- 1 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 368 OF 2024 (PAR) BETWEEN: 1. SMT. LAKSHMAMMA D/O LATE PAPE GOWDA, AGED ABOUT 66 YEARS R/AT NO. 145, OLD KAMANA KOPPALU, YELAWAL HOBLI, MYSURU DISTRICT - 571 130. 2. SMT. JAYAMMA D/O LATE PAPE GOWDA, AGED ABOUT 64 YEARS R/AT NO. 145, OLD KAMANA KOPPALU, YELAWAL HOBLI, MYSURU DISTRICT - 571 130. 3. SMT, NAGAMMA D/O LATE PAPE GOWDA, AGED ABOUT 56 YEARS R/AT NO. 90, 1ST CROSS KURUBARA HALLI, NAZARBAD MOHALLA MYSURU - 570 010. 4. SMT. MANGALAMMA S/O LATE PAPEGOWDA AGE ABOUT 60 YEARS Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 R/AT NO. 186, G.R. NAGAR OOTY MAIN ROAD, MYSURU - 570 010. 5. SMT. LEELA W/O LAKSHMAN AGE ABOUT 58 YEARS R/AT NO. 1791 GUNDU RAO NAGAR OOTY MAIN ROAD, MYSURU - 570 010. …APPELLANTS (BY SMT. NANDINI B, ADVOCATE FOR SRI. BHARGAV G, ADVOCATE) AND: 1. SRI MAHADEVU S/O LATE PAPEGOWDA AGE ABOUT 70 YEARS R/AT NO. 186, GUNDU RAO NAGAR OOTY MAIN ROAD, MYSURU - 570 010. 2. SRI. PRAKASH W/O LATE PAPEGOWDA AGE ABOUT 67 YEARS R/AT NO. 235, GUNDU RAO NAGAR OOTY MAIN ROAD, MYSURU - 570 010. 3. SRI. PUTTASWAMY S/O LATE PAPEGOWDA AGE ABOUT 50 YEARS R/AT NO. 1618/1 - 3 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 HOSKERI, 5TH CROSS MYSURU - 570 004. …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 6.12.2023 PASSED ON IA NO.I IN RA NO.497/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MUYSURU, DISMISSING THE IA NO.1 FILED UNDER SEC.5 OF THE LIMITATION ACT., AND FILED AGAINST THE JUDGMENT AND DECREE DATED 2.11.2011 PASSED IN OS NO.335/2008 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE, MYSORE., DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Smt. Nandini for Sri. Bhargav G. for the appellants. 2. Unsuccessful plaintiffs are the appellants challenging the dismissal of the suit for partition and separate possession in respect of the following properties - 4 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 (hereinafter referred to as 'suit property') in O.S. No.335/2008 and dismissal of their belated appeal in R.A. No.497/2019 on the ground of limitation. SCHEDULE 1. Land bearing Sy.No. 55/2A, measuring 0-33 guntas, situated at Bandipalya village, Kasaba Hobli, Mysore Taluk, bounded on the: East: Property of Muddegowda, West: Road, North: Varuna Canal, South: Property of Kantaraju. 2. Land bearing Sy.No. 65, measuring 1 acre 15 guntas, situated at Bandipalya village,k Kasaba Hobli, Mysore Taluk, bounded on the: East: road, West: Property of Sakamma North: Property of Kantaraju & Chikkalingamma, South: Property of Siddaiah. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: 3.1 A suit for partition and separate possession in respect of the suit properties came to be filed by contending that plaintiffs are the sisters of defendants and - 5 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 they are all children of Late Papegowda and Smt. Sannamma and suit properties are ancestral properties. 3.2 It is their specific contention that they demanded grant of their share in the suit properties which denied by the defendants by contending that the suit properties were already divided. Therefore, they filed the suit for partition. 4. Defendants entered appearance pursuant to the suit summons and denied the plaint averments in toto and specifically contended that there was a previous partition and suit properties were already divided. 5. They further contended that plaintiffs have also been granted share in respect of the suit properties by granting sites measuring 30 ft x 40 ft. and suppressing the said material fact, they have filed a suit with a malafide intention and sought for dismissal of the suit. - 6 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 6. Suit on due contest came to be dismissed by considered judgment dated 02.11.2011. 7. The plaintiffs did not pursue the matter further, but they filed a belated appeal before the First Appellate Court in R.A. No.497/2019. The delay in filing the appeal was to the tune of 2,933 days. 8. Along with appeal, an application under Section 5 of the Limitation Act vide I.A.No.1 is filed supported by an affidavit wherein they contended that they were not aware of the result of the suit. 9. Having regard to the huge delay, the respondents filed objections. Enquiry was held by the learned Judge in the First Appellate Court on the application seeking condonation of delay. 