- 1 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100306 OF 2024 (PAR/POS) BETWEEN: BASAVARAJ S/O. GURUPPA VIJAPUR, AGE: 70YEARS, OCC: AGRICULTURE, R/O: BASAVANAL, TQ: SHIGGAON, DIST: HAVERI – 581 126. …APPELLANT (BY SRI. VIJAYENDRA BHIMAKKANAVAR, ADVOCATE) AND: 1. SMT PARVATI @ CHAMPAVATI W/O. KOTRESH VIJAPUR, AGE: 46 YEARS, OCC: HOUSEHOLD WORK, R/O: SHIVAYOGESHWAR NAGAR, HAVERI – 581 110. 2. SMT. VIAJAYALAXMI W/O. BASAVARAJ GIDASAKKANAVAR, DECEASED BY HER LRS. 2A. BASAVARAJ S/O. RAMAPPA GIDASAKKANAVAR, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: HIREHARKUNI, TQ: KUNDAGOL, DIST: DHARWAD – 581 113. 2B. KUMARI IRAMMA D/O. BASAVARAJA GIDASAKKANAVAR, AGE: 16 YEARS, OCC: STUDENT, R/O: HIREHARKUNI, TQ: KUNDAGOL, DIST: DHARWAD – 581 113. SINCE MINOR REPRESENTED BY HER Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 NATURAL FATHER RESPONDENT NO. 2A, BASAVARAJ S/O. RAMAPPA GIDASAKKANAVAR. 2C. KUMAR PRAMOD S/O. BASAVARAJ GIDASAKKANAVAR, AGE: 14 YEARS, OCC: STUDENT, R/O: HIREHARKUNI, TQ: KUNDAGOL, DIST: DHARWAD – 581,113. SINCE MINOR REPRESENTED BY HER NATURAL FATHER RESPONDENT NO. 2A BASAVARAJ S/O. RAMAPPA GIDASAKKANAVAR. 3. BANGARESHWARI D/O. GURUSIDDAPPA VIJAPUR, AGE: 36 YEARS, OCC: STUDENT, R/O: SHIGGAON, DIST: HAVERI - 581 205. GURUSIDDAPPA S/O. CHANNABASAPPA VIJAPUR DIED BY HIS LRS 4A. SMT. SHANTAVVA W/O. GURUSIDDAPPA VIJAPUR, AGE: 66 YEARS, OCC: HOUSEHOLD WORK, R/O: BASAVANAL, TQ: SHIGGAON, DIST: HAVERI – 581 126. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING TO, SET ASIDE THE JUDGMENT AND DECREE DATED 09.03.2022 PASSED BY THE COURT OF PRINCIPAL FAMILY JUDGE, HAVERI IN R.A.NO. 12/2022 IN DISMISSING TE APPEAL AS TIME BARRED AND SO ALSO AGGRIEVED BY THE JUDGMENT AND DECREE DATED 20.03.2012 IN O.S.NO.35/2011 IN PASSED BY THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, HAVERI IN PARTLY DECREEING THE SUIT OF THE PLAINTIFF AND DISMISS THE SUIT OF - 3 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 THE PLAINTIFFS FOR PARTITION AND SEPARATE POSSESSION, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the defendant No.4 being aggrieved by the judgment and decree dated 20.03.2012 passed in OS No.35/2011 on the file of Additional Senior Civil Judge, Haveri (for short, ‘Trial Court’) by which suit filed by the plaintiff/respondent No.1 herein for partition and separate possession of family property was partly decreed. Aggrieved by the same, the appellant herein preferred a regular appeal in RA No.12/2022 before the Family Court, Haveri (for short, ‘First Appellate Court’), which is dismissed by the judgement and order dated 09.03.2023 on the ground of delay of 2191 days in filing the same by confirming the judgment and decree passed by the Trial Court. - 4 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 2. Being aggrieved by the same, the appellant/defendant No.4 has filed the present appeal. There is a delay of 314 days in filing the present appeal. 3. Appellant/defendant No.4 claims to be an agreement holder in respect of the suit schedule properties from defendant No.1. The above suit is filed by plaintiff – Parvati contending that defendant No.1- Gurushiddappa is the father of plaintiff and defendant Nos.2 and 3. That the suit schedule properties are the joint family ancestral properties. That defendant No.1 who was addicted to bad vices was mismanaging the joint family properties by entering into agreements of sale depriving the members of the family of their legitimate share, right, title and interest. Hence, the suit. 4. Defendant Nos.1 to 3 filed written statement admitting the plaint averments. Defendant No.4 filed written statement contending that he purchased item No.2 of the suit schedule properties from defendant No.1 for valuable sale consideration of Rs.5,35,000/- of which he has paid Rs.4,95,000/- to defendant No.1. - 5 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 5. Based on the pleadings, the Trial Court framed the following issues and additional issues for its consideration: 1. Whether plaintiff proves that, herself and defendants are joint owner and joint possessor of suit schedule properties? 2. Whether plaintiff proves that, the deft.No.1 is addicted with bad habits and wasting the family properties? 3. Whether deft.No.1 proves that, the plaintiff has not shown proper description of suit schedule properties? 4. Whether deft.No.1 proves that, the suit of the plaintiff is bad for non-joinder of necessary parties? 5. Whether deft.No.1 proves that, he was agreed to sell the suit land R.S.No.48/2B/2 measuring 2 acre 33 gunta of village Basavanal of family and legal necessity? 6. Whether deft.No.1 proves that, the plaintiff has paid insufficient Court fee? 7. Whether plaintiff is entitle the relief of partition and separate possession of suit schedule properties? 8. Whether plaintiff is entitle the 1/4th share in suit schedule properties? 9. What order or decree? - 6 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 ADDL ISSUES 1. Whether deft.No.4 proves that, deft.No.1 was agreed to sell the suit land R.S.No.48/2B/2 measuring 3 acre 33 gunta for ₹5,45,000/- for family and legal necessity? 