- 1 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 101052 OF 2022 (FDP-) BETWEEN: 1. SMT. KONTEVVA W/O. SHIVAPPA HUILAGOL, SINCE DECEASED BY LEGAL REPRESENTATIVES, SRI. SHIVAPPA S/O. VEERAPPA HUILAGOL, SINCE DECEASED BY LEGAL REPRESENTATIVES, 1. SMT. JAYAVVA W/O. PRABHU METI, AGE: 50 YEARS, OCC: HOUSEHOLD WORK, R/AT. KOLIWAD, TQ: HUBBALLI, DIST: DHARWAD. 2. SRI. GADIGEPPA S/O. SHIVAPPA HILAGOL, AGE: 46 YEARS, OCC: AGRICULTURE, R/AT. SHGGAON, TQ: SIGGAON, DIST: HAVERI. 3. KUMARI LAXMAVVA W/O. BASAVARAJ TEGGINAHALLI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. BHAIRIDEVARAKOPPA, TQ: HUBBALLI, DIST: HAVERI. 4. SRI. MANJUNATH S/O. SHIVAPPA HILAGOL, AGE: 28 YERS, OCC: AGRICULTUE, R/AT. SHIGGAON, HULAGUR ROAD, TQ: SIGGAON, DIST: HAVERI. …APPELLANTS (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE) AND: 1. SRI. NINGAPPA S/O. NEELLAPPA BENAKANAHALLI, AGE: 75 YEARS, OCC: AGRICULTURE, MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 R/AT. CHIKKABENDIGERI, TQ: SHIGGAON, DIST: HAVERI. SINCE DEAD BY HIS LR’S. 1(a) SMT. IRAVVA W/O. NINGAPPA BENAKANAHALLI, AGED ABOUT 68 YEARS, OCC: HOUSEHOLD, RESIDING AT CHIKKABENDIGERI, SHIGGAON, HAVERI DISTRICT. 1(b) SMT. SHAMBAVVA W/O. DEVENDRAPPA BETAGERI, AGED ABOUT 50 YEARS, OCC: AGRICULTURE, RESIDING AT BELAGALLI, SHIGGAON TALUK, HAVERI DISTRICT. 1(c) SMT. SUSAVVA W/O. DEVENDRAPPA BETAGERI, AGED ABOUT 48 YEARS, OCC: AGRICULTURE, RESIDING AT HINDASAGERI, KALAGHATAGI TALUK, DHARWAD DISTRICT. 1(d) UMESH S/O. NINGAPPA BENAKANAHALLI, AGED ABOUT 46 YEARS, OCC: AGRICULTURE, RESIDING AT CHIKKABENDIGERI, SHIGGAON TALUK, HAVERI DISTRICT. 1(e) SMT. LALITHA W/O. SHAMBHULING GADAGI, AGED ABOUT 44 YEARS, OCC: HOUSEHOLD, RESIDING AT GANESH NAGAR, HUBBALLI. 1(f) YALLAPPA S/O. NINGAPPA BENAKANAHALLI, AGED ABOUT 42 YEARS, OCC: AGRICULTURE, RESIDING AT CHIKKABENDIGERI, SHIGGAON, HAVERI DISTRICT. SMT. PARAVVA W/O. GADIGEPPA BINDALAGI, SINCE DECEASED BY HER LRS ARE ALREADY ON RECORD. SMT. NEELAVVA W/O. GADIGEPPA BANNIKOPPA, SINCE DECEASED BY HER LRS ARE ALREADY ON RECORD. - 3 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 SMT. BASAVVA W/O. JUDDAPPA DUNDUR, SINCE DECEASED BY HER LRS. 2. SMT. NAGARATNA @ AVVI D/O. JUDDAPPA DUNDUR, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/AT. SHIGGAON, SHANKARAGOUDAR CHAL, TQ: SHIGGON, DIST: HAVERI. 3. SMT. NANDA W/O. RUDRAPPA HOSAMANI, AGE: 32 YEARS, OCC: HOUSEHOLD WORK, R/AT. RAYNAL, TQ: HUBBALLI, DIST: DHARWAD. 4. SRI. BASAVARAJ S/O. JUDDAPPA DUNDUR, AGE: 30 YEARS, OCC: AGRICULTURE, R/AT. SHANKARAGOUDAR CHALA, SHIGGAON, TQ: SHIGGON, DIST: HAVERI. 5. SRI. SAHADEVAPPA S/O. GADIGEPPA BANNIKOPPA, AGED ABOUT 67 YEARS, OCC: AGRICULTURE, R/AT. SHIGGAON, TQ: SHIGGON, DIST: HAVERI. 6. SRI. VEERABHADRAPPA S/O. GADIGEPPA BANNIKOPPA, AGED ABOUT 70 YEARS, OCC: AGRICULTURE, R/AT. SHIGGAON, TQ: SHIGGON, DIST: HAVERI. SINCE DEAD BY HIS LR’S. 6(a) SMT. KAMALAVVA W/O. VEERABHADRAPPA BANNIKOPPA, AGED ABOUT 60 YEARS, OCC: HOUSEHOLD, RESIDING AT SHIGGAON, HAVERI DISTRICT. 6(b) MANJUNATH S/O. VEERABHADRAPPA BANNIKOPPA, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, RESIDING AT SHIGGAON, HAVERI DISTRICT. 6(c) SMT. ASHWINI @ SHIVALEELA CHANNAPPA BILEBAL, AGED ABOUT 37 YEARS, OCC: AGRICULTURE, - 4 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 RESIDING AT TALRAGHATTA, KUNDAGOL TALUK, DHARWAD DISTRICT. 6(d) SANJEEVA S/O. VEERABHADRAPPA BANNIKOPPA, AGED ABOUT 34 YEARS, OCC: AGRICULTURE, RESIDING AT SHIGGAON, HAVERI DISTRICT. 