- 1 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF APRIL 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100478 OF 2020 (PAR-) BETWEEN: 1. MUTTAPPA S/O. VEERABHADRAPPA SHIRHATTI, AGE: 40 YEARS, OCC: AGRICULTURE, 2. MANJUNATH S/O. VEERABHDRAPPA SHIRHATTI, AGE: 30 YEARS, OCC: AGRICULTURE, BOTH ARE R/O. KONNUR, TQ: NARAGUND, DIST: GADAG-581117. …APPELLANTS (BY SRI. SIDDAPPA SAJJAN, ADVOCATE) AND: 1. VEERABHADRAPPA S/O. SANGAPPA SHIRHATTI, AGE: 73 YEARS, OCCU: AGRICULTURE, R/O. KONNUR, TQ: NARAGUND, DIST: GADAG-581117. 2. ADIVEVVA W/O. VERABHADRAPPA SHIRHATTI, AGE: 65 YEARS, OCC: HOUSEHOLD WORK, R/O. KONNUR, TQ: NARAGUND, DIST: GADAG-581117. 3. LAXMAVVA W/O. KARIYAPPA BARKER, AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/O. TAMINAL, TQ: BADAMI, DIST: BAGALAKOTE, BAGALAKOTE-587201, SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 4. MALLAWWA @ GIRIJAVVA W/O. ASHOK MEGALMANI, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O. BUDIHAL, TQ: BADAMI, DIST: BAGALAKOTE, BAGALAKOTE-587201, 5. GEETA W/O. VENKAPPA BARKER, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O. TULSIGERI, TQ: BADAMI, DIST: BAGALAKOTE, BAGALAKOTE-587201, 6. SAVITRI D/O. VEERABHADRAPPA SHIRHATTI, AGE: 25 YEARS, OCCU: STUDENT, R/O. KONNUR, TQ: NARAGUND, DIST: GADAG-581118. 7. KAMALAWWA W/O. SHANKARAPPA PIDDANNAVAR, AGE: 75 YEARS, OCCU: ARGICULTURE, R/O. HEBBAL, TQ: SHIRHATTI, NOW R/AT: KONNUR, TQ: NARAGUND, DIST: GADAG-581118. …RESPONDENTS (BY SRI. SHIVAKUMAR S. BADAWADAGI & SMT. VAISHALI K. KALADAGI, ADVOCATES FOR R1-R6; SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R7) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET-ASIDE THE ORDER DATED 01.08.2019 ON I.A.NO.1 IN R.A.NO.130/2015 PASSED BY THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, GADAG AND SET ASIDE THE JUDGMENT AND DECREE DATED 27.04.2015 PASSED BY THE COURT CIVIL JUDGE AT NARGUND IN O.S. NO.92/2009, AND ALLOW THE O.S.NO.92/2009, IN THE INTEREST OF JUSTICE. - 3 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is filed by the plaintiffs challenging the judgment and decree dated 01.08.2019 passed in RA No.130 of 2015 on the file of the Additional Senior Civil Judge Gadag, (for short, ‘First Appellate Court’) dismissing the appeal and confirming the judgment and decree dated 27.04.2015 passed in OS No.92 of 2009 on the file of the Civil Judge, Nargund, (for short, ‘Trial Court’) dismissing the suit of the plaintiffs. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The facts in nutshell are that, the plaintiffs have filed suit in OS No.92 of 2009 against the defendants, seeking relief of partition and separate possession and - 4 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 the said suit came to be dismissed by the Trial Court vide judgment and decree dated 27.04.2015. 4. Being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA No.130 of 2015 on the file of First Appellate Court and the said appeal was resisted by the defendants. The said appeal was filed belatedly and as such, the appellants therein have filed IA No.1 under Section 5 of Limitation Act. The First Appellate Court, after considering the same, by its order dated 01.08.2019 dismissed the IA No.1 and consequently, dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.92 of 2009. Being aggrieved by the same, the appellants have preferred this Regular Second Appeal under Section 100 of CPC. 5. This court vide order 02.04.2025 formulated the following substantial question of law: - 5 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 i. Whether the reasons assigned by the appellant herein in IA No.1 filed under Section 5 of the Limitation Act, requires re- consideration in this appeal ? 6. I have heard Sri. Siddappa S. Sajjan, learned counsel for the appellants and Sri. Shivakumar S. Badaward, learned counsel appearing for the respondents. 7. Sri. Siddappa S. Sajjan, learned counsel for the appellants contended that there is delay of 193 days in filing the appeal and the First Appellate Court being a last court for appreciating the facts, ought to have liberally accepted the reasons assigned by the appellants and accordingly, sought for interference of this court. 8. Per contra, Sri. Shivakuamr S. Badaward, learned counsel for the respondents sought for dismissal of - 6 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 the appeal on the ground that there is no perversity in the impugned order passed by the First Appellate Court. 9. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by the both the courts below. Plaintiffs have filed suit seeking relief of partition and separate possession in respect of suit schedule property. The Trial Court dismissed the suit by its judgment and decree dated 27.04.2015. The plaintiffs have preferred RA No.130 of 2015. There was a delay of 193 days in filing the appeal. The appellants herein have adduced evidence through PW1 and PW2, and deposed that on account of ill-health and death of the brother of PW1-Tulasigeri (plaintiff No.2), the appeal was filed belatedly. Taking into consideration, the nature of the suit is for seeking partition and separate possession and one of the - 7 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 plaintiffs-plaintiff No.2 (Tulasigeri) died, on 24.11.2015 and therefore, the appellants have placed sufficient material under Section 5 of Limitation Act to condone the delay of 193 days in filing the appeal. It is also to be noted that the nature of the suit is for partition and separate possession and the appeal under Section 96 of CPC before the First Appellate Court is the last court for fact finding. In that view of the matter, taking into consideration the declaration of law made by the Hon'ble Supreme Court in the case of Moolchandra vs. Union of India and another reported in 2025 1 SCC 625 wherein, it is held that, if the sufficient cause has been shown seeking liberal construction of Section 5 of Limitation Act, the delay is to be condoned. Accordingly, I find force in the submission made by the learned counsel for the appellants and the substantial question of law framed above favours the appellants herein. Therefore, I am - 8 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 of the view that, it is fit case to remand the matter to the First Appellate Court to provide fair opportunity to both the sides. In the result, I pass the following: ORDER i) The Regular Second Appeal is allowed; ii) Order dated 01.08.2019 in RA No.130 of 2015 on the file of Additional Senior Civil Judge, Gadag, is set aside and accordingly, IA No.1 filed under Section 5 of Limitation Act before the First Appellate Court is allowed and the matter is remitted to the First Appellate Court for fresh consideration in accordance with law. iii) In order to avoid further delay in the matter and as the parties are represented through their advocates, the parties are directed to appear before the First Appellate Court on 04.06.2025 at 11 a.m., without waiting for - 9 - NC: 2025:KHC-D:6594 RSA No. 100478 of 2020 further notice in this regard. On their appearance, the First Appellate Court is requested to expedite the hearing and conclude the same in accordance with law. Sd/- (E.S.INDIRESH) JUDGE SB CT-MCK List No.: 1 Sl No.: 35