2. Whether deft.No.4 proves that, deft.No.1 to 3 in collusion of plaintiff got filed the instant suit with an intention to cheat him? 6. After recording the evidence and on appreciation of the same, the Trial Court answered issue Nos.1 and 7 in the affirmative and issue Nos.2 to 7, additional issue No.1 answered in negative and issue No.8 partly in the affirmative and consequently, decreed the suit in part declaring that the plaintiff being entitled for 1/5th share in suit schedule B-1 to B-3 properties. 7. Being aggrieved by the same, defendant No.4 who is the purchaser of item No.2 of the suit schedule properties preferred an appeal in RA No.12/2022. There was a delay of 2191 days in filing the said appeal. The First Appellate Court framed the following points for its consideration: - 7 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 1. Whether the defendant No.4 is entitled for condonation of delay of 2191 days in preferring the appeal, as sought for in I.A.No.1? 2. What order? 8. On re-appreciation of the reasons found that the defendant No.4/appellant herein had not given acceptable reasons explaining sufficient cause for delay in filing appeal and accordingly, dismissed the application seeking condonation of delay consequently, also dismissed the appeal. Being aggrieved by the same, the present appeal is filed. Even in this appeal there is a delay of 314 days. 9. Learned counsel for the appellant/defendant No.4 submits that the appellant herein who had entered into agreement with defendant No.1 intending to purchase item No.2 of the suit schedule properties had filed suit for Specific Performance in OS No.50/2013 which was dismissed. As against which, he preferred regular appeal in RA No.17/2015 which was also dismissed. As against which, he has preferred a Regular Second Appeal in RSA No.100991/2016 which is pending consideration before - 8 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 this Court. Hence, he makes fervent request to tag this appeal along with the said appeal. The said request cannot be considered for the following reasons: 10. Admittedly present suit is one for partition. Defendant No.4/appellant herein who claims to have entered into agreement to purchase item No.2 of the suit schedule properties with defendant No.1, is stated to have initiated the proceedings seeking specific performance of the said agreement which is pending consideration in RSA No.100991/2016 before this Court. 11. As regards the suit for partition filed by the plaintiffs, defendant No.4/appellant is a stranger to the family of the plaintiffs and he cannot to be heard to say with regard to the affairs of the family of plaintiffs and defendant Nos.1 to 3 except being entitled to claim his rights to the extent of share that may be allotted in favour of his vendor subject to he succeeding in the aforesaid suit filed by him seeking specific performance. Therefore defendant No.4/appellant cannot question the decree of partition of the family properties. - 9 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 12. That apart, records reveal that the appellant has been negligent throughout in pursuing his remedy. In that he filed the regular appeal after lapse of 2191 days of delay. The First Appellate Court has found the reasons assigned seeking condonation of delay of 2191 days as not satisfactory and accordingly rejected the application by the impugned order. 13. It is settled position of law that power to condone the delay is discretionary and the same cannot be claimed as a matter of right. Further, in the absence of making out any ground of irregularity or illegality in exercising the said discretionary power, normally appellate courts would restrain itself from interfering with such orders. 14. In the instant case, no grounds are made out warranting interference with the order passed by the First Appellate Court. 15. As regards the delay in filing the present appeal, the affidavit accompanying the application in I.A.No.1/2024 would reveal that he was engaged in - 10 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 agricultural operation which he had apparently begin in the last week of May-2023 and he was occupied in agriculture operations. In addition, he was also advised by his doctor to take rest on account of his old age ailments and he was not able to contact his lawyer therefore, there is a delay. Except this no other reason is provided. The reasons assigned in the present application seeking condonation of delay of 314 days in filing the present appeal read in the light of the order of rejection of the appeal by the First Appellate Court declining to condone the delay of 2191 days, would not evince the credibility of the reasons and the bona fides of the appellant. 16. As already noted the appellant claiming to be an agreement holder of a portion of joint family properties cannot challenge the decree passed in favour of joint family members. Besides, the First Appellate Court having dismissing the appeal on the ground of delay, the same is resisted by him by filing the present appeal which is also filed after the delay of 314 days. Since no grounds are made out warranting interference, no substantial question - 11 - HC-KAR NC: 2025:KHC-D:8041 RSA No. 100306 of 2024 of law would therefore arise for consideration. Accordingly, the appeal is dismissed. 17. Pending applications, if any, are disposed off accordingly. Sd/- (M.G.S. KAMAL) JUDGE SMM/ List No.: 1 Sl No.: 52