N. HEMAVATHI Vs. NANJUNDAPPA

JUDGEMENT

(1.) Heard the learned counsel for the appellant and also the learned counsel appearing for the respondents.

(2.) This appeal is filed against the dismissal of suit in O.S.No.13/2009, wherein a prayer is sought for the relief of partition and separate possession. Defendant No.1 appeared and filed a written statement that item Nos.2, 4 and 5 properties are his self acquired properties. The Trial Court framed the issues in view of the pleadings of the plaintiff and the defendants and first issue is with regard to weather the plaintiff proves that, suit schedule properties are the joint family properties? and the same is answered in the negative in coming to the conclusion that the same is not the joint family properties as contended by the plaintiff and also it is the contention of defendant No.1 that suit schedule properties item Nos.2, 4 and 5 are his self acquired properties and same is also answered in the negative and the Trial Court comes to the conclusion that plaintiff is not entitled for the relief of partition at this juncture and dismissed the suit. The dismissal of the suit is vide judgment dated 30th day of June 2014. This judgment was challenged in the year 2021. Filing the same on 13/9/2021 and registered on the very same day and there was a delay of 7 years 2 months in filing this appeal. In the condonation application, it is not particularly mentioned that on which date the appellant came to know that the daughters have share in the property of their father during lifetime of her father and in the cross-examination in connection with delay condonation application she admitted that she did not file the appeal when the judgment and decree was passed in O.S.No.13/2009 by knowing that she could not get share when father was alive and hence not filed the appeal in time.

(3.) The Appellate Court also given an opportunity to explain the delay and the plaintiff got examined herself as PW.1 and during the course of cross-examination admitted that judgment and decree was passed on 30/6/2014 and Appellate Court also having considered the reasons assigned in the application as well as during the course of evidence and also answer elucidate from the mouth of PW.1 comes to the conclusion that in the application not mentioned on which date the appellant came to know that the daughters have share in the property that too during lifetime of her father and appeal also filed on 13/9/2021 and in the cross-examination also admitted in respect of I.A.No.1 is concerned delay condonation that she did not file the appeal when the judgment and decree was passed in O.S.No.13/2009 by knowing that she could not get share during lifetime of her father and when such answer was given and the same is extracted in the order of the Appellate Court while rejecting the application and also taken note of in paragraph No.18 that there was a abnormal delay of 7 years 2 months and 13 days and the same has not been explained particularly while seeking for the condonation of delay and also an observation is made that not found any bona fide reasons to condone the unexplained and unreasonable abnormal delay and hence, dismissed the application. Being aggrieved by the said order, the present second appeal is filed before this Court.