- 1 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.948 OF 2015 (DEC/INJ) BETWEEN: 1. SMT. LAKSHMAMMA W/O LATE NARASIMHAIAH, SINCE DEAD BY LRS NARASIMHAMURTHY S/O LATE NARASIMHAIAH, AGED ABOUT 42 YEARS, 2. SMT. MAHADEVAMMA D/O LATE NARASIMHAIAH, AGED ABOUT 42 YEARS, 3. SMT. PARVATHAMMA @ SAVITHRAMMA D/O LATE NARASIMHAIAH, AGED ABOUT 40 YEARS, 4. BASAVAIAH @ BASAVARAJU S/O LATE NARASIMHAIAH, AGED ABOUT 39 YEARS, 5. SMT. BHAGYAMMA D/O LATE NARASIMHAIAH, AGED ABOUT 37 YEARS, 6. SREEKANTAIAH S/O LATE NARASIMHAIAH, AGED ABOUT 50 YEARS, 7. SMT. ASHWATHAMMA W/O LATE CHIKKANNA , Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 AGED ABOUT 46 YEARS, 8. DODDAIAH S/O KAREMARAIAH, AGED ABOUT 70 YEARS, 9. GANGADHARAIAH S/O KARERANGAIAH, AGED ABOUT 32 YEARS, ALL ARE RESIDING AT MADANAGHATTA VILLAGE, NITTUR HOBLI, GUBBI TALUK, TUMAKURU DISTRICT - 572216. …APPELLANTS (BY SRI. GANGADHARAPPA A.V., ADVOCATE) AND: 1. BASAVALINGAPPA SINCE DEAD BY LRS. M.B. SIDDARAMANNA S/O LATE BASAVALINGAIAH, AGED ABOUT 44 YEARS, RESIDENT OF MADANAGHATTA VILLAGE, NITTURU HOBLI, GUBBI TALUK, TUMAKURU DISTIRICT - 572216. 2. M.B. CHANNABASAVIAH S/O LATE BASAVALINGAIAH, SINCE DEAD BY LRS. SMT. LATHAMANI W/O LATE M B CHANNABASAVAIAH, AGED ABOUT 42 YEARS, RESIDENT OF MADANAGHATTA VILLAGE NITTUR HOBLI, GUBBI TALUK, - 3 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 TUMAKURU DISTRICT - 572216. 3. SMT. PREMAKUMARI W/O RAVEESH, D/O LATE BASAVALINGAIAH, AGED ABOUT 30 YEARS, RESIDENT OF BETTADAHALLI HAGALAVADI HOBLI, GUBBI TALUK, TUMAKURU DISTRICT - 572216. 4. SMT. M.S. SHIVAGANGAMMA W/O SIDDALINGAMURTHY D/O LATE BASAVALINGAIAH, AGED ABOUT 40 YEARS, RESIDENT OF YELACHIHALLI VILLAGE, KADABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT - 572216. 5. SMT. GURUSIDDAMMA W/O LATE BASAVALINGAIAH, AGED ABOUT 80 YEARS, RESIDENT OF MADANAGHATTA VILLAGE, NITTURU HOBLI, GUBBI TALUK, TUMAKURU DISTRICT - 572216. 6. NANJAPPA S/O BOMMALINGAIAH, SINCE DEAD BY LRS. NANJUNDAPPA S/O LATE NANJAPPA , AGED ABOUT 66 YEARS, RESIDENT OF MADANAGHATTA VILLAGE, NITTURU HOBLI, GUBBI TALUK, TUMAKURU DISTRICT - 572216. 7. SMT. RATHNAMMA M N W/O LATE BASAVARAJU, - 4 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 D/O LALTE NANJAPPA AGED ABOUT 52 YEARS, RESIDENT OF YALLAPURA, NITTURU HOBLI, GUBBI TALUK, TUMAKURU DISTRICT - 572216. …RESPONDENTS (BY SRI. S V PRAKASH FOR R1 & R3 TO R7 ADVOCATE; NOTICE TO R2 HELD SUFFICIENT V/O DATED 25.01.2019) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 16.04.2007 PASSED IN R.A NO.146/2006 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.09.2003 PASSED IN O.S NO.227/89 ON THE FILE OF THE CIVIL JUDGE (JR.DN.), GUBBI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This Regular Second Appeal is filed by the legal representatives of the defendant Nos.1, 2, 4, 6 and 7 challenging the judgment and decree dated 16.04.2007 passed in R.A. No. 146 of 2006 on the file of the I - 5 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 Additional Sessions Judge (Fast Track), Tumkur, whereby the appeal was allowed, and the judgment and decree dated 12.09.2003 passed in O.S. No. 227 of 1989 on the file of the Civil Judge, (Jr. Dn.) Gubbi, dismissing the suit of the plaintiffs, came to be set aside. 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 brief facts leading to the suit, as averred in the plaint are that, the plaintiffs have filed suit, in O.S. No.227 of 1989 seeking relief of declaration and consequential relief of permanent injunction against the defendants and the said suit was contested by the defendants by filing written statement. After recording the evidence of the parties, the Trial Court by judgment and decree dated 12.09.2003 dismissed the suit. Feeling aggrieved by the same, the plaintiffs have preferred - 6 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 R.A.No.119 of 2003 and thereafter, same was renumbered as RA No.146 of 2006 before the First Appellate Court and the said appeal was resisted by the defendants. After re-appreciating the material on record, the First Appellate Court, by judgment and decree dated 16.04.2007, allowed the appeal and decreed the suit of the plaintiffs. Feeling aggrieved by the said judgment, the contesting defendants have filed the present Second Appeal. As there is a delay of 2,882 days in filing the appeal, the appellants have filed I.A. No.1 of 2015 seeking condonation of delay. The respondents have filed objections to I.A. No. 1 of 2015. 4. This Court, vide order dated 13.06.2024, directed the Registry to secure the records and to verify whether the appellants had contested the matter before the First Appellate Court. Pursuant to the said direction, the Office of the Principal District and Sessions Judge, Tumkuru, vide communication dated 02.09.2024, - 7 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 submitted a report along with relevant documents to this Court. 5. I have heard Sri. Gangadharappa A.V., learned counsel for the appellants and Sri. S.V. Prakash, learned counsel appearing for the respondent Nos.1 and 3 to 7. 