appellant in pursuing this appeal. As could be seen while filing the appeal before the lower appellate court also, he has deliberately filed the appeal nearly after lapse of one year.
In that view of the matter, this Court finds no justifiable grounds to issue notice to the respondents on I.A.No.1 of 2017. Accordingly, the same is dismissed.
Consequently, the appeal is also dismissed.
Sd/- JUDGE dh