- 1 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.58 OF 2020 (PAR) BETWEEN: 1. SMT JANAKI W/O LATE SANJEEVA SAPALYA, AGED ABOUT 69 YEARS, 2. DAYANANDA S/O LATE SANJEEVA SAPALYA, AGED ABOUT 52 YEARS, APPELLANT NOs.1 AND 2 ARE RESIDING AT MOGARNADU CAR STREET, NARIKOMBU VILLAGE AND POST, BANTWAL TQ., D.K. PIN-574219. 3. SHRIMATHI @ SUMATHI W/O GANESH, AGED ABOUT 51 YEARS, RESIDING AT MASJID, ADYAR PADAVU POST, MANGALURU TALUK, D.K. DISTRICT, PIN-575004. 4. CHIDANANDA S/O LATE SANJEEVA SAPALYA, AGED ABOUT 49 YEARS, 5. MR.VINOD S/O LATE SANJEEVA SAPALYA, AGED ABOUT 47 YEARS, APPELLANT NO.4 AND 5 ARE Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 RESIDING AT MOGARNADU CAR STREET, NARIKOMBU VILLAGE AND POST, BANTWAL TALUK, D.K.DISTRICT-574219. …APPELLANTS (BY SRI RAVISHANKAR SHASTRY G, ADVOCATE) AND: 1. SMT GOPI @ VATSALA D/O LATE GURUVAPPA SAPALYA, AGED ABOUT 71 YEARS, RESIDING AT DEVI KRIPA HOUSE, BAJJODY, MANGALURU, D.K. DISTRICT, PIN-575005. 2. NARAYANA SAPALYA S/O LATE GURUVA SAPALYA, AGED ABOUT 66 YEARS, RESIDING AT MOGARNADU CAR STREET, NARIKOMBU VILLAGE AND POST, BANTWAL TALUK, D.K.DISTRICT PIN-574219. 3. BABU SAPALYA H/O LATE SEETHA, AGED ABOUT 74 YEARS, RESIDING AT BOLANTHOOR HOUSE, NARIKOMBU VILLAGE AND POST, BANTWAL TALUK, D.K. DISTRICT PIN-574219. 4. DINESH BANGERA S/O LATE SEETHA, AGED ABOUT 53 YEARS, RESIDING AT PUTHROTTEBAILU HOUSE, NARIKOMBU VILLAGE AND POST, BANTWAL TALUK, D.K. DISTRICT, PIN-574219. - 3 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 5. KERTHANA D/O LATE DAMODAR, ADULT, PUTHROTEBAILU HOUSE, NARIKOMBU VILLAGE AND POST, BANTWAL TALUK, D.K. DISTRICT, PIN-574219. 6. MALLIKA D/O LATE SEETHA, AGED ABOUT 46 YEARS, R/AT AVANEESHA NILAYA, NEAR POLALI DWARA, BANGALAGUDDE, KAIKAMBA, MANGALURU, D.K. DISTRICT PIN-575008. 7. MR.RAVI S/O LATE SEETHA, MAJOR, R/AT BOLANTHOOR HOUSE, NARICOMBU VILLAGE AND POST, BANTWAL TALUK, D.K. DISTRICT, PIN-574219. 8. MR.NAVEEN BANGERA S/O LATE SEETHA, MAJOR, R/AT BOLANTHOOR HOUSE, NARICOMBU VILLAGE AND POST, BANTWAL TALUK, D.K. DISTRICT, PIN-574219. 9. SMT.HONNAMMA D/O LATE GURUVA SAPALYA, AGED ABOUT 69 YEARS, R/AT GANADAKOTYA HOUSE, KANNOR POST, MANGALURU TALUK, D.K. DISTRICT. PIN-575012. - 4 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 10. SMT.BHAVANI D/O LATE GURUVA SAPALYA, AGED ABOUT 64 YEARS, R/AT DELANTHABETTU VILLAGE, SOORINJE POST, MANGALURU TALUK, D.K. DISTRICT. PIN-575014. 11. SMT.HEMALATHA W/O LATE GANGAYYA SAPALYA, AGED ABOUT 66 YEARS, 12. SMT.GEETHA D/O LATE GANGAYYA SAPALYA, AGED ABOUT 49 YEARS, RESPONDENTS NO.11 AND 12 ARE R/AT THOTA VILLAGE, SANDSPIT BENGARE, MANGALURU TALUK, D.K. DISTRICT. PIN-575 019 …RESPONDENTS (BY SRI NATARAJA BALLAL A, ADVOCATE FOR R1 AND R4 TO R10; R2, R3, R11 AND R12 ARE SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CODE OR CIVIL PROCEDURE AGAINST THE ORDER DATED 27.09.2019 PASSED IN RA NO…………./2018 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, D.K, MANGALURU DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 05.01.2006 PASSED IN OS NO.77/1996 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN) AND CJM, MANGALORE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 5 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 ORAL JUDGMENT Heard Sri Ravishankar Shastry, learned counsel for the appellants and Sri G. Nataraja Ballal A., learned counsel for contesting respondents. 2. Present appeal is filed challenging the order passed by the First Appellate Court in unnumbered R.A……../2018, whereby I.A.No.II filed by the appellants in the said appeal under Section 5 of the Limitation Act came to be rejected, consequently, appeal came to be rejected, whereby decree of the trial Court in O.S.No.77/1996 got confirmed. 3. Facts in the nutshell for disposal of the present appeal are as under: A suit for partition and separate possession came to be filed in respect of the following properties (hereinafter referred to as ‘suit properties’). Item No. R.S.No. KISSAM EXTENT ASSESSMENT 1. 123-1D Nanja 3.88 3.88 2. 123-4 Bagayath 10 0.31 3. 124-1B Nanja 23 1.81 - 6 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 4. 124-2A Nanja 74 3.01 5. 124-2C Nanja 62 2.53 6. 117-30 Nanja 1.25 5.13 7. 124-2E Nanja 40 1.63 8. 124-3 Nanja 40 1.63 4. Plaintiff laid the claim contending that plaintiff and defendant Nos.1 to 5 are the children of Guruva Sapalya and defendant No.6 is the daughter-in-law and defendant No.7 is the granddaughter of said Guruva Sapalya and they all constitute a joint family. 5. Suit properties is possessed and enjoyed by said Guruva Sapalya as a Chalgeni tenant. After the Karnataka Land Reforms Act came into force, Guruva Sappalya filed Form No.7 before the Land Tribunal, Bantwal and occupancy rights in respect of the suit property was granted by the Land Tribunal, Bantwal, in the name of Guruva Sapalya, as per the order dated 31.08.1976. 