NARASIMHA @ NARASIMAIAH Vs. S. JAGADISH

JUDGEMENT

(1.) I.A. No. 1 of 2013 is filed by the appellants to condone the delay of 52 days in preferring this second appeal. The affidavit accompanying the application is sworn to by the third appellant who claims to be a Junior Engineer (Electrical) in the Irrigation Department. The deponent states that he is the 3rd appellant from out of twelve appellants and that all of them instituted O.S. No. 30 of 2000 for recovery of possession of the suit Schedule 'A' property, being legatees under the Will executed by G. Manjappa, their uncle - an expropriated ryot of Sharavathi Valley Hydel Project, who was granted the suit schedule property on payment of upset price and that the testator having died in the year 1975, the defendant had no manner of right, title and interest over the 'B' Schedule property, though he claimed to have purchased the same under a registered sale deed of the year 1993, allegedly executed by G. Manjappa. It is further stated that the judgment and decree dated 31-5-2011 of the Trial Court dismissing the suit when carried in R.A. No. 177 of 2011, was dismissed by judgment and decree dated 15-4-2013. Certified copy of the said judgment and decree, it is said was supplied by the local Advocate on 27-4-2013 and the appeal was required to be preferred by 26-7-2013, to fall within the period of limitation. According to the deponent, he works in the Irrigation Department and all his brothers though in joint are living separately due to their avocation and after he came to know of the dismissal of the appeal, since none of them were familiar with an Advocate at Bangalore, requested the local Advocate to contact an Advocate at Bangalore and solicit advice about the feasibility of filing the second appeal. That local Advocate, it is said, agreed to do the exercise and asked him to meet him after two weeks, whereafter, they met the Advocate in the second week of August 2013, whence were informed to send photocopy of the judgment and decree of the lower Appellate Court and were awaiting communication. The deponent further states that he could not immediately go to the local Advocate and meet him and it was only in the last week of August 2013, the local Advocate asked him to go to Bangalore with all papers, where afterwards he sent a relative to Bangalore along with records to furnish the same to Advocate on 10th September, 2013. Hence, the delay of 52 days in filing the appeal. Heard learned Counsel for applicants, who reiterates the averments set out in the affidavit. Apparently there are twelve appellants/applicants. However, the affidavit is that of the third appellant alone, who claims to work as a Junior Engineer in the Irrigation Department. If he was unable to take steps to file appeal in time, it is not known why eleven others did not evince interest to file the appeal in time. Sufficient cause when not shown by the other appellants, it is not possible to accept the plea of the third appellant that he could not prefer appeal within time. Every day's delay is not explained. This appeal deserves to be dismissed, since negligence, inaction and lack of bona fides is attributable to the appellants.

(2.) Having had a glimpse at the common judgment and decree dated 31-5-2011 in O.S. Nos. 30 and 31 of 2000, dismissing the suits and the common judgment and decree dated 15-4-2013 in R.A. Nos. 177 and 178 of 2011 of the Fast Track Court, Bhadravathi, recording concurrent findings of fact, that plaintiffs failed to establish the identity of the suit Schedule 'A' property as the very same property granted to the testator-deceased G. Manjappa, son of Dugappa, since neither the grant certificate nor the Will executed by Manjappa, bequeathing the said property in favour of the plaintiffs, recorded the description of the property, and that the land granted measuring 2 acres in Block No. 81; 2 acres in Block No. 82; 2 acres 7 guntas in Block No. 66 totally measuring 6 acres 7 guntas was from out of a total extent of 500 acres of Yedehalli Village, Bhadravathi Taluk, which is not identifiable. In the evidence; both oral and documentary, more appropriately the admission of P.W. 1-plaintiff that he did not know the correct location of the land granted to the grantee, Manjappa, the lower Appellate Court being the last Court to record findings of fact, having re-appreciated the evidence, recorded findings against the plaintiffs. The findings are neither perverse nor illegal calling for interference. Since no substantial question of law arises for decision making, on that score too, there is no merit in the appeal.