7. SRI. TAMMANNA @ IRAPPA GADIGEPPA BANNIKOPPA, AGED ABOUT 60 YEARS, OCC: AGRCIUTLURE, R/AT. SHIGGON, DIST: HAVERI. SMT. RUDRAVVA W/O. SHANKRAPPA VANAHALLI, SINCE DECEASED BY HER LRS. 8. SMT. MANJULA W/O. SAHADEVAPPA HORAKERI, AGED ABOUT 78 YEARS, OCC: HOUSEHOLD, R/AT. MUKKAL, TQ: KALAGHATAGI, DIST: DHARWAD. 9. SRI. SANTOSHI S/O. SHANKARAPPA VANAHALLI, AGED ABOUT 28 YEARS, OCC: AGRICULTURE, R/AT. BENDALAGATTI, TQ: KALAGHATAGI, DIST: DHARWAD. 10. SRI. VEERESH S/O. SHANKRAPPA VANAHALLI, AGED ABOUT 25 YEARS, OCC: AGRICULTURE, R/AT. BENDALAGATTI, TQ: KALAGHATAGI, DIST: DHARWAD. - 5 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 11. SMT. MALLAVVA W/O. NEELAPPA BENAKANAHALLI, AGED MAJOR, OCC: AGRICULTURE, R/AT. CHIKKABENDIGERI, TQ: SHIGGAON, DIST: HAVERI. SMT. SAVAKKA D/O. SHIVAPPA HUILGOL, SINCE DECEASED-NO.LRS. 12. SRI. BASAPPA S/O. NEELAPPA BENAKANAHALLI, AGED ABOUT 75 YEARS, OCC: AGRICULTURE, R/AT. CHIKKABENDIGERI, TQ: SHIGGAON, DIST: HAVERI. DEAD BY HIS LR’S 12(a) SMT. ANNAPURNA W/O. BASAPPA BENAKANAHALLI, AGED ABOUT MAJOR, OCC: HOUSEHOLD, 12(b) NEELAPPA S/O. BASAPPA BENAKANAHALLI, AGED ABOUT 45 YEARS, OCC: AGRICULTURE, 12(c) REVANAPPA S/O. BASAPPA BENAKANAHALLI, AGED ABOUT 43 YEARS, OCC: AGRICULTURE, 12(d) PARAMESH S/O. BASAPPA BENAKANAHALLI, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, ALL ARE RESIDING AT CHIKKABENDIGERI, SHIGGAON TALUK, HAVERI DISTRICT. SRI. GADIGEPPA PARAPPA GUNDANNAVAR, SINCE DECEASED BY LR’S. 13. SMT. VINODA W/O. GADIGEPPA GUNDANNAVAR, AGED ABOUT 45 YEARS, OCC: AGRICULTURE, 14. KUMAR SHARATH S/O. GADIGEPPA GUNDANNAVAR, - 6 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 AGED 16 YEARS, OCC: STUDENT, 15. KUMAR PAVAN S/O. GADIGEPPA GUNDANNAVAR, AGED ABOUT 12 YEARS, OCC: STUDENT, ALL ARE R/AT KABANUR, TQ: SHIGGON, DIST: HAVERI, R14 AND 15 ARE MINORS REP. BY THEIR NATURAL GUARDIAN RESPONDENT NO.13. 16. SRI. LOKESH S/O. PARAPPA GUNDANNAVAR, AGED ABOUT 55 YEARS, OCC: AGRICULTURE, R/AT. KABANUR, TQ: SHIGGON, DIST: HAVERI. 17. MOHAMMAD GOUSE S/O. HARUNASHID NAYAK, AGED ABOUT 38 YEARS, OCC: AGRICULTURE, RESIDING AT NAYAK BUILDING, VIDYANAGAR, P.B. ROAD, HAVERI. 18. SHRI GADIGEPPA S/O. SHIVAPPA HUVILGOL, AGED ABOUT 47 YEARS, OCC: AGRICULTURE, RESIDING AT NIRLAGI ONI, SHIGGAON, HAVERI DISTRICT. 19. SHRI MANJAPPA S/O. SHIVAPPA HUVILOL, AGED ABOUT 43 YEARS, OCC: AGRICULTURE, RESIDING AT NIRLAGI ONI, SHIGGAON, HAVERI DISTRICT. 20. SHRI RAJASHEKAR S/O. BASANGOUDA PATIL, AGED ABOUT 48 YEARS, OCC: AGRICULTURE, RESIDING AT CHIKKABEDEGERI, SHIGGAON, HAVERI DISTRICT. 21. SHRI CHANDRASHEKAR S/O. BASANGOUDA PATIL, AGED ABOUT 48 YEARS, OCC: AGRICULTURE, NIRLAGI ONI, SHIGGAON, HAVERI DISTRICT. - 7 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 22. SHRI MADHUMALATI W/O. RAJSHEKAR PATIL, AGED ABOUT 46 YEARS, OCC: AGRICULTURE, RESIDING AT BASAVESHWAR NAGAR, BYADAGI TALUK, HAVERI DISTRICT. 23. SHRI NASHEERAHAMMAD S/O. MADARASAB DODDAMANI, AGED ABOUT 53 YEARS, OCC: AGRICULTURE, RESIDING AT SHIGGAON, HAVERI DISTRICT. 24. SHRI ISAMAIL S/O. HASANSAB MALLADAD, AGED ABOUT 48 YEARS, OCC: AGRICULTURE, RESIDING AT MAKANGALLI, HAVERI TALUK AND DISTRICT. …RESPONDENTS (BY SRI. SUBHASH J. BADDI, ADVOCATE FOR R1(a) & R1(c)-R1(f); SRI. SHIVAKUMAR APARAJ, ADVOCATE FOR R1(b); SRI. SIDDAPPA S. SAJJAN, ADVOCATE FOR R1(A), R1(C)-R1(F); SRI. SHRIKANT T. PATIL, ADVOCATE FOR R12(A-D); SRI. RAJASHEKAR B. HALLI, ADVOCATE FOR R13 & R16; R14 & R15 ARE MINORS REPRESENTED BY R13; SRI. DINESH M. KULKARNI, ADVOCATE FOR IMPLEADING R17; R2-R5, R6(A), R6(B), R6(D), R7, R8-R11-SERVED; R6(C)-HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SETASIDE THE ORDER