10. In such enquiry, in cross-examination of PW1, there is a specific admission by PW1 Lakshmamma stating that herself and her sister had visited the Trial Court on - 7 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 the day of judgment and they came to know about the result of the suit on the day of passing the judgment by the Trial Court. 11. In the teeth of such a categorical admission in the witness box, the contentions urged in the affidavit that they were not aware of the result of the suit and therefore they could not file the appeal in time and putting the blame on the advocate who represented the plaintiffs is rightly rejected by the learned Judge in the First Appellate Court, consequently dismissed the appeal. 12. Being further agreed by the same, appellants are before this Court in this appeal on the following grounds and substantial questions of law: The Judgments and Decree passed by the Trial Court are not sustainable and the same are perverse, arbitrary, capricious and against the established principles of law. That the Trial Court has not taken into consideration the documents produced by the Appellants. The documents produced by the Appellants had enough strength to decree the suit filed by the Appellants/Plaintiffs. However, - 8 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 by not giving much importance to the said facts and the documents, the Trial Court proceeded to pass the impugned Judgement and Decree by dismissing the suit. That in passing the impugned Judgement and Decree, the Trial Court seriously erred both on facts and under law. The Appellants submits that the impugned Judgement and Decree suffers from material legal vices, including non-appreciation of the facts of the matter, misapplication of the facts and law and ignoring judicial precedents. The Trial Court has not factored any of the submissions or the binding judicial precedents provided by the Appellants while passing the impugned Judgement and Decree. Such failure to consider and follow the submission or the judicial precedents provided by the Appellants, including precedents that are binding on the Trial court, which apply squarely to the situation of the Appellants, is wholly unjustified and merits reconsideration of the Judgement by this Hon'ble Court. The Trial Court erroneously came to a conclusion that the panchayath palu patti was executed amongst the family members and the same was acted upon and proceeded to pass the impugned Judgement and Decree, which needs the interference of this Hon'ble Court. The Trial Court failed to observe that the reliefs sought by the Appellant was an equitable relief and by granting the same the ends of justice would have been met. But the Trial Court proceeded to pass the impugned Judgement - 9 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 and Decree, which needs the interference of the Hon'ble Court. The Trail Court ought to have observed that if the relief sought by the Appellants are not granted, the same may lead to multiplicity of proceedings in case if the Defendants/Respondents proceeds to take undue advantage of the impugned Judgement and Decree passed by the Trial Court. That, as given facts and position and provision of law stated by the Appellants and Judicial decisions in support of his case, the Appellants will be unnecessarily prejudiced and will have to suffer substantial present and future losses. To prevent such substantial losses to the Appellants, it is submitted that it is essential that the impugned Judgement and Decree is set aside and the suit be decreed in favour of the Plaintiffs/Appellants herein, by this Hon'ble Court. There is a good case in favour of the Appellants and if the above appeal is not allowed, the Appellants will be put into great hardship and inconvenience. On the other hand if the same is allowed no hardship or inconvenience will be caused to the other side. It is submitted that the 1st Appellate court has dismissed the appeal as barred by limitation rather disposing the matter on merit. Admittedly it is a suit for partition. The Plaintiffs have filed the application for condonation of - 10 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 delay and in fact they led the evidence and established the ground on which the delay is committed in filing the appeal before the 1st Appellate court. The