Karnataka High Court
Smt Gayathri Marakalthi vs Smt Rathi Marakalthi on 17 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:20805
RSA No. 1288 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1288 OF 2022 (PAR)
BETWEEN:
1. SMT. GAYATHRI MARAKALTHI,
AGED ABOUT 60 YEARS,
W/O LATE LAXMAN MARAKALA,
R/AT MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST 576101.
2. SRI PRADEEP MARAKAL,
AGED 39 YEARS,
S/O LATE LAXMAN MARAKALA,
R/AT MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
Digitally signed UDUPI TALUK AND DIST 576101.
by DEVIKA M
Location: HIGH 3. SMT JYOTHI @ PALLAVI MARAKALTHI,
COURT OF
KARNATAKA AGED 36 YEARS,
D/O LATE LAXMAN MARAKALA,
R/AT MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST 576101.
4. SMT. PAVITHRA MARAKALTHI,
AGED 34 YEARS,
D/O LATE LAXMAN MARAKALA,
R/AT MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST 576101.
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5. SRI DILIEEP MARAKAL,
AGED 32 YEARS,
S/O LATE LAXMAN MARAKALA,
R/AT MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST 576101.
6. SMT. CHAITHRA MARAKALTHI,
AGED 29 YEARS,
D/O LATE LAXMAN MARAKALA,
R/AT MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST 576101
...APPELLANTS
(BY SMT. THANIMA BEKAL, ADVOCATE FOR
SRI. HAREESH BHANDARY T.,ADVOCATE)
AND:
1. SMT. RATHI MARAKALTHI,
AGED 55 YEARS,
D/O LATE GOWRI MARAKALTHI,
R/AT GOWRI NIVAS,
MUNDADY, KADOOR VILLAGE AND POST,
UDUPI TQ AND DIST 576101.
2. SMT. RAJESHWARI,
AGED 54 YEARS,
D/O LATE GOWRI MARAKALTHI,
R/AT GOWRI NIVAS,
MUNDADY, KADOOR VILLAGE AND POST,
UDUPI TQ AND DIST 576101.
3. SMT. MANOHAR SUVARNA,
AGED 51 YEARS,
S/O LATE GOWRI MARAKALTHI,
R/AT SATHYADEVIATHE HOUSE,
NEAR REVANTH FARM HOUSE,
SANOOR VILLAGE,
KARKALA TALUK 576101.
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RSA No. 1288 of 2022
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4. SMT. RAMANI,
AGED 48 YEARS,
D/O LATE MOHANDAS SUVARNA,
DAUGHTER IN LAW OF GOWRI MARAKALTHI,
R/AT YAKSHINI NAGAR,
CHANTHAR VILLAGE,
BRAMHAVARA POST,
UDUPI TQ AND DIST 576101.
5. SRI PRAVEEN,
AGED 27 YEARS,
S/O LATE MOHANDAS SUVARNA,
GRAND CHILDREN OF GOWRI MARAKALTHI,
R/AT YAKSHINI NAGAR,
CHANTHAR VILLAGE,
BRAMHAVARA POST,
UDUPI TQ AND DIST 576101.
6. SMT. SUMANA,
AGED 24 YEARS,
S/O LATE MOHANDAS SUVARNA,
GRAND CHILDREN OF GOWRI MARAKALTHI,
R/AT YAKSHINI NAGAR,
CHANTHAR VILLAGE,
BRAMHAVARA POST,
UDUPI TQ AND DIST 576101.
7. SMT. K. JALAJA,
AGED ABOUT 54 YEARS,
D/O LATE PANIYA MARAKALTHI AND
NARAYANA MARAKALA,
R/AT MARTHUSHREE NILAYA,
MOGAVEERE PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST 576101.