6. Landlord challenged the said order of the Land Tribunal in respect of item Nos.1 and 2 of the suit properties before this Court and matter was remitted to Land Tribunal for fresh consideration. - 7 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 7. After remand, a fresh enquiry was held and by order dated 29.04.1988, again occupancy right was granted in the name of Gangayya Sapalya, who is the husband of defendant No.6 and father of defendant No.7 and defendant Nos.2 and 3 in respect of item Nos.1 and 2 of the suit properties, since Guruva Sapalya died intestate living behind the plaintiff, late Gangayya Sapalya and defendant Nos.2 to 5 as his legal heirs, suit for partition came to be filed. 8. Gangaya Sapalya died on 08.02.1996 leaving behind defendant Nos.6 and 7 as his legal heirs and defendant Nos.2 and 3 are trying to exclude plaintiff from enjoying the suit properties. Therefore, suit for partition came to be filed seeking 1/7th share in the suit properties. 9. Pursuant to the suit summons, defendants entered appearance but none of them filed any written statement to contest the suit. 10. It is submitted that during the pendency of the suit, a compromise petition came to be filed along with the sketch. 11. By perusing the order dated 20.01.1998, it is seen that parties appeared and admitted the compromise. However, Court did not accept the compromise. Matter was postponed - 8 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 further and ultimately when there was no acceptance of the compromise by the Court as is contemplated under Order XXIII Rule 3 CPC, plaintiff proceeded with the suit. 12. Learned trial Judge after recording the evidence of the plaintiff, raised the necessary points and decreed the suit granting 1/7th share. 13. It is the contention of the present appellants that by the time the suit came to be decreed, defendant No.1 and defendant No.3 were no more and as such, decreeing the suit against the dead persons has resulted in grave injustice and sought for admitting the appeal. 14. He also contended that the learned Judge in the First Appellate Court dismissed the appeal not on the merits of the matter, but on question of delay, which is incorrect having regard to the fact that the appellants before the First Appellate Court were kept in dark about the pendency of the suit, as admittedly their father, who were parties to the suit as defendant No.1, having died, and they came to know about the proceedings only when they received the notice from the Court in respect of the belated Final Decree Proceedings. - 9 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 15. Sri Ravishankar Shastri, learned counsel for the appellants would also contend that the approach of the trial Court in keeping the compromise petition pending without acceptance and thereafter decreeing the suit of the parties by granting 1/7th share has resulted in grave miscarriage of justice and sought for admitting the appeal on the following substantial questions of law: i) Whether the Lower Appellate Court has erred in law in dismissing I.A.No.II filed under Section 5 of the Limitation and whether such order is bad for not considering evidence of PW.1 and Ex.P.4 and 5? ii) Whether the Lower Appellate Court has erred in law in not considering the sufficient cause shown by appellants while seeking condoning the delay in filing the appeal ? iii) Whether the findings of lower appellate court that rights of the appellants are not marginalized is opposed to opposed to pleaded facts and evidence tendered ? iv) Whether the Courts below have erred in holding that plaintiff is entitled for share and whether such finding is opposed to the law especially when the married daughter is excluded from the - 10 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 definition of family under the provisions of Karnataka Land Reforms Act ?” 16. Sri Ravishankar Shastry, contended that non impleading the legal representatives of defendant No.1 and defendant No.3 and decreeing the suit, has resulted in grave miscarriage of justice and sought for allowing the appeal. 17. Per contra, Sri Natraja Ballal, learned counsel for respondent Nos.1 and 4 to 10 contended that the death of defendant No.1 and defendant No. 3 during the pendency of the suit is not brought to the notice of the trial Court. 18. He further contended that when there was no acceptance of the compromise by the court, it should be construed that it is a deemed rejection. Therefore, proceeding with the suit and granting 1/7th share of the suit properties in favour of each of the parties was the only remedy which has been granted by the trial Court in the decree, which requires no interference. 