- 1 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100527 OF 2024 (PAR/POS) BETWEEN: SMT KAVERI D/O MALLASARJA HUNASHIKATTI AGE. 33 YEARS, OCC. HOUSEHOLD R/O. KRCES COLLEGE ROAD, BAILHONGAL, TQ. BAILHONGAL DIST. BELAGAVI, PIN CODE. 591102. …APPELLANT (BY SRI. SANTOSH B. RAWOOT, ADVOCATE) AND: 1. SMT. DANAWWA, W/O MUDDANAGOUDA NAVALAGATTI AGE. 66 YEARS, OCC. HOUSEHOLD R/O. KURAGUND, TQ. BAILHONGAL DIST. BELAGAVI-591102 2. SMT. MAHADEVI D/O MALLASARJA HUNASHIKATTI, AGE: 64 YEARS, OCC: HOUSEHOLD, R/O: KRCES COLLEGE ROAD, BAILHONGAL TQ: BAILHONGAL DIST: BELAGAVI. PIN CODE: 591102. 3. SMT.SUMITRA @ SUMANGALA W/O IRAPPA YENAGI, AGE: 42 YEARS, OCC: HOUSEHOLD, R/O: KORIKOPPA TQ: BAILHONGAL DIST: BELAGAVI. PIN CODE: 591102. Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.03.01 12:10:30 +0530 - 2 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 4. SMT. SUNITA @ SUNANDA W/O ANAND TURUMARI, AGE: 39 YEARS, OCC: HOUSEHOLD, R/O: MARUTI GALLI TQ: BAILHONGAL DIST: BELAGAVI. PIN CODE: 591102. 5. SMT. SAVITRI W/O BASAVARAJ GIREPPAGOUDAR, AGE: 37 YEARS, OCC: HOUSEHOLD, R/O: BAILWAD TQ: BAILHONGAL DIST: BELAGAVI. PIN CODE: 591102. 6. SMT. VIJALAXMI D/O MALLASARJA HUNASHIKATTI, AFTER MARRIAGE VIJALAXMI, W/O ANAND BORAKANAVAR AGE: 34 YEARS, OCC: HOUSEHOLD, R/O: KRCES COLLEGE ROAD, BAILHONGAL, TQ: BAILHONGAL, DIST: BELAGAVI. PIN CODE: 591102. 7. SHRI. CHINNAPPA S/O CHANABASAPPA MENASHINAKAI, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: HARUBELAWADI TQ: SAUNDATTI DIST: BELAGAVI. PIN CODE: 591126. 8. SHRI. SHRISHAIL S/O SHANKAREPPA YADALLI, AGE: 50 YEARS, OCC: AGRICULTURE , R/O: BAY-PASS ROAD TQ: BAILHONGAL DIST: BELAGAVI. PIN CODE: 591102. 9. SHRI. HUSENSAB S/O ALLISAB BAGAWAN, AGE: 72 YEARS, OCC: AGRICULTURE , R/O: BAGWAN GALLI TQ: BAILHONGAL DIST: BELAGAVI. PIN CODE: 591102. …RESPONDENTS THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, PRAYING TO, THE JUDGMENT AND DECREE DATED 03.04.2017 PASSED IN O.S.NO.55/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, BAILHONGAL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. - 3 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and preliminary decree dated 03.04.2017 passed in OS No.55/2012 by the Senior Civil Judge, Bailhongal. 2. The parties are referred to, as per their ranking before the trial Court. The appellant was defendant No.1(f), respondent No.1 was the plaintiff and other respondents were the other defendants. 3. Brief facts leading rise to filing of this appeal are as follows:- Plaintiff filed a suit for partition and separate possession contending that the plaintiff and defendants No.1 and 2 are the members of a Hindu joint family and - 4 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 the suit schedule properties are the ancestral and the joint family properties of plaintiff and defendants No.1 and 2. It is contended that defendant No.1 sold some of the joint family properties to defendants No.3 to 5 without the consent of the plaintiff. The plaintiff demanded partition and separate possession. Defendant No.1 refused to effect the partition. Hence, a cause of action arose for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant No.1 filed a written statement denying the averments made in the plaint and contended that defendant No.3 is the foster son of defendant No.2 and he had performed the marriage of defendant No.3. It is contended that the marriage of the plaintiff was performed and her family has sufficiently well off. Defendant No.1 by incurring a loan of rupees two to three lakhs performed the marriage of the plaintiff. Further, it is stated that the mutation entries in the name of defendant No.1 was effected with the consent of the plaintiff and the - 5 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 same was not challenged by her. Hence, prays to dismiss the suit. 5. Defendant No.4 filed written statement contending that he had purchased the land bearing S.No.266/7, measuring 39 guntas from defendant No.1, under a registered sale deed dated 28.10.2011. After the purchase, he invested a huge amount of money and developed the land. He is a bonafide purchaser for the valuable consideration. Accordingly, prays to protect his interest. 6. Defendant No.5 filed a written statement contending that he is the purchaser of land bearing Sy.No.436/A1/2E measuring 36.8 guntas, from defendant No.1 under the registered sale deed dated 27.04.2000. After purchasing the said property, he had invested a huge amount and developed the said land and hence, prays to protect the interest of defendant No.5. 