8. SUDHAKAR MARAKALA,
AGED 61 YEARS,
S/O LATE PANIYA MARAKALTHI AND
NARAYANA MARAKALA,
R/AT MARTHRUSHREE NILAYA,
MOGAVEERA PETE,
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PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
SRI BHASKAR MARAKALA,
UDUPI TALUK AND DIST,
(HIS LRS ARE ALREADY ON RECORD)
9. SRI K. GUNAKARA,
AGED 57 YEARS,
D/O LATE PANIYA MARAKALTHI AND
NARAYANA MARAKALA,
R/AT MATHRUSHREE NILAYA,
MOGAVEERA PETE
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
10. SMT. MALINI,
AGED 55 YEARS,
D/O LATE PANIYA MARAKALTHI AND
NARAYANA MARKALA,
R/AT MATHRUSHREE NILAYA,
MOGAVEERA PETE
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
11. SMT. SHALINI,
AGED 53 YEARS,
D/O LATE PANIYA MARAKALTHI AND
NARAYANA MARKALA,
R/AT MATHRUSHREE NILAYA,
MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
12. SMT. MOHINI,
AGED 49 YEARS,
D/O LATE PANIYA MARAKALTHI AND
NARAYANA MARKALA,
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RSA No. 1288 of 2022
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R/AT MATHRUSHREE NILAYA,
MOGAVEERA PETE,
PEJAMANGOOR VILLAGE,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
13. SMT. GIRIJA MARKALATHI,
AGED 66 YEARS,
W/O LATE MUTTA MARKALAA,
R/AT CHAGRIBETTU,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
14. SMT. SHANTHA MARAKALTHI,
AGED 42 YEARS,
D/O LATE MUTTA MARAKALA AND
GIRIJA MARAKALTHI,
R/AT CHAGRIBETTU,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
15. SMT. SHYAMALA MARAKALTHI,
AGED 40 YEARS,
D/O LATE MUTTA MARAKALA AND
GIRIJA MARAKALTHI,
R/AT CHAGRIBETTU,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
16. SMT. USHA MARAKALTHI,
AGED 37 YEARS,
D/O LATE MUTTA MARAKALA AND
GIRIJA MARAKALTHI,
R/AT CHAGRIBETTU,
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
17. SMT. ASHA MARAKALTHI,
AGED 43 YEARS,
D/O LATE MUTTA MARAKALA AND
GIRIJA MARAKALTHI,
R/AT CHAGRIBETTU,
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RSA No. 1288 of 2022
HC-KAR
KOKKARNE POST,
UDUPI TALUK AND DIST-576101.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 16.03.2022
PASSED IN RA.No.24/2018 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, UDUPI, DISMISSING THE APPEAL FILED
AGAINST THE JUDGMENT AND DECREE DATED 23.01.2006
PASSED IN OS No.108/2005 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE (SR.DN) UDUPI.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for consideration of
I.A.No.1/2024 for condonation of delay of 80 days in
filing the second appeal along with the appeal. The first
appeal was dismissed on the ground that there was a
delay of 12 years 7 months 14 days and the same has
not been explained by the appellants herein.
2. The factual matrix of the case of the plaintiffs
before the Trial Court is that the plaintiffs have filed the
suit for the relief of partition and separate possession of
1/5th share in plaint 'A' and 'B' schedule properties from
the defendants. The case of the plaintiffs is that the first
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defendant's mother Bommi Marakalti was in possession
and enjoyment of immovable properties of Pejemangoor
village of Udupi Taluk. After the death of Bommi
Marakalti, defendant No.1 along with her children has
been in joint possession and enjoyment of the said
property. The defendant No.1 applied Form No.7 for
grant of occupancy right in respect of the said property
for and on behalf of her children. The Land Tribunal
granted occupancy right by order dated 31.07.1981 in
favour of defendant No.1. The item Nos.1 to 5 are the
said properties granted to defendant No.1. Out of the
children of defendant No.1, Narayan Markal died
intestate in the year 2000 leaving behind plaintiff Nos.1
to 5 and defendant No.4 as his legal representatives.
The defendant No.1 and her children are also in
possession and enjoyment of about 8 cents of land in
Sy.No.48/1B item No.6 of the plaint 'A' schedule
property. The said property is adjacent to the properties
enjoyed by defendant No.1 and her children. In the said
property, there is a residential house bearing panchayat
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door No.2/77, Hattikottige, well, coconut trees and fruit
bearing trees.
3. It is the case of the plaintiffs that when the
plaintiffs applied for certified copy of the RTC in the
second week of September 2005, they came to know
that defendant No.3 by making false representation
managed to get the said property granted in his name. The
saguvali chit issued in favour of defendant No.3 does not
confirm exclusive right, title and interest in his favour.