19. Having heard the arguments of both sides, this Court perused the material on record meticulously. 20. On such perusal of the material on record, even before this Court, counsel for the appellants has produced the - 11 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 sketch which is said to have been annexed along with the compromise petition. Except the entry in the order sheet about submitting the compromise petition, said compromise petition is not forthcoming in the records. 21. According to Sri Ravishankar Shastri, said compromise petition is destroyed in the trial Court records. Who destroyed the same and when it was destroyed is not forthcoming on record. 22. Further, the fact remains that the trial Court did not accept the compromise by passing an order recording satisfaction. 23. In this regard, to understand the legal position, it is just and necessary for this Court to cull out Order XXIII Rule 3 CPC, which reads as under. “1. xxxxxx 2. xxxxxxxxxxxxx 3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties], or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject–matter of the suit, the - 12 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same the subject-matter of the suit] [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.]” 24. On careful reading of Order XXIII Rule 3 CPC, it is to be seen that every compromise petition filed into the Court need not be accepted by the Court unless the Court is satisfied that the compromise is true and is not tainted. 25. The very fact that the words employed in Order XXIII Rule 3 CPC to the effect that where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, the Courts are not bound to record the satisfaction of the compromise petition and decree the suit in terms of the compromise. - 13 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 26. Such an onerous responsibility is cast on the Court under Order XXIII CPC in order to reassure itself that compromise is not illegal or it is tainted. 27. In the case on hand, on 20.01.1998 the parties have no doubt appeared before the Court and they have accepted the compromise terms. Why the learned trial Judge did not record the satisfaction of the compromise and decree the suit is not forthcoming either from the order sheet or any other material on record. 28. Fact remains that even after 20.01.1998 suit proceeded. After long time, when nothing moved, plaintiff was required to step into the witness box and depose about the case in the absence of any written statement by any of the parties. 29. Thereafter learned trial Judge taking into consideration the oral testimony of P.W.1 and documentary evidence marked before the Court vide Ex.P1 to P8, decreed the suit of the plaintiff granting 1/7th share. 30. There is a belated Final Decree Proceedings filed by the plaintiff in the year 2018 for the decree that is obtained in the year 2006. - 14 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 31. When the notice of the Final Decree Proceedings is served, then the legal representatives of defendant No.1 approached the First Appellate Court with a belated appeal contending that the decree passed by the trial Court is an exparte decree and its nullity. 32. Learned Judge held an enquiry on I.A.No.II in the said unnumbered regular appeal R.A.…………./2018 and taking note of the huge delay of twelve years, rejected the application numbered as I.A.No.II filed under Section 5 of the Limitation Act and thus, rejected the appeal. 33. The validity of the said order of the First Appellate Court is called in question. First substantial question of law thus, is to the effect that whether the First Appellate Court was justified in rejecting the application numbered as I.A.No.II in an unnumbered R.A.………./2018 filed under Section 5 of the Limitation Act. 34. Admittedly, the applicants in I.A.No.II pleaded that they were not aware of the suit wherein defendant No.1 was a party and it is only when they received the notice from the Court they came to know about the decree. - 15 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 35. Learned Judge in the First Appellate Court while rejecting the I.A.No.II in unnumbered R.A.