- 1 - HC-KAR NC: 2025:KHC:44909 RSA No. 1635 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 1635 OF 2023 BETWEEN: 1. SRI. BASAVARAJU S/O LATE BANEGOWDA AGED ABOUT 62 YEARS 2. SRI KRISHNAPPA S/O LATE BANEGOWDA AGED ABOUT 58 YEARS BOTH ARE R/A IRIKASANDAR CHELUR HOBLI, GUBBI TALUK TUMKUR DISTRICT-572216. …APPELLANTS (BY SRI. RAVI PRAKASH V., ADVOCATE) AND: 1. SMT NANJAMMA W/O LATE SHIVANNA D/O LATE BANEGOWDA AGED ABOUT 60 YEARS R/A IRIKASANDARA, CHELUR HOBLI, GUBBI TALUK TUMKUR DISTRICT -572216. 2. SMT JAYAMMA W/O LATE SHIVA SHANKARAIAH AGED ABOUT 61 YEARS Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44909 RSA No. 1635 of 2023 3. MOHAN KUMAR S/O LATE SHIVA SHANKARAIAH AGED ABOUT 38 YEARS 4. SMT LATHA D/O LATE SHIVA SHANKARAIAH W/O CHIKKANNA AGED ABOUT 41 YEARS RESPONDENT NO.2 TO 4 ARE R/A SINGIPURA, BELLAVI HOBLI TUMKUR TALUK -572101. 5. SRI DODDAIAH S/O LATE BANEGOWDA AGED ABOUT 64 YEARS 6. SRI SHIVANANAJAIAH S/O SRI DODDAIAH AGED ABOUT 40 YEARS 7. SMT CHANDRAMMA W/O SRI SHIVANANAJAIAH AGED ABOUT 36 YEARS 8. SRI JAGADISH S/O SRI DODDAIAH AGED ABOUT 31 YEARS RESPONDENT NO.5 TO 8 ARE R/A IRIKASANDRA, CHELUR HOBLI GUBBI TALUK TUMKUR DISTRICT-572216 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.08.2023. PASSED ON IA NO.1 IN RA No.31/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, GUBBI, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 20.10.2016 PASSED IN OS No. 338/2013 ON THE FILE - 3 - HC-KAR NC: 2025:KHC:44909 RSA No. 1635 of 2023 OF THE ADDITIONAL CIVIL JUDGE AND JMFC, GUBBITRIAL COURT PARTLY DECREED THE SUIT. APPELLATE COURT DISMISSED APPEAL AND SUIT FOR PARTITION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel appearing for the appellants. 2. This matter is listed for admission and the appeal is filed against the concurrent findings. 3. The trial court granted the relief of 1/6th share in respect of the share of the father, since father has not executed any testamentary document in favour of any of the children. Having considered the material available on record, O.S.No.338/2013 was disposed of on 20.10.2016 and first appeal was filed in the year 2020 after four years of passing of the judgment and decree and four years of delay was not properly explained. Hence, the first appellate court dismissed the appeal on the ground that the appellant has shown his ignorance and his father and - 4 - HC-KAR NC: 2025:KHC:44909 RSA No. 1635 of 2023 uncle appointed one advocate and admitted his uncle Shivashankaraiah died. After the death of Shivashankaraiah, the notice has been served upon the legal representatives of Shivashankariah and legal representatives of Shivashankaraiah appeared in Final Decree Proceedings and filed their objections and appellant himself has produced the order sheet in FDP No.9/2017 and also shown his ignorance that Court Commissioner was appointed. To that application, his father and other defendants have also filed objections. It also says that his father was walking properly but he is suffering from joint pain and considering the testimony of PW1, comes to the conclusion that proper explanation is not given for four years delay in filing the appeal and order sheet in O.S. No.338/2013 which clearly depicts that his father contested the suit as defendant No.5 and he was alive. As per admission, it is very clear that his father was hale and healthy and though appellate court comes to the conclusion that appellant reveals that in order to drag the - 5 - HC-KAR NC: 2025:KHC:44909 RSA No. 1635 of 2023 matter and to avoid FDP No.9/2017, without any proper reason, with malafide intention, filed appeal in RA No.31/2020 after four years. Hence, the appellate court comes to the conclusion that no ground was made to condone the delay and dismissed the same. Being aggrieved by the dismissal of the first appeal, present second appeal is filed before this Court and contended that trial court is not right in granting notional share to the plaintiff even after she admitting the fact that partition has taken place between defendants No.1 to 5 long back and revenue entries found based on that partition and question of entitled for notional partition doesn't arise. Hence, this Court has to admit the appeal and frame substantial questions of law. 4. Having considered the grounds which have been urged and also the pleadings of the parties and trial court also granted the relief of 1/6th share in respect of the share of the father and not in respect of the entire property and the same is also notional share in respect of - 6 - HC-KAR NC: 2025:KHC:44909 RSA No. 1635 of 2023 property of the father and also appeal was not filed within time, appellate court dismissed the same on the ground of delay since there was a delay of four years and when such being the case, delay of four years has not been explained by the appellant inspite of FDP proceedings initiated and even the father of the appellant had also contested the FDP proceedings by filing the objections. Hence, I do not find any ground to admit and frame any substantial questions of law. 5. Accordingly, the second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE KLY CT: JL