- 1 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF JULY 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100365 OF 2020 (DEC/INJ) BETWEEN: HANUMAPPA S/O. BHARAMAPPA SANGAPUR, AGE: 68 YEARS, OCC: AGRICULTURE, R/O: CHIKKA BEEDANAL – 583 236, TQ: YELBURGA, DIST: KOPPAL. …APPELLANT (BY SRI. HANUMESH DESAI, ADVOCATE FOR SRI. NEELENDRA D. GUNDE, ADVOCATE) AND: 1. SMT.THIPPAVVA W/O. HANUMAPPA GADDI, AGE: 68 YEARS, OCC: AGRICULTURIST, R/O: CHIKKA BEEDANAL – 583 236, TQ : YELBURGA, DIST: KOPPAL. 2. MAHADEVAMMA W/O. LATE SANNA HANUMAPPA SANGAPUR, AGE: 48 YEARS, OCC: HOUSEHOLD. 3. RATNAWWA D/O. LATE SANNA HANUMAPPA SANGAPUR. AGE: 38 YEARS, OCC: HOUSEHOLD. 4. MANJAWWA D/O. LATE SANNA HANUMAPPA SANGAPUR, Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 AGE: 33 YEARS, OCC: HOUSEHOLD. 5. RENUKAVV D/O LATE SANNA HANUMAPPA SANGAPUR, AGE: 31 YEARS, OCC: HOUSEHOLD, 6. SHYAVAWWA D/O. LATE SANNA HANUMAPPA SANGAPUR, AGE: 29 YEARS, OCC: NOT KNOWN. 7. REKAVVA D/O. LATE SANNA HANUMAPPA SANGAPUR, AGE: 23 YEARS, OCC: NOT KNOWN. 8. BHIMAWWA D/O. LATE SANNA HANUMAPPA SANGAPUR AGE: 22 YEARS, OCC: NOT KNOWN, RESPONDENT NOS. 2 TO 7 ARE R/O CHIKKA BEEDANAL-583 236. TQ: YELBURGA, DIST: KOPPAL. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE 1908 PRAYING TO SET ASIDE ORDER DATED 29.01.2020 PASSED ON I.A.NO.1 IN R.A.NO.14/2017 ON THE FILE OF THE PRL. DISTRICT JUDGE, KOPPAL BY CONFIRMING THE JUDGMENT AND DECREE DATED 28.02.2005 IN O.S.NO.39/1998 ON THE FILE OF THE CIVIL JUDGE (SR. DVN), AT KOPPAL AND ALLOW THE APPEAL WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC., THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by defendant No.1 being aggrieved by the judgment and decree dated 28.02.2005 passed in O.S.No.39/1998 on the file of the Civil Judge (Sr.Dn.), Koppal (Trial Court), by which the suit of the plaintiff for declaration and injunction was decreed, and against the judgment and order dated 29.01.2020 passed in R.A.No.14/2017 on the file of Principal District Judge, Koppal (First Appellate Court), by which the First Appellate Court declining to condone the delay of 11 years 37 days in preferring the said appeal, dismissed the same as barred by limitation. 2. The above suit in O.S.No.39/1998 is filed by the plaintiff Smt.Tippawwa W/o one Hanumappa Gaddi contending inter alia that she is the owner in possession of the suit property having inherited the same from her husband. That her name has been mutated in the revenue records and she has been paying the land revenue - 4 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 regularly and she has been issued with Krishi passbook from the revenue department. That the defendants are the owners of adjacent lands situated on the eastern and western side the suit properties which were purchased by them about 5-6 years ago. That the land of the plaintiff measuring 3 acres 17 guntas situated between the lands of the defendants. That the defendants have started to interfering with the possession of the plaintiff alleging that the plaintiff had encroached upon their lands, thereby they denied the title of the plaintiff constraining her to file the above suit for declaration and injunction. 3. Defendant No.1 filed his written statement. Defendant No.2 adopted the same. The description of the suit property is denied as incorrect, however, it is admitted that the lands of the defendants are situated adjacent to the land of the plaintiff. That they purchased their lands in Sy.Nos.67/a/e and 69 and 70/2 under registered deed of sale and are in possession of the same. It is contended that there are bunds between the land of - 5 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 the plaintiff and the lands of the defendants. That the plaintiff has encroached on the lands of the defendants. That survey was conducted in terms of which the lands of the parties have been demarcated. That the plaintiff having encroached upon the lands of the defendants has filed the suit for declaration, which is not maintainable. Hence, sought for dismissal of the suit. 4. The Trial Court framed the following issues for its consideration. “ISSUES 1. Does plaintiff proves her title to the suit schedule property? 2. Does plaintiff prove her lawful possession of the suit property as on the date of suit? 3. Whether the alleged interference is proved? 4. What order and decree? Addl. Issues 1. Whether the defendants prove that this court has no pecuniary jurisdiction to try this suit? 5. Plaintiff examined herself as PW.1 and exhibited 5 documents marked as Ex.P.1 to P.5. Defendant No.1 - 6 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 examined himself as DW.1 and exhibited 2 documents marked as Ex.D.1 and D.2. The Trial Court answered issue No.1, 2 and 3 in the affirmative and additional issue No.1 in the negative, consequently decreed the suit. 6. Being aggrieved by the aforesaid judgement and decree, the defendant No.1 filed R.A.No.14/2017 after lapse of 11 years 37 days. The said appeal is accompanied by an application in I.A.No.1 under Section 5 of the Limitation Act. The First Appellate Court framed the following points for its consideration: “POINTS 1. Whether the appellant/original defendant No. 1 proves that, he was prevented by sufficient cause in filing this regular appeal beyond the period of limitation prescribed by law and the delay caused in preferring this appeal of 11 years 37 days deserves to be condoned and further appellant/defendant No. 1 shows any sufficient cause within the meaning of section 5 of Limitation Act to condone this inordinate delay caused in preferring this appeal and I.A. No. I filed by him in the noted appeal deserves to be considered and allowed? 2. What Order?” 7. 2. What Order?” 7. The First Appellate Court recorded evidence of the appellant on the point of delay and by the impugned - 7 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 judgment and decree dismissed the said application filed under Section 5 of the Limitation Act and consequently dismissed the appeal as the same having been barred by limitation. Hence, the present appeal. 8. Learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal, submitted that the First Appellate Court ought not to have rejected the application seeking condonation of delay. There was no occasion for the appellant to have known about the decree passed in the suit, inasmuch as the counsel who was engaged by the defendants had passed away and it was not brought to their knowledge. He submits that the evidence led in by the parties on the said application would reveal the appellant/defendant had given sufficient ground and cause for delay in filing appeal. That mere technicality of limitation shall not deprive the appellant of his statutory rights. Hence, he submits substantial question of law would therefore arise for consideration. - 8 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 9. Heard. Perused the records. 10. The suit of the plaintiff is seeking declaration and injunction in respect of land bearing Sy.No.68 measuring 3 acres 17 guntas of Honnunsi village, Yelburga Taluk which is bounded on the East by: land belonging to defendants, West by: land belonging to defendants, North by: land belonging to Parashurama and South by: land belonging to Somappa. 11. It is contended by the plaintiff that she inherited the said property through her husband namely Hanumappa Gadi. Defendants in the written statement have not denied the right, title and entitlement of the plaintiff. The only contention raised by the defendants is that the plaintiff has encroached upon their properties and claiming right, title and interest in excess of her entitlement of 3 acres 17 guntas. The defendants have though claimed the plaintiff has encroached upon their portion of the land, have not lead any evidence in this regard. The Trial Court taking note of these specific - 9 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 contentions and the admission by the defendants of plaintiff being the owner of 3 acres 17 guntas of land within the boundaries mentioned therein, decreed the suit. 12. Regular appeal is filed by defendant No.1 against the judgment and decree of the trial Court after 11 years 37 days of delay. An application in I.A.No.1 was filed under Section 5 of the Limitation Act. The only ground urged in the application is that their counsel Sri.M.M. Jalihal had passed away, as such defendant No.1 was neither able to get the information nor the file, however, he obtained the file from his junior and thereafter filed the appeal before the First Appellate Court. The plaintiff in her objection to the said application had contended that the counsel Sri.M.M. Jalihal had passed away during the year 2016-17 just before filing of the first appeal, as such the ground urged by the defendant No.1 was untenable. Hence, sought for rejection of the application. Evidence on the said application has been recorded by the First Appellate Court. - 10 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 13. The First Appellate Court on re-appreciation of the contentions urged in the application seeking condonation of delay and the evidence led thereon, has come to the conclusion that the only ground urged by the defendant No.1 regarding delay in filing appeal is the death of Sri.M.M. Jalihal, which has not been proved. It has taken into consideration that the defendant No.1 has not even given the date of death of said Sri.M.M. Jalihal and did not produce any material evidence in this regard. It has also taken into consideration that defendant No.1 has not given the name of the junior of said Sri.M.M. Jalihal from whom he has taken the file and date of taking the file. The First Appellate Court has also gone through the order sheet of the trial Court and noted the dates namely 02.02.2005, 07.02.2005 and 09.02.2005 on which the counsel for defendants had addressed his arguments and matter was disposed of, thereafter. It has also taken into consideration the admission made by appellant and witness regarding he persistently following up the matter with Sri.M.M. Jalihal during the pendency of trial - 11 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 proceedings and he appearing during all the dates that were given by him. Taking note of this active participation of the defendants during the trial and his conspicuous silence for over 11 years 37 days after the passing of the decree and in the absence of defendant No.1 providing any sufficient cause for the delay in filing appeal, the First Appellate Court has rejected the application. 14. Settled position of law being that sufficient cause contemplated under Section 5 of the Limitation Act has to be with reference to the reasons for not filing the appeal within the period prescribed for limitation and for the subsequent days. Though the delay in filing appeal is required to be considered liberally, the same in any case cannot be construed to defeat the rights which have accrued to the other party and in favour of the party who is in deep slumber. Except giving the reason of death of said Sri.M.M. Jalihal without giving the date of his death, nothing has been whispered in the application. Same under any circumstances cannot be considered as - 12 - HC-KAR NC: 2025:KHC-D:8438 RSA No. 100365 of 2020 sufficient cause to condone the delay of 11 years 37 days in filing the appeal. 15. Rejection of application under the circumstances by the First Appellate Court to condone the inordinate delay of after 11 years 37 days cannot be held to be irregular or illegal. Exercising the discretionary power by the First Appellate Court in the facts and circumstances of the case do not warrant any interference. No substantial question of law would therefore arise for consideration. 16. Hence, the appeal is dismissed. Sd/- (M.G.S. KAMAL) JUDGE SH/CT-ASC List No.: 1 Sl No.: 5