7. The trial court, based on the pleadings, recast the issues, which are as follows: - 6 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 RECASTED ISSUES. 1. Whether the plaintiff proves that suit item No.1 to 3 in A-schedule were fell to the share of her father Basappa? 2. Whether the plaintiff further proves that the rest of the suit schedule properties are the self-acquired properties of her father Basappa? 3. Whether the plaintiff further proves that, sale deed dated 05/04/2011, 28/10/2011, 28/12/2011 and 27/04/2000 is not binding on her share? 4. Whether the defendant No.1 & 2 prove that, the defendant No.3 being a fostered son of defendant No.2 is entitle for equal share as contended in the written statement? 5. Whether the defendant No.3 to 5 prove that, they are the bonafide purchasers for valuable consideration and thereby their interest has to be protected? 6. Whether the plaintiff proves that she is entitle for half share in all the suit schedule properties? - 7 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 7. Whether the defendant No.5 proves that, suit of the plaintiff is hopelessly barred by time? 8. What decree or order? 8. The plaintiff to substantiate her case, examined herself as PW1 and marked 32 documents as exhibits P1 to P32. On the other hand, the defendants examined 7 witnesses as DW1 to DW7 and marked 33 documents as exhibits D1 to D33. The trial court, after recording the evidence, hearing on both sides and after assessment of oral and documentary evidence, answered issue Nos.1 and 5 in the affirmative, issue Nos.2 to 4 in the negative, issue No.6 partly in the affirmative, issue No.7 does not survive for consideration. Issue No.8 as per final order. The suit of the plaintiff was decreed in part. It is declared that the plaintiff is entitled to 1/4th share in suit item Nos.1 to 6 and item No.1 to 4 in A &B schedule properties respectively. The legal representatives of defendant No.1 i.e. defendant No.1(a) to (f) are jointly entitled for 3/4th - 8 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 share in suit house property bearing TMC No.421/C/2A. The plaintiff is entitled to 1/4h share in the suit house property bearing TMC No.421/C/2A. The legal representatives of defendant No.1 i.e. defendant No.1(a) to (f) are jointly entitled for 3/4th share in suit item No.1 to 6 and suit item No.1 to 4 in A & B schedule properties respectively. The suit of the plaintiff regarding the suit property bearing TMC No.421/C/2, Item No.7 to 9 in ‘A’ schedule and Item No.5 in ‘B’ schedule properties, was dismissed. One of the legal representatives of defendant No.1 aggrieved by the judgment and preliminary decree filed this regular first appeal. 9. Defendant No.1(a) filed an application in IA No.1/2024 under Section 5 of the Limitation Act for condonation of delay of 2689 days in filing the above appeal. In support of the application, filed an affidavit, contending that the appellant herein aggrieved by the judgment and decree passed in OS No.55/2012, filed this regular first appeal. It is contended that the impugned - 9 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 judgment was challenged by respondent No.4 herein, in Regular First Appeal No.100380/2017 and the appellant was informed to file cross objection to the said appeal. But, he did not file the same. It is contended that the respondent No.4 has withdrawn the said appeal without the knowledge of the appellant. It is further stated that when FDP No.40/2023 was filed by respondent No.1 herein at that time, the appellant learned that respondent No.4 had withdrawn the appeal. Thereafter, he collected the documents and presented the appeal. Thus, a delay has been caused in filing this appeal. Hence, prays to allow IA No.1/2024. 10. Perused the records, considered the submission of the learned counsel for the parties. 