DATED 3.8.2022 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, SHIGGAON IN R.A. NO.8 OF 2018 ON I.A. NO.I FILED UNDER SECTION 5 OF THE LIMITATION ACT, THEREBY CONFIRMING THE JUDGMENT AND DECREE DATED 17.01.2017 IN F.D.P. NO.2 OF 2008 BY THE CIVIL JUDGE AND JMFC, SHIGGON AND DISMISS THE F.D.P. NO.2 OF 2008 BY ALLOWING THE PRESENT APPEAL WITH COSTS THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH - 8 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 ORAL JUDGMENT 1. This Regular Second Appeal is filed by legal representatives of respondent No.4 challenging order dated 03.08.2022 passed in RA No.8 of 2018 on the file of the Senior Civil Judge and JMFC, Shiggaon, (for short, ‘First Appellate Court’) dismissing the appeal and confirming the judgment and decree dated 17.01.2017 in FDP No.2 of 2008 on the file of the Civil Judge and JMFC, Shiggaon, (for short, ‘Trial Court’) decreeing the suit of the petitioner in part. 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. It is the case of the petitioner in FDP No.2 of 2008 that, OS No.121 of 2007 was filed by the plaintiff therein, seeking 1/10th share in the suit schedule property which came to be decreed on 25.05.2005. Thereafter, the petitioner has preferred FDP No.2 of - 9 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 2008 before the Trial Court, seeking division of properties. 4. After service of summons, the respondents entered appearance and filed detailed written statement denying the averments made with regard to division of properties. 5. Court Commissioner was appointed for division of properties. The Trial Court by order dated 17.01.2017, allowed the petition by accepting the report of the Commissioner in part and accordingly, Final Decree was drawn. Feeling aggrieved by the same, the respondent No.4 has preferred RA No.8 of 2018 before the First Appellate Court, however, there was delay of 303 days in filing the appeal. Hence, IA No.I was filed under Section 5 of Limitation Act, seeking condonation of delay in filing the appeal. The said application was resisted by the respondents therein. The First - 10 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 Appellate Court, after considering the material on record by its order dated 03.08.2022 dismissed IA No.I, consequently, dismissed the appeal. Feeling aggrieved by the same, present second appeal is filed. 6. This Court vide order dated 26.08.2022 framed the following substantial of law: 1. Whether the first appellate Court was justified in dismissing appeal on the ground of delay ? 2. Whether trial Court was justified in allotting entire 42 acres of suit properties to plaintiff based on valuation of properties ? 3. Whether trial Court was justified in nor carving out 1/5th share of plaintiff’s branch and other four branches ? 4. Whether trial Court was justified in applying valuation method to divide the properties in respect of agricultural lands which can easily divisible ? - 11 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 7. I have heard Sri. Mallikarjunaswamy B. Hiremath, learned counsel for the appellants and Sri. Subhash J. Baddi, Sri. Shivakumar Aparaj; Sri. Siddappa S. Sajjan, Sri. Shrikant T. Patil, and Sri. Rajashekar B. Halli and Sri. Dinesh M. Kulkarni, learned counsel appearing for the contesting respondents. 