………./2018, dated 27.09.2019 has taken into account the contents of the affidavit meticulously and in Para 9 to 13 of the order of the First Appellate Court has dealt in detail and by supplying the cogent reasons rejected the I.A.No.II. 36. Paragraphs 9 to 13 of the order of the First Appellate Court reads as under: “9. Now, in the Appeal Memorandum itself while narrating the brief facts, these applicants have referred about, their father Sanjeev Sapalya and other defendants having approached plaintiff/respondent No.1 on service of summons and filing the compromise petition. Therefore, that itself clearly goes to show that, these applicants were aware of the litigation between Sanjiv Sapalya and his sister Gopi allas Vathsala and other brothers and sisters who are the co-defendants. In the affidavit enclosed to I.A.II, no allegation is made as against the co- defendants or Sanjeev Sapalya, who are Uncles and paternal aunts of these applicants, stating that they have colluded with the plaintiff/respondent No.1 and got this decree. It is pertinent to note that, the other defendants have not challenged the preliminary decree. Therefore, probably what is goes to show that, taking advantage of this technicality of not reporting the death of defendant No.1 Sanjeev Sapalya, these applicants have been pushed to the Court to file this - 16 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 appeal with condonation of delay application, to scuttle the Preliminary decree obtained by R-1. This is one aspect. 10. The learned Counsel for the applicants vehemently argued that, the decree against dead is nullity. Technically it sounds correct, but in a partition suit death of one of the sharers will not result in, proceedings getting abated. Apart from that, now by virtue of that, to the appellants, who are the direct heirs of Sanjeev Sapalya. whatsoever the right and share of deceased Sanjeev Sapalya, has not been touched, and that is always available to them, that which can be worked out in the final decree and carve out their share. Even looking to the grounds and regard being had to the definition of Section 2(11) read with Section 24 of Land Reforms Act, circumstances of this, whether not condoning the delay would affect the rights of the parties seeking the condonation of delay and whether in the event of allowing the same it would be opposed to public policy and in such a matter the conduct of the parties is very relevant. This aspect has been dealt with in the recent Judgment of the Honorable Apex Court in Civil Appeal Nos.7630-7631/2019 (arising out of SLP © Nos.29205- 28295/2015): between Smt.Narayanamma and another, v/s. Shri Govindappa and others. No doubt, the above referred judgment is in respect of the granted land only and disposed of on merits. 11. In the report decision one legal maxim has been of the highlighted, drawing strength from the decision of the Honourable Apex Court reported in [(1960)1_SCR_861: between Kedar Nath Motani And Ors. vs Prahlad Rai And - 17 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 Ors. The said maxim is ex turpi causa non oritur actio and ex dolo malo non oritur actio and further held that, in such cases public policy required that, rule of turpi causa, shall be excluded by the more important and imperative rule that agents and trustees must faithfully perform the duties of their office. This explanation is with reference to one of the examples cited in the reported decision. 12. Therefore, in given circumstances in such type of cases what is required to be seen is, "where the illegality is of so light or venial a character that it is deemed more opposed to public policy to allow the defendant to violate his fiduciary relation with the plaintiff than to allow the plaintiff to gain the benefit of an illegal transaction". Therefore, taking into consideration this principle, we if look into the judgment and decree rendered by the trial Court, as to, whether any vested rights of these applicants have been marginalised or taken away. If that is not there, then just because the death of Sanjeev Sapalya occurred during pendency of the suit, when admittedly nobody represented the matter to the Court, that itself cannot be the reason to hold that, the decree has become nullity. As pointed out earlier, in the partition suit, there is no question of abatment. Because other sharers were very much on record. 13. Apart from that, what it goes to show that even though Sanjeev Saphalya's death is not in dispute, but there is dispute as to, when he died. Because, Ex.P.3 Death Certificate shows that, entry of date of death as 12.01.2003 is sought to be incorporated by approaching - 18 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 the JMFC (IV Court), Mangaluru in M.C.No.176/2014. Now, admittedly, these applicants are the residents of Mogarnadu Car Street House, Naikombu Village of Bantwal Taluk and have not approached the Magistrate Court at Bantwal, but have clandestinely managed to get the death Certificate by approaching the Magistrate Court in Mangaluru. Therefore, this also speaks volumes about their conduct and further it evident that, only scuttle the validly obtained decree, the false plea of death of Sanjeev Saphalya during the year 2003 itself appears to have been taken, somehow to create record to show that, as on the date of Judgment i.e., 05.01.2006, he was not alive. It is further clear from the Order sheet in O.S.No.77/1996 that all the three Advocates have represented the case and have not reported the death of Sanjeev Saphalya.” 