Appellants are illiterate women they had no knowledge about the pros and cons of the legal proceedings. The delay which was caused should not take away the legitimate right of an individual. Viewed from all angles the impugned Judgements and Decrees are not a sustainable one and the same need the indulgence and interference of this Hon'ble Court, hence the second appeal. To prevent the abuse of the process of law, allowing this appeal is just and necessary. SUBSTANTIAL QUESTIONS OF LAW 1. "Whether the Trial Court is right in dismissing the suit of the Plaintiff based on the unregistered panchayath palu patti dated on 29-06-1980 when the same is disputed by the Plaintiffs? 2. "Whether the First Appellant Court is perversive in dismissing the appeal as barred by limitation? 3. "Whether the First Appellate Court is perversive in not considering the evidence of the Plaintiffs on I.A No.1 an application U/s 5 of the limitation Act, 1963?" - 11 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 13. Smt. Nandini, learned counsel for the Appellants, reiterating the grounds urged in the appeal memorandum vehemently contended that Trial Court wrongly dismissed the suit on the ground of previous partition and First Appellate Court without holding the enquiry on merits, dismissed the appeal on the ground of limitation has resulted in grave miscarriage of justice insofar as the appellants are concerned and sought for admitting the appeal on the aforesaid substantial questions of law. 14. Having heard the arguments of Smt. Nandini, this Court perused the material on record meticulously. 15. On such perusal of the material on record, it is crystal clear that the defendants have taken up a specific contention of the previous partition wherein they have given the details of proportion representing their shares that has been allotted to the plaintiffs as well. - 12 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 16. Further to their contentions, in the material evidence placed on record, defendants have placed cogent and convincing evidence on record about the previous partition and plaintiffs also getting a share in the said previous partition which has been suppressed by the plaintiffs while filing the suit in the Trial court. 17. Thus, the learned Trial Judge rightly recorded a categorical finding that the plaintiff’s suit for second partition is not maintainable and rightly dismissed the suit. 18. Plaintiffs were satisfied with the judgment and decree passed by the Trial Court. But, as an afterthought, they filed a belated appeal before the First Appellate Court in R.A.No.497/2019 with a delay of 2,933 days. 19. An enquiry was held by the First Appellate Court with regard to application seeking condonation of the huge delay. - 13 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 20. In such enquiry, PW1 Lakshmamma, one of the appellants is examined as PW1. In her cross-examination, she categorically admits that herself and her sister had been to the Trial Court on the day of judgment and they came to know about the dismissal of the suit on the day of judgment of the Trial Court itself. 21. In the teeth of such an admission on behalf of the appellants by PW1-Lakshmamma, the contentions urged in the affidavit in support of seeking condonation of huge delay of 2,933 days that they were not aware of the result on account of their advocate not communicating the result of the suit is thus rightly rejected by the learned Judge in the First Appellate Court. 22. Conduct of the plaintiffs in suppressing the oral partition before the Trial Court and their further conduct before the First Appellate Court in suppressing the fact of knowledge of dismissal of the suit on the day of judgment and filing a false affidavit that they were not aware of the - 14 - HC-KAR NC: 2025:KHC:38512 RSA No. 368 of 2024 result of the suit as their advocate did not communicate the result of the suit only with an intention to get the appeal admitted before the First Appellate Court shows that plaintiffs are somehow interested in keep the fire burning and somehow keep the lis alive for all time to come only with an intention to harass the defendants. 23. Therefore, this Court does not find merit in any one of the grounds urged in the appeal memorandum. 24. Hence, following order : ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 61 CT: BHK