- 1 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1714 OF 2008 (DEC/INJ) BETWEEN: SRI SOORAIAH @ KUNTA SOORAIAH S/O KUNTA SOORAIAH AGED ABOUT 58 YEARS R/A HIREHALLI TAHLAK HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT. …APPELLANT (BY SRI. B M SIDDAPPA.,ADVOCATE) AND: 1. SMT OBAMMA W/O LATE D.SOORAIAH AGED ABOUT 61 YEARS 2. RAJESWARI D/O LATE D.SOORAIAH AGED ABOUT 39 YEARS 3. SRI GNANESHWARA S/O LATE D.SOORAIAH AGED ABOUT 37 YEARS Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 4. KALPANA D/O LATE D.SOORAIAH AGED ABOUT 35 YEARS 5. HEMALATH D/O LATE D.SOORAIAH AGED ABOUT 33 YEARSR/A SINCE DEAD BY HIS LEGAL REPRESENTATIVES 5(A) R.DA.SAIAH S/O JURRALA OBAIAH AGED ABOUT 40 YEARS 5(B) RAKSHIT S/O R.DASAIAH AGED ABOUT 10 YEARS 6. SRI THIMMANNA NAYAK S/O DODDAIAH AGED ABOUT 75 YEARS 7. SRI THIPPESWAMY S/O DODDAIAH AGED ABOUT 47 YEARS 8. SRI THIPPESWAMY S/O DODDAIAH AGED ABOUT 47 YEARS 9. SRI SOORAPPA S/O SOORAIAH AGED ABOUT 47 YEARS - 3 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 10. SRI PRAKASHA S/O SOORAIAH AGED ABOUT 43 YEARS ALL THE RESPONDENTS ARE R/A HIREHALLITHALAK HOBLI,CHALLAKERE TALUKCHITRADURGA DISTRICT …RESPONDENTS R2 SERVED, V/O DTD 24.07.2013 R2-R5 ARE LEGAL REPRESENTATIVES OF DECEASED R1 R3 SERVED V/O DTD 24.03.2017 APPEAL AGAINST R4 DISMISSED. RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 15.4.08 PASSED IN R.A.NO 53/04 ON THE FILE OF THE CIVIL JUDGE, (SR.DN), CHALLAAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 2.8.04 PASSED IN OS 200/01 ON THE FILE OF THE CIVIL JUDGE, (JR.DN), & JMFC., MOLAKALMURU. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 4 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 ORAL JUDGMENT This Regular Second Appeal is filed by the appellant, challenging the judgment and decree 15.04.2008, passed in R.A.No.53/2004 by the learned learned Civil Judge (Sr. Dn.), Challakere, confirming the judgment and decree dated 02.08.2004 passed in OS No.200/2001 by the learned Civil Judge (Jr. Dn.) and JMFC, Molakalmuru. 2. For convenience, the parties are referred to, based on their rankings 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 declaration to declare the plaintiff as a owner in possession and enjoyment of the suit schedule property and also for permanent injunction restraining the defendants from interfering with peaceful possession and - 5 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 enjoyment of the suit properties. It is the case of the plaintiff that the plaintiff is the owner and in possession of the suit land, which was acquired by him under a partition effected among him and his siblings in 1970, and based on the said partition, the katha was changed in the name of the plaintiff and is paying kandayam. The suit land is irrigated and the father of the plaintiff was buried in the said land and a samadhi is constructed therein. Defendant Nos.1 to 6 are the brothers, who have no right, title or interest in the suit property, and tried to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff advised the defendants, through the elders, but it has went in vain. Hence, a cause of action arose for the plaintiff to file a suit for a declaration and a permanent injunction. Accordingly, prays to decree the suit. 3.1. The defendants filed their written statement denying the averments made in the plaint and it is contended that the suit filed by the plaintiff is not - 6 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 maintainable for non-joinder of necessary parties. It is contended that the suit land is a dry-land. Towards southern side of Sy.No.41/3 there exists Sy.No.41/9, in between there is Dodda Suraiah deity temple, Rangaiah trees and Nagarakatte and since from their ancestor’s time, the defendant and villagers are performing poojas every year. There is a road by the side of the said temple which leads to Gajjugarahalli. It is contended that defendant No.6 is the poojari of the said temple and his ancestor’s were performing the pooja of the said deity. The said temple place has been in possession and enjoyment by the defendants since from their ancestor’s time. To cause hardship to the defendants in the matter of performing the pooja, the suit has been filed by the plaintiff by creating facts. Hence, prays to dismiss the suit. 3.2. The Trial Court, based on the aforementioned pleadings, framed the following issues: 1) Whether the plaintiff proves that he is the owner of the suit schedule property? - 7 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 2) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property? 3) Whether the plaintiff proves that the alleged interference by the defendants? 4) Whether the plaintiff is entitled for the relief as sought for? 5) What order or decree? 