37. In the light of the reasons assigned by the First Appellate Court as referred to supra, this Court does not find any illegality by the First Appellate Court in rejecting the application seeking condonation of delay. 38. Therefore, first substantial question of law is answered against the appellants. Consequently, rejection of the appeal by the First Appellate Court is just and proper and therefore, second substantial question of law is also answered against the appellants. - 19 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 39. The third substantial question is to the effect that whether the rejection of the application seeking condonation of delay and consequent dismissal of the appeal would amount to a decree, needs no further explanation inasmuch as rejection of an appeal even on the question of limitation would be a decree in the eye of law as it attained its finality disposed off. 40. Therefore, the third substantial question of law framed at the time of admission of the appeal is to be held that judgment of the First Appellate Court though on order on application under Section 5 of the Limitation Act would partake the nature of decree. 41. Now adverting to the merits of the matter, appellants are the legal representatives of defendant No.1 who was one of the sons of Guruva Sapalya. Said Guruva Sapalya was a chalgeni tenant under the landlord in respect of the suit properties. Soon after Land Reforms Act came into force, he filed the application under Form No. 7 before the Land Tribunal Bantwal. Land Tribunal Bantwal has granted the occupancy rights in favour of Guruva Sapalya. - 20 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 42. It is settled principles of law and requires no emphasis that if an occupancy right is granted in one person’s name, it would enure to the benefit of joint family. 43. Even otherwise, if there was a dispute raised by the Landlord in respect of Item Nos.1 and 2 of the suit properties and before this Court, the order of the Land Tribunal, Bantwal in respect of item Nos.1 and 2 was set aside and matter was remitted to the Land Tribunal, Bantwal for further enquiry. In the said enquiry, Land Tribunal granted occupancy rights to Gangayya Sapalya, who is one of the sons of Guruva Sapalya. 44. Granting of occupancy rights by Land Tribunal, Bantwal in favour of legal representatives of Gangayya Sapalya namely, defendant Nos.6 and 7 - wife and daughter had attained finality. 45. In other words, if Guruva Sapalya had no competency to bequeath the entire property in favour of defendant Nos.1, 2 and Gangayya Sapalya, will have to be held as incorrect as the suit properties enure to the benefit of entire joint family and not Guruva Sapalya or Gangayya Sapalya. 46. Therefore, the grant of 1/7th share to the plaintiff by the trial Court is just and proper. - 21 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 47. Lastly, Sri Ravishankar Shastri, also pressed into service that the Final Decree Proceedings itself is time barred and therefore, no final decree could have been passed. In this regard, the law is no longer res integra. 48. Hon'ble Apex Court in the case of Kattukandi Edathil Krishnan and another vs. Kattukandi Edathil Valsan and others reported in (2022) 16 SCC 71, has held that Final Decree Proceedings will have to follow automatically and there is no need to file a fresh petition for passing of the final decree. 49. In other words, the plaintiff was not at all required to file any Final Decree Proceedings and it was the duty of the trial Court to automatically register the Final Decree Proceedings after passing of the preliminary decree. 50. Under such circumstances, the feeble attempt made by the appellants to convince the Court that the Final Decree Proceedings is time barred cannot be countenanced in law. 51. Having held the substantial questions of law 1 and 2 against the appellants and holding that the third substantial question of law in affirmative stating that the order of rejection of the regular appeal on account of non-condonation of delay - 22 - HC-KAR NC: 2025:KHC:36361 RSA No. 58 of 2020 would amount to decree, this Court is of the considered opinion that the appeal needs to be dismissed as meritless. 52. Accordingly, the following ORDER (i) Regular Second Appeal is dismissed. (ii) However, the appellants are given liberty to seek for equitable partition, if they are in enjoyment of any particular portion of the property as per the Will said to have been executed by Guruva Sapalya and improve the same. (iii) No order as to costs. Sd/- (V SRISHANANDA) JUDGE MR