11. It is not in dispute that respondent No.1/plaintiff filed a suit for partition and separate possession against the defendants. Defendant No.1 died during the pendency of the suit. His legal representatives were brought on record as defendant No.1(a) to (f). The - 10 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 trial Court framed the issues and recorded the evidence of the parties, and the suit was decreed in part vide judgment dated 03.04.2017 passed in OS No.55/2012 and aggrieved by the same, respondent No.4 herein preferred an appeal in RFA No.100380/2017. In the said appeal, a notice was duly served upon the appellant. The appellant appeared in the said suit. Respondent No.4 has withdrawn the said appeal. It is the contention of the appellant that he had instructed the counsel to file a cross objection, the counsel did not file the cross objection. Except taking the contention that he had instructed the counsel to file a cross objection, the appellant has not shown sufficient cause for condoning delay for more than 7 years. On the ground of delay and latches, the said application is liable to be rejected. 12. Thus, there is inordinate delay on the part of the appellant in approaching this Court. The appellant has not explained the delay satisfactorily. Thus, doctrine of delay and laches should not be lightly brushed aside. The - 11 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 Court should bear in mind that while exercising jurisdiction, it has the duty to protect the right of the citizen, but simultaneously it has to keep itself alive to the primary principle that when an aggrieved person without reason approaches the Court at their own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. It may be noted that delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant – a litigant who has forgotten the basic norms, namely, “procrastination is the greatest thief of time” and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis. A Court is not expected to give indulgence to such indolent persons - who compete with ‘Kumbhakarna’ or for that matter ‘Rip Van Winkle’. Thus, there is delay in filing the - 12 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 appeal. Such inordinate delay of 1172 days in filing second appeal does not deserve any indulgence. Hence, on the ground delay and laches, the appeal is liable to be dismissed at the very threshold. The Hon'ble Apex Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and others vs. T.T.Murali Babu reported in 2014(4) SCC 108, declined to condone the delay of four years in approaching the Court. The Hon'ble Apex Court in the case of Majji Sannemma @ Sanyasirao vs. Reddy Sridevi & Ors., in Civil Appeal No.7696/2021 disposed of on 16.12.2021 relying on the judgment of the said Court in the case of Basavaraj and another vs. Special Land Acquisition Officer reported in (2013)14 SCC 81 has observed as under: “The expression “sufficient cause” cannot be liberally interpreted if negligence, inaction or lack of bona fides is attributed to the party.” It is further observed that, “Even though limitation may harshly affect the rights of a party but it has to be applied with all its rigour when prescribed by statute.” - 13 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 It is further observed that,- “In case a party has acted with negligence, lack of bonaf ides or there is inaction then there cannot be any justified ground for condoning the delay even by imposing conditions.” It is observed that, “Each application for condonation of delay has to be decided within the framework laid down by this Court”. It is further observed that, “If Courts start condoning delay where no sufficient cause is made out by imposing conditions then that would amount to violation of statutory principles and showing utter disregard to the legislature.” The Hon'ble Apex Court has declined to condone the delay of 1011 days in preferring the second appeal. Further, the Hon'ble Apex Court in the case of Lingeswaran Etc. vs. Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022 disposed of on 25.02.2022, held that when it is found that the delay is not properly explained, the application to condone the delay is required to be dismissed. The Hon'ble Apex Court declined to condone the delay of 465 days. - 14 - NC: 2025:KHC-D:3922-DB RFA No. 100527 of 2024 13. Considering the law declared by the Hon'ble Apex Court in the above cases, the appellant has not made out sufficient cause to condone the delay of 2689 days in filing the appeal. Accordingly, I.A.No.1/2024 filed seeking condonation of delay is deserve to be dismissed. 14. Accordingly, we proceed to pass the following: ORDER IA No.I/2024 is rejected. Consequently, the Regular First Appeal is dismissed. No order as to the costs. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE HMB LIST NO.: 1 SL NO.: 22