3.3. The plaintiff, to substantiate his case, examined himself as PW.1, examined, two witnesses as PW.2 and PW.3 and 3 documents were marked as Exs.P1 to P3. In rebuttal, defendant No.2 was examined as DW.1, and no documents were marked. The trial Court, after recording the evidence of the parties, hearing both sides, and after assessing the oral and documentary evidence, answered issue Nos.1 and 3 in the negative, issue No.2 in the affirmative, issue No.4 as not entitled and issue No.5 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 02.08.2004. 3.4. The plaintiff, aggrieved by the dismissal of the suit in O.S.No.200/2001, preferred an appeal in - 8 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 R.A.No.53/2004 on the file of the learned Civil Judge (Sr. Dn.) Challakere, along with an application for the condonation of delay of 1 month 25 days in filing the appeal, and also filed an application under Order 41 Rule 27 of CPC for the production of additional evidence. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether delay in filing the appeal is to be condoned? 2) Whether additional evidence is to be received at this stage? 3) Whether findings of the trial Court that plaintiff has failed to prove his exclusive ownership is correct? 4) Whether findings of the trial Court that plaintiff has failed to prove interference in enjoyment of the suit schedule property is correct? 5) Whether judgment of the trial Court calls for interference? 6) What order? 3.5. The First Appellate Court, on hearing the parties and reassessing the verbal and documentary evidence, answered point Nos.1, 3 to 5 in the negative, point No.2 in - 9 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 the affirmative, and point No.6 as per the final order. The appeal was dismissed with costs vide judgement dated 15.04.2008. 3.6. The plaintiff, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4. This Court, on 17.03.2010, admitted the appeal to consider the following substantial question of law: “Whether the plaintiff could have been denied the claim over the suit properties, on the footing that it was not exclusively allotted to the plaintiff, when even according to the partition deed, the joint right was in respect of certain items of the property and not all the items of the property, which were allotted to the plaintiff?” 5. This Court, on 22.08.2025, framed additional substantial question of law: “Whether the plaintiff proves that the First Appellate Court was justified in rejecting the application under Section 5 of the Limitation Act, 1963, without assigning any reason?” - 10 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 6. A notice was issued to the respondents. Despite service of notice, they remained unrepresented. 7. Heard the arguments of the learned counsel for the plaintiff. 8. Learned counsel for the plaintiff submits that the plaintiff has shown sufficient cause for not preferring an appeal in time before the First Appellate Court, wherein the First Appellate Court has recorded a finding that the cause shown by the plaintiff in not preferring an appeal within time is not satisfactory. Further, the trial Court has dismissed the suit on the ground that the plaintiff has not produced the partition deed of 1970. He submits that the plaintiff has filed an application for the production of an additional evidence by producing the original partition deed, which go to the root of the case. He submits that the First Appellate Court rejected the application under Section 5 of the Limitation Act, 1963, and the First Appellate Court could not have discussed the merits of the - 11 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 case. Hence, he submits that the First Appellate Court has committed an error in passing the impugned judgment. He submits that the appeal may be allowed, and the matter may remitted to the First Appellate Court for reconsideration. Accordingly, on these grounds, he prays for allowing the appeal. 9. Perused the records, and considered the submissions of learned counsel for the plaintiff. 10. Reg. Additional substantial question of law: The plaintiff filed a suit for a declaration to declare his ownership over the suit schedule property, and a perpetual injunction. It is the case of the plaintiff that the partition was effected in 1970 between him and siblings, and based on the partition effected in 1970, the katha of the suit land was changed in the name of plaintiff and he is paying kandayam on the same. The suit land is irrigated, and the father of the plaintiff buried therein, and also constructed a samadi. The defendants are trying to - 12 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 interfere with the peaceful possession and enjoyment over the suit schedule property. The defendants have no right, title or interest over the suit schedule property. The plaintiff to substantiate his case, examined himself as PW.1, he reiterated the plaint averments in the examination-in-chief and also examined two witnesses as PW.2 and PW.3, and marked 3 documents as Exs.P1 to P3. The trial Court has recorded a finding in para No.12 of its judgment and dismissed the suit of the plaintiff on the ground that the plaintiff without producing the title deeds i.e., the alleged partition deed of 1970, the suit