- 1 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 402 OF 2023 BETWEEN: SRI. DORESWAMY S/O LATE SRI. RANGAIAH, AGED ABOUT 78 YEARS, RESIDING AT KANIYARA BEEDHI HOSA MALANGI VILLAGE, KOLLEGAL TALUK CHAMARAJANAGAR DISTRICT - 571 442. …APPELLANT (BY SRI. RAJ KUMAR V.C, ADVOCATE) AND: 1. SRI. RAMAKRISHNA SINCE DEAD BY LRS 1(A). SMT. R VANAJAKSHI W/O LATE RAMAKRISHNA AGED ABOUT 76 YEARS, 2. SMT. R BHAGYA W/O VENKATACHALAMURTHY D/O LATE RAMAKRISHNA AGED ABOUT 57 YEARS, RESIDING AT MUTTALAVADI VILLAGE, M.K HUNDI POST, T NARASIPURA TALUK MYSORE DISTRICT - 571 110. Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 1(C). SRI. R VENKATESH S/O LATE RAMAKRISHNA AGED ABOUT 53 YEARS, 1(D). SRI. R. SHREENIVAS S/O LATE RAMAKRISHNA AGED ABOUT 48 YEARS, THE RESPONDENT NO.1(A), 1(C) AND 1(D) ARE RESIDING AT NO. 253/E , 8th CROSS, 'M' BLOCK, KUVEMPUNAGAR, NEAR BUS DEPO, MYSORE - 570 023. 2. SMT. SUSHEELAMMA W/O LATE VENKATASWAMY AGED ABOUT 68 YEARS, 3. SMT. RAJESHWARI D/O LATE VENKATASWAMY AGED ABOUT 39 YEARS, 4. SRI. NATARAJ S.O LATE VENKATASWAMY AGED ABOUT 37 YEARS, THE RESPONDENT NO.2, 3 AND 4 ARE ARE PRESENTLY RESIDING AT C/O BHANU, NO. 132/1, 2nd MAIN ROAD, 8th CROSS, OPPOSITE JANATA SCHOOL CHAMARAJPET, BANGALORE - 560 018. 5. SRI. R. RAMASWAMY S/O LATE RANGAIAH, SINCE DEAD BY LRS - 3 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 5(A). SMT. VEDAVATHI W/O LATE R. RAMASWAMY, AGED ABOUT 65 YEARS, 5(B). SRI. CHANDRASHEKAR R S/O LATE RAMASWAMY, AGED ABOUT 40 YEARS, 5(C). SRI. ANIL KUMAR R S/O LATE RAMASWAMY AGED ABOUT 38 YEARS, 5(D). SRI. MOHAN KUMAR R S/O LATE R RAMASWAMY AGED ABOUT 36 YEARS, 5(E). SRI. MURALIDHAR R S/O LATE RAMASWAMY AGED ABOUT 34 YEARS, THE RESPONDENT NO. 5(A) TO 5(E) ARE RESIDING AT NO. 18, "SRI. GANDA", 14th CROSS, MUNESHWARANAGAR, ULLAL MAIN ROAD, BANGALORE - 560 056. 6. SMT. RUKMINIYAMMA W/O SRI. S MALLESH, AGED ABOUT 66 YEARS, RESIDING AT NO. 10, 10th CROSS, 2nd PHASE, NISARGA LAYOUT, NEAR ANNAPORNESHWARI TEMPLE ABBIGERE, BANGALORE - 560 090. - 4 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 7. SMT. SARASWATHAMMA W/O SRI. NAGARAJ SINCE DEAD BY LRS 7(A). SMT. NIRMALA N D/O LATE SARASWATHAMMA AGED ABOUT 54 YEARS, 7(B). SRI. SHEKAR R N S/O SRI. NAGARAJA AGED ABOUT 49 YEARS, 7(C). SRI. JAGADEESH N S/O SRI. NAGARAJA AGED ABOUT 45 YEARS, THE RESPONDENT NO.7(A) TO 7(C) ARE RESIDING AT NO. 144, UAS LAYOUT, 2nd CROSS, RMV 2nd STAGE, SANJAYNAGAR BANGALORE - 560 094. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AN DECREE DATED 05.12.2022 PASSED IN RA NO.375/2021 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU. DISMISSING APEPAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 03.06.2013 IN OS NO.7/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, T. NARASIPURA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Raj Kumar V.C., learned counsel for the appellant. 2. Though the office has raised objections with regard to non-stating the correct address of respondent No.1, the appeal can be disposed of without adverting further consideration as to issue of notice to respondent No.1. 3. Appellant is defendant No.5 before the Trial Court and he is challenging the validity of the judgment and decree passed in O.S.No.07/2009 dated 03.06.2013 on the file of the Senior Civil Judge & JMFC at T. Narasipura, which was filed for partition and separate possession and decreed in favour of the plaintiffs which was confirmed in RA No.375/2021 by II Additional District and Sessions Judge, Mysuru by judgment dated 05.12.2022. 4. Facts in brief which are utmost necessary for disposal of the appeal are as under: - 6 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 Plaintiffs filed a suit for partition and separate possession seeking 2/6th share in the following properties hereinafter referred to as suit properties: "Item No.1: Land bearing Sy.No.80, situated at Hosa Malangi Village, Kollegal Taluk, Chamarajanagar District, comprising 2 acres 46 cents and bounded on the East by : Land belonging to Sri Chinnaswamy West by : Land belonging to Sri Shivanappa North by : Road South by : Land belonging to Sri Nagaraju Item No.2: Land bearing Sy.No.242, situated at Malangi Village, Talkad Hobli, T. Narasipura Taluk, Mysore District, comprising 4 acres 28 guntas and bounded on the East by : Land belonging to a resident of Malangi Village West by : Land belonging to a resident of Malangi Village North by : Land belonging to Sri Nanjundaiah South by : Border of Malangi Village And Land comprising 1 acre 05 guntas in the above Survey Number which was acquired by Government for formation of road and the compensation amount payable on the said acquisition. Item No.3: Country Tiled House along with vacant space measuring 30 feet x 80 feet, situated at Kaniyan Beedi, Malangi Village, Kollegal Taluk, Chamarajanagar District and bounded on the East by : Private Property West by : Private Property North by : House belonging to Sri Hutchappa South by : Road" - 7 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 5. In the suit, defendant Nos.1 to 6 failed to appear before the Trial Court and they were placed ex-parte. 6. The learned Trial Judge thereafter recorded the evidence of the plaintiffs and raised necessary points and decreed the suit of the plaintiffs by granting 2/6th share in favour of plaintiff Nos.1 and 2. 7. A belated appeal came to be filed before the First Appellate Court in RA No.375/2021. There was a delay of 08 years 151 days in filing the said appeal. No doubt, an application came to be filed under Section 5 of the Limitation Act, to condone the huge delay of 08 years 151 days in filing the appeal. 8. The application was seriously opposed by the plaintiffs by filing the written objection and thereafter, learned Judge in the First Appellate Court held an enquiry on the said application. 9. In order to substantiate the reasons for delay, appellant got examined himself as P.W.1 and also examined a witness by name Nagaraju D., in support of his case as P.W.2. - 8 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 As against the same, respondent No.1(c) got examined as R.W.1. 10. In the evidence of P.W.1, it has been elicited that notice issued by the Advocate was not served on the appellant and he has no knowledge about the retirement of the Advocate from the case and therefore, he did not pursue the suit. Whereas in the judgment of the Trial Court, it has been categorically stated that defendant Nos.1 to 5 were placed ex- parte. 11. Further, the Advocate who said to have represented the appellant before the Trial Court is not examined as a witness on behalf of the appellant before the Trial Court to condone the huge delay of 08 years 151 days. 12. The reasons assigned on behalf of the appellant that there was a problem with his eye sight and because of the old age, he had several other ailments. Therefore, he could not file the appeal in time is contradictory to the contentions taken by him that he was not at all knowing the result of the suit on account of the Advocate without informing him having retired from the said case. - 9 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 13. Even otherwise to support the illness of the appellant, no material documents are placed on record. 14. Under such circumstance, the huge delay of 08 years 151 days in filing the appeal is rightly not condoned by the First Appellate Court by following the principles of law enunciated by the Hon'ble Apex Court in the case of Yamuna Expressway Industrial Development Authority Vs. Vinodhsahni reported in AIR 2021 NOC 392 and AIR 1996 SC 1623, AIR 2012 SC 1506, AIR 2012 SC 1093. 15. Learned counsel for the appellant being aggrieved by the same has preferred the present appeal and requests the Court to afford an opportunity for the defendants to contest the suit. 16. Taking note of the fact that the First Appellate Court bestowed its best attention as to the reasons assigned for condoning the huge delay was not sufficient reasons and rejecting the appeal on the ground of delay is thus justified. 17. Moreover, what has been granted by the Trial Court in the decree is 2/6th share in the suit property. - 10 - HC-KAR NC: 2025:KHC:34678 RSA No. 402 of 2023 18. In other words, defendants have also got a share in the suit property. Equity if any can be a subject matter of enquiry before the Final Decree Proceedings. 19. Reserving the appellant to urge all such equitable grounds in the pending final decree proceedings, this Court is of the considered opinion that appeal does not merit for further consideration. 20. Accordingly, the following: ORDER Appeal is dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 45 CT: BHK