PRAKASH Vs. THIMMAMMA

JUDGEMENT

(1.) THIS appeal is filed by the plaintiffs against the judgment and decree passed by the Prl. District Judge, Mandya, in R.A. No. 174/2005, dated 27th February 2008.

(2.) PLAINTIFFS filed suit in O.S. No. 39/1997 before the Prl. Civil Judge (Sr. Dn.) & JMFC, Srirangapatna, for partition and separate possession of suit schedule properties. The propositus of the family was one Patel Neelegowda. He had two sons viz., Patel Venkategowda and Puttegowda. Plaintiffs are the children of Patel Puttegowda, whereas defendants are the children of Patel Venkategowda. According to the plaintiffs, the suit schedule properties are in joint possession of Venkategowda and Puttegowda, But, according to defendants, there was prior partition in the year 1947. After hearing, the trial Court decreed the suit and held that plaintiffs and defendant No. 9 -wife of late Puttegowda, are jointly entitled to get half share in the suit schedule properties. Being aggrieved, defendants preferred appeal in R.A. No. 174/2005. The lower Appellate Court having taken note of the fact that based on palupatti Ex. D -3, several revenue entries have been made and that palupatti need not be compulsorily registered, allowed the appeal and dismissed the suit filed by the plaintiffs. As against which, this second appeal by the plaintiffs.

(3.) THE stand taken by the respondents is that there is delay of nearly two years in filing this appeal and on perusal of the verifying affidavit, there is no satisfactory explanation with regard to delay. In such a situation, the Apex Court held that Court cannot condone the appeal as it has no unbridled discretionary power. Apart from that, even the opportunity to cross -examine the witnesses has not been availed of by the plaintiffs and as such, the appeal is to be dismissed.