8. Sri. Mallikarjunaswamy B. Hiremath, learned counsel for the appellants submits that, the First Appellate Court has not considered the factual aspects on record as the suit is one for partition and separate possession and division of the properties has to be made in accordance with Preliminary Decree in OS No.121 of 2007. The Court Commissioner’s report was partly accepted and the Trial Court in Final Decree Proceedings allotted entire 42 acres of suit schedule property to the plaintiff alone though the Preliminary Decree envisages that, the plaintiff is entitled for - 12 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 1/10th share in the suit schedule property. He also argued that, the reasons assigned by the First Appellate Court rejecting the application in IA No.I, filed under Section 5 of Limitation Act is incorrect and cannot be accepted. 9. Per contra, Sri. Subhash J. Baddi, Sri. Shivakumar Aparaj; Sri. Siddappa S. Sajjan, Sri. Shrikant T. Patil, and Sri. Rajashekar B. Halli and Sri Dinesh M. Kulkarni, learned counsel appearing for the contesting respondents sought to justify the impugned order passed by the First Appellate Court. 10. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that, the suit in OS No.121 of 1997 which came to be decreed, whereby the plaintiff was allotted with 1/10th share in the suit schedule property. On perusal of the finding recorded by the First Appellate - 13 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 Court, wherein the appeal came to be dismissed on the ground that the appellant therein was not diligent in approaching the court at the earliest and as such, the application in IA No.I came to be dismissed. It well settled principle in law that it is not the length of delay but cause of delay has to be considered while considering the application filed under Section 5 of Limitation Act. Taking into consideration that, the suit is one for partition and separate possession which came to be disposed of and only dispute to be considered is with regard to division of suit schedule property amongst the parties to the suit, and therefore, the First Appellate Court ought not to have given technical approach to dismiss the application which according to this court requires liberal construction since, the said appeal is filed under Section 96 of CPC, which is the last court for the litigant to urge the facts on record. In that view of the - 14 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 matter, I find force in the submission made by the learned counsel for the appellants and without giving any finding on remaining substantial question of law, except considering Sl.No.1 in the substantial question of law with regard to ground of delay and laches, I am of the opinion that, the said substantial questions of law framed above favours the plaintiff. Hence, I pass the following: ORDER i) The Regular Second Appeal is allowed; ii) Order dated 03.08.2022 in RA No.8 of 2018 on the file of the Senior Civil Judge and JMFC, Shiggaon is hereby set aside and matter is remanded to the First Appellate Court to re-consider the issue fresh on merits and requested to pass - 15 - NC: 2025:KHC-D:6056 RSA No. 101052 of 2022 orders in accordance with law at the earliest. iii) All the contentions of the parties are kept open and this court has not considered the case on merits except considering the reasons assigned in IA No.I, for dismissing the appeal on delay and laches. iv) Since the parties are represented through their learned counsel, and therefore, the parties are directed to appear before the First Appellate Court on 03.06.2025 at 11 am without failing for further notice in this regard. Sd/- (E.S.INDIRESH) JUDGE SB CT-MCK List No.: 1 Sl No.: 41