6. Sri. Gangadharappa A.V., learned counsel appearing for the defendants/appellants submits that, the defendants /appellants have good case on merits, and the defendants have not been heard in the matter by the First Appellate Court. It is also argued by the learned counsel for the appellants that, no notice was issued by the First Appellate Court and no representation on behalf of the respondents therein was made. Therefore, the impugned judgment and decree passed by the First Appellate Court is nothing but an ex- parte judgment. Further, Sri. Gangadharappa A.V., learned counsel for the appellants invited the attention - 8 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 of the court to paragraph 4 of the affidavit accompanying application in IA No.1 of 2015, and submitted that, the appellants came to know about the disposal of the appeal by the First Appellate Court, only through the summons issued in Original suit. Upon obtaining certified copies of the judgment and decree passed by the First Appellate Court, they took immediate steps to file the present Second Appeal and therefore, sought indulgence of this Court. 7. Per contra, Sri. S.V. Prakash, learned counsel for the respondent Nos. 1 and 3 to 7 strenuously objected for the application in IA No.1 of 2015 filed by the appellants seeking condonation of delay and submitted that, sufficient cause has not been shown to condone the inordinate delay of 08 years in filing the Regular Second Appeal and accordingly, sought for dismissal of the application, consequently, the appeal. Sri. S. V. Prakash, learned counsel further submitted that, the - 9 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 appellants herein have preferred another suit in OS No.76 of 1987 which came to be decreed on 13.07.2001 and feeling aggrieved by the same, the respondents herein have filed R.A.No.91 of 2001 which came to be renumbered in terms of the order dated 21.04.2006 in Miscellaneous No.5 of 2006 on the file of Principal District Judge, Tumakuru and the appeal preferred by the respondents herein in RA No.91 of 2001 was transferred to Fast Track court and renumbered as RA No.275 of 2005. The said appeal came to be allowed by the First Appellate Court, and the said judgment and decree passed by the First Appellate Court is unchallenged and therefore, it is submitted that the appellants herein have not approached this court with clean hands. Accordingly, sought for dismissal of the IA No.1 of 2015. - 10 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 8. Heard the learned counsel appearing for both parties. Perused the impugned judgments and order sheets of the Courts below. 9. In the light of the submission made by the learned counsel appearing for the respondents herein, plaintiffs have filed suit in OS No. 227 of 1989 and the said suit came to be dismissed by the judgment and decree dated 12.09.2003 by the Trial Court. Feeling aggrieved by the same the plaintiffs, in OS No. 227 of 1989 have preferred R.A.No.146 of 2006 before the First Appellate Court. I have carefully examined the order sheet in R.A.No.146 of 2006, wherein, it is forthcoming from the order sheet that vakalathnama has been filed by the learned counsel on behalf of the respondents therein. The vakalath filed by the learned counsel appearing for the respondents is found in the original records. I have also noticed that, the appellants herein have filed another suit in OS No.76 of 1987 which came to be - 11 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 decreed on 13.07.2001 and feeling aggrieved by the same, the contesting respondents herein have preferred RA No.91 of 2001. It appears that two appeals are pending consideration before the First Appellate Courts and as such, the respondents herein have filed Miscellaneous No. 5 of 2006 under Section 24 of CPC seeking transfer of RA No.91 of 2001, to the Fast Track court in which, RA No.146 of 2006 is pending, which impugned in the present appeal. The learned Principal District Judge by order dated 21.04.2006, in Miscellaneous No.5 of 2006 allowed the petition and transferred the RA No. 91 of 2001 to the Fast Track Court and same was renumbered as RA No.275 of 2005. The said appeal came to be allowed and same has reached finality, as the appellants have not preferred any appeal as such. In the backdrop of these aspects and on careful consideration of the averments made in the IA No.1 of 2015 at paragraph 4 it is stated through an affidavit by the appellants herein that no notice was - 12 - HC-KAR NC: 2025:KHC:35197 RSA No. 948 of 2015 issued and no representation on behalf of the learned counsel has been made before the First Appellate Court. On careful consideration of the vakalathnama filed by the learned counsels appearing for the respondents in R.A.No.146 of 2006 and perusal of the order sheet would indicate that the learned counsel for the respondents have argued the matter on merits also. Therefore, I find that the reasons assigned in I.A.No.1 of 2025 are not tenable and contrary to records. The delay of 08 years in filing the appeal remains unexplained and cannot be condoned in the absence of sufficient cause. Therefore, I am of the view that, I.A.No.1 of 2015 requires to be dismissed. Hence, I.A.No.1 of 2025 is dismissed, consequently, the Regular Second Appeal is also dismissed. Sd/- (E.S.INDIRESH) JUDGE SB:List No.: 1 Sl No.: 32