of the plaintiff for a relief of declaration of title is not maintainable. The plaintiff, aggrieved by the dismissal of the suit, preferred an appeal in R.A.No.53/2004 on the file of the learned Civil Judge (Sr. Dn.), Challakere. The plaintiff filed an application under Section 5 of the Limitation Act, 1963 aong with appeal. In support of an application, the plaintiff filed an affidavit, stating that he was unable to pay the Court fee because of the findancial - 13 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 difficulties and a draught condition in village. The plaintiff also filed an application for the production of additional evidence under Order 41 Rule 27 of CPC accompanying to which, the plaintiff has produced the original partition deed executed between the plaintiff and his siblings. The trial Court has dismissed the suit only on the ground that the plaintiff has not produced the original partition deed of 1970. There was delay of 1 month 25 days in filing the first appeal. Admittedly, the suit involves the right of immovable property. The First Appellate Court should have condone the delay in filing the appeal. On the contrary, it has rejected the application filed by the plaintiff, and further, from the perusal of the findings recorded on point No.1, the First Appellate Court has not discussed anything about the cause shown by the plaintiff for filing the first appeal at a belated stage. The First Appellate Court has recorded a finding that if there is a financial crises for the plaintiff, the plaintiff could have approached the Legal Aid Committee and to seek financial assistance to file an - 14 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 appeal well within time. Admittedly, the plaintiff is the villager, and he is not aware about the assistance provided by the Legal Aid Committee. Thus, the First Appellate Court has committed an error in rejecting the application filed under Section 5 of the Limitation Act, 1963, on the ground that the cause shown by the plaintiff in preferring the appeal at a belated stage is not acceptable, is arbitrary and erroneous. Further, the First Appellate Court did not consider the fact that the trial Court has dismissed the suit only on the ground of non-production of the partition deed of 1970. The plaintiff has filed an application for the production of additional evidence by producing the partition deed of 1970, which go to the root of the case. Further, when the First Appellate Court rejected the application under Section 5 of the Limitation Act, the First Appellate Court could not have discussed the appeal on merits. The First Appellate Court discussed the case on merits in point No.4. - 15 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 11. The First Appellate Court committed an error in discussing the case on merits. Thus, the judgment and decree passed by the First Appellate Court is arbitrary and erroneous. 12. When an application is filed for the condonation of delay, the Appellate Court should be liberal in allowing the application, in view of the proposition of law laid down by the Hon'ble Apex Court in the case of COLLECTOR LAND ACQUISITION, ANANTNAG & ANOTHER VS. MST. KATIJI & ORS. reported in (2013) 3 SCC 66. Thus, the findings recorded by the First Appellate Court in rejecting an application under Section 5 of the Limitation Act is contrary to the proposition of law laid down by the Hon'ble Apex Court in the case Mst. Katiji (Supra). Hence, on these grounds, the impugned judgment is liable to be set aside. In view of the above discussion, this Court is of the opinion that the matter requires reconsideration by the - 16 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 First Appellate Court, and the substantial question of law framed by this Court is on the merits of the case. Hence, the substantial question of law does not arise for consideration at this point of time and the additional substantial question of law is answered in negative holding that the First Appellate Court was not justified in rejecting the application for condonation of delay without assigning any reasons. 13. In view of the aforesaid facts, and circumstances, I proceed to pass the following: ORDER i. The Regular Second Appeal is allowed. ii. The application filed under Section 5 of the Limitation Act is allowed. Delay of 1 month 25 days is condoned. iii. The appeal in R.A.No.53/2004 is restored to its original file. - 17 - HC-KAR NC: 2025:KHC:33022 RSA No. 1714 of 2008 iv. The First Appellate Court is directed to reconsider the application filed by the plaintiff for the production of additional evidence. v. The First Appellate Court is directed to pass the judgment in accordance with law. vi. Office is directed to transmit the records to the First Appellate Court. vii. The First Appellate Court is directed to issue a notice to the parties and thereafter, pass the appropriate judgment. In view of the dismissal of the appeal, pending I.As’ if any, do not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB