- 1 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100061 OF 2022 (PAR/POS-) BETWEEN: MAHADEV NAIKAPPA KEMMANAKOL @ WALAD AGE. 54 YEARS, OCC. AGRICULTURE, R/O. YARAGANAVI, TQ. SAUNDATTI, DISTRICT. BELAGAVI – 591126. …APPELLANT (BY SRI. SHARAD M. PATIL, ADVOCATE) AND: 1. SMT. LAKKAVVA W/O. KENCHAPPA CHAKAKI, AGE. 52 YEARS, OCC. AGRICULTURE, R/O. YARAGANAVI, TQ. SAUNDATTI, DISTRICT. BELAGAVI. NOW R/O AT TALLUR, TQ: SAUNDATTI – 591126. 2. SMT. GANGAVVA W/O. NINGAPPA CHAKAKI, AGE. 54 YEARS, OCC. AGRICULTURE, R/O. TALLUR, TQ. SAUNDATTI, DISTRICT. BELAGAVI – 591126. 3. SRI. SURESH S/O. NAYAKAPPA KEMMANAKOL @ WALAD, AGE. 46 YEARS, OCC. AGRICULTURE, R/O. YARAGANAVI, TQ. SAUNDATTI, DISTRICT. BELAGAVI. …RESPONDENTS (BY SRI. RAJASHEKHAR R. GUNJALLI, ADVOCATE FOR R1; SRI. MAHESH N. KULKARNII AND SRI. TEJAPAL A. KAMAL, ADVOCATES FOR R2 AND R3) ------ V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.17 11:52:35 +0530 - 2 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING THAT THE ORDER DATED 01.07.2020 PASSED BY THE SENIOR CIVIL JUDGE SAUNDATTI AT SAUNDATTI ON I.A.NO.1 IN R.A.NO.8/2019 AND THE JUDGMENT AND DECREE DATED 19.03.2016 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, SAUNDATTI IN O.S.NO.182/2013, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL WITH THE COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by defendant No.1 challenging the judgment and decree dated 01.07.2020 in R.A.No.8/2019 on the file of the Senior Civil Judge, Saundatti1 dismissing the appeal on the ground of delay and laches and as such confirming the judgment and decree dated 19.03.2016 in O.S.No.182/2013 on the file of the Additional Civil Judge and JMFC at Saundatti2 decreeing the suit of the plaintiff. 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the plaintiff and defendants No.1 to 3 are the children of Naikappa and Ningawwa. It is further stated in the plaint that the suit schedule properties are the ancestral properties of the father of the plaintiff and as such the plaintiff is entitled for 1/4th share in the suit schedule properties in O.S.No.182/2013. 4. On service of notice, defendant No.1 represented through an advocate, but failed to contest the matter on merits. Defendant No.2 was placed ex-parte and defendant No.3 has filed written statement, admitting the relationship between the parties and submitted that the defendant No.3 is also entitled for share in the suit schedule properties. 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to - 4 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 establish their case, the plaintiff examined herself as PW.1 and produced 13 documents and same were marked as Exs.P.1 to P.13. The defendant No.3 was examined as DW.1. 6. The Trial Court after considering the material on record, by its judgment and decree dated 19.03.2016 decreed the suit holding that the plaintiff is entitled for 1/8th share in the suit schedule properties. Feeling aggrieved by the same, defendant No.1 has preferred R.A.No.8/2019 challenging the judgment and decree passed by the Trial Court. Since there is delay in filing the appeal, defendant No.1/appellant herein has filed an application under Section 5 of the Limitation Act and said application was heard and dismissed by the First Appellate Court as per the judgment and decree dated 01.07.2020. Feeling aggrieved by the same, the defendant No.1/appellant herein has presented this Regular Second Appeal. - 5 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 7. I have heard Sri.Sharad M Patil, learned counsel appearing for the appellant and Sri.Rajashekhar R Gunjalli, learned counsel appearing for the respondent No.1 and Sri.Mahesh N Kulkarni, learned counsel appearing for the respondent Nos.2 and 3. 8. Learned counsel appearing for the appellant submitted that the reasons assigned by defendant No.1 for delay in filing the appeal was not considered by the First Appellate Court liberally and accordingly sought for interference of this Court. 9. Per contra, learned counsel appearing for the respondents sought to justify the impugned order passed by the First Appellate Court and contended that the reasons assigned by defendant No.1 was not bonafide and accordingly sought to justify the judgment and decree passed by the First Appellate Court. 10. In the light of the submission made by the learned counsel appearing for the parties and in order to - 6 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 ascertain the relationship between the parties, the genealogy tree of the parties is as under: Naikappa (Dead) Ningawwa (Dead) Mahadev Gangawwa Lakkawwa Suresh (D1) (D2) (Plf) (D3) 11. Admittedly, the plaintiff has sought for 1/4th share in the suit schedule properties and defendant No.1 entered appearance however not contested the matter on merits. Defendant No.2 was placed ex-parte. Defendant No.3 filed written statement stating that defendant No.3 is entitled for share in the suit schedule properties. The Trial Court has passed the judgment and decree dated 19.03.2016 holding that the plaintiff is entitled for 1/8th share in the suit schedule properties. But taking into consideration the declaration of law made by the Hon’ble Supreme Court in the case of Vineeta Sharma vs. - 7 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 Rakesh Sharma reported in AIR 2020 SC 3717, the daughters in the co-parcernary property are also entitled for equal share as that of a son and accordingly plaintiff is entitled for 1/4th share in the suit schedule properties as the defendants have not contested the matter that the suit schedule properties are not the joint family properties nor the self-acquired properties of their father. Therefore, the shares allotted by the Trial Court is to be modified in the light of the judgment of the Hon’ble Supreme Court. 12. It is also submitted by the learned counsel appearing for the parties by producing the certified copy of the order dated 06.11.2024 by the Trial Court in FDP No.4/2019 wherein the Trial Court rightly arrived at a conclusion that the properties have devolved amongst the parties by allocating 1/4th share in the suit schedule properties. Such order cannot be disputed and same is in accordance with the judgment of the Hon’ble Supreme Court in the case of Vineeta Sharma supra, however, taking into consideration the arguments advanced by the - 8 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 learned counsel appearing for the appellant herein that the First Appellate Court has dismissed I.A.No.1 filed under Section 5 of the Limitation Act, I have carefully examined the reasons assigned by the appellant herein in the affidavit accompanying the application filed before the First Appellate Court. Taking into consideration the reasons assigned by defendant No.1 cannot be accepted as a sufficient cause and bonafide reasons have not been given in the affidavit accompanying the application and as such following the declaration of law made by the Hon’ble Supreme Court in the case of Mool Chandra vs. Union of India and Another reported in (2025) 1 SCC 625, I am of the view that the impugned order passed by the First Appellate Court is just and proper as the appellant herein has not given appropriate reason for condonation of delay of nearly 4 years in filing the appeal and accordingly the appeal requires to be dismissed by confirming the judgment and decree passed by the First Appellate Court in R.A.No.8/2019 and also the shares of the parties is modified in terms of the declaration of law made by - 9 - NC: 2025:KHC-D:2713 RSA No. 100061 of 2022 Hon’ble Supreme Court in the case of Vineeta Sharma supra. Sd/- (E.S.INDIRESH) JUDGE SH CT:ANB List No.: 1 Sl No.: 22