Puttawwa vs Devappa

H.G. Ramesh, J.—This second appeal is by some of the defendants. By the impugned judgment, the first Appellate Court has declared that the plaintiff and defendant Nos. 5 and 6 (respondents herein) are together entitled for 1/3rd share in the suit properties. There is a delay of Three years and eleven months (1431 days) in filing this appeal. I have heard the learned counsel appearing for the parties and perused the affidavit dated 10th January 2014 of appellant No. 3 filed in support of the application-I.A. No. 1/2014 filed for condonation of the delay in filing the appeal and also perused the statement of objections dated 25.09.2014 and the counter affidavit dated 25.11.2014 of respondent No. 1. As stated above, there is a delay of 3 years and 11 months in filing this appeal. Learned counsel appearing for the appellants, in support of condonation of the delay in filing this appeal, relied on two judgments of the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and Manoharan Vs. Sivarajan and Others, . I have examined the matter in the light of the said judgments.

The cause shown for the delay of 3 years and 11 months in filing the appeal is stated in para 3 of the aforesaid affidavit of appellant No. 3 which reads as follows:

"3) I state that my father i.e., Original Defendant No. 1 was looking after the case and I was not party to the original suit. He died during the pendency of the appeal and only after his death myself and Appellant No. 2 to 6 came on record, but at that time there was drought in the village and since the suit properties are dry agriculture lands totally depending on rain for the yield. The suit lands became barren and the family of the appellants could not earn their livelihood therefore to earn their livelihood all the appellants, had shifted to Maharashtra. In the meanwhile the appellants had lost contact with their counsel. The appellants were unaware of the impugned judgment and decree until the notices in FDP were issued which was communicated to these appellants by the neighbours in village. After much difficulty we came to our village and tried to understand the consequences of the impugned judgment and decree. As the finding on Will was in our favour we thought that the judgment is in our favour though the appeal was allowed and instructed our counsel to appear in the case to protect our interest and went back to Maharashtra to earn our livelihood, but there was some miscommunication between ourselves and our counsel which resulted in not preferring the appeal. As soon as we realised the fact that the judgment and decree impugned herein is against us we again contacted our counsel and advised him to file appeal. Some time was also spent in arranging for the finance for preferring this aforementioned appeal. Therefore the delay caused is not intentional but due to unavoidable circumstances which were beyond our control"

In the counter-affidavit, it is stated at para Nos. 3 to 38 that a criminal case had been filed against appellant Nos. 1 to 5 and they had appeared before the criminal Court at Navalgund, Dharwad District, on various dates after passing of the judgment impugned in this appeal and before filing of this appeal and therefore, it is submitted by the counsel for the respondents that the cause shown for the delay, namely that the appellants had been to Maharashtra State to eke out their livelihood is false.

The judgment impugned in this appeal is dated 13.08.2009 and this appeal is filed on 07.10.2013. The order sheet of the criminal Court at Navalgund produced along with the statement of objections would clearly show that appellant Nos. 1 to 5 had appeared before the criminal Court at Navalgund in Dharwad district on several dates between passing of the impugned judgment and filing of this appeal. Hence, the cause shown namely, that the appellants had been to Maharashtra State to eke out their livelihood cannot be accepted.

The application filed for condonation of the delay of 3 years and 11 months in filing this appeal is accordingly dismissed. Consequently, the appeal also stands dismissed. In view of dismissal of the appeal, I.A. Nos. 2 and 3 of 2014 also stand dismissed.

Appeal dismissed.