Inspite of the grant order, the property has been in joint
possession and enjoyment of defendant No.1 and her
children. Subsequently, they also came to know that
defendant No.3 has managed to get a registered settlement
deed dated 03.06.2004 executed by defendant No.1 to settle
Sy.No.56/5 Nanja land measuring 42 cents in favour of
defendant No.3. The execution and validity are not admitted
by the plaintiffs and the said document is not binding on
them. The plaintiffs also came to know that defendant No.1
appears to have created charge in respect of item Nos.3, 4
and item No.1 and Sy.No.47/3 to the extent of 78 cents to
Netravati Grameen Bank of Kokkarne Branch. The defendant
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No.1 was not competent to create any charge. Without the
joinder of co-owners, the said charge or any alienation is not
valid and binding on them. The debt incurred on the charge
of the said properties is not utilized for the benefit of
defendant No.1 and her children and defendant No.3 has
made use of the proceeds of the loan for his own benefit i.e.,
construction of a house in his own property. The plaintiffs
further submit that defendant No.3 is educated and an active
politician and influential. The defendant No.1 who is not
keeping well for the last three and half years is under the
control of defendant No.3 and he is in a possession to
dominate defendant No.1 in the matter of getting settlement
deed in creation of the charge.
4. In pursuance of the suit summons, defendant
Nos.1, 2 and 4 to 6 are placed exparte. The defendant No.3
appeared through his counsel, but he did not file the written
statement inspite of giving opportunity. Hence, the
plaintiffs have led the evidence and the Trial Court
having considered the material available on record,
granted the relief of partition in favour of the plaintiffs in
respect of the suit schedule property and comes to the
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conclusion that the settlement deed has not been proved
by filing the written statement.
5. Being aggrieved by the said judgment, an
appeal is filed in R.A.No.24/2018 after 12 years 7 months
and 14 days. The First Appellate Court considered the
matter, since an application I.A.No.3 was filed under
Order 41 Rule 27 of CPC as well as application I.A.No.2
was filed for condonation of delay of 12 years 7 months
14 days invoking Section 5 of the Limitation Act. Having
considered the grounds urged in the appeal as well as
the applications filed under Order 41 Rule 27 of CPC and
Section 5 of the Limitation Act, the First Appellate Court
answered point No.1 in the affirmative allowing I.A.No.3
and dismissed I.A.No.2 and consequently the appeal was
also dismissed.
6. The reasoning assigned for the delay in filing
the appeal for a period of 12 years is that the advocate
who appeared for their father before the Trial Court has
not filed the written statement on behalf of their father
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and hence the Trial Court was pleased to decree the suit.
The appellant No.2 in his contention has stated that his
father was neither aware of the consequences nor
disclosed about the pendency of the suit to him or other
appellants. It is contended that recently in May 2018,
they received the notice regarding final decree
proceedings from the Trial Court and then his counsel
informed them about the suit and after collecting the
copy of the judgment and decree, filed the present
appeal.
7. The Appellate Court also secured the records
of the Trial Court and in paragraph No.26 of the
judgment taken note of that before the Trial Court,
defendant No.3 appeared through counsel Sri MMS on
17.10.2005 and the Trial Court adjourned the case to file
the written statement. The defendant No.3 was
unrepresented on 16.11.2005. Noting that written
statement was not filed, the Trial Court adjourned the
case to 15.12.2005 and thereafter, the plaintiffs'
evidence was recorded. In view of the non-filing of the
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written statement and after recording the evidence of
P.W.1, the Trial Court considered the matter on merits.
The Appellate Court having considered the material
available on record, particularly O.S.No.108/2005, comes
to the conclusion that the father of these appellants was
represented through counsel and remained
unrepresented and not filed the statement or objections.
The First Appellate Court comes to the conclusion that
the very contention of the appellants that they were not
having the knowledge about the suit and consequence of
the suit cannot be accepted when there is a delay of 12
years 7 months and 14 days and the same is not
properly explained and dismissed the appeal on the
ground of delay.
8. Being aggrieved by the judgment of the Trial
Court and the First Appellate Court, the present second
appeal is filed before this Court.
9. The learned counsel for the appellants before
this Court would vehemently contend that both the
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Courts have committed an error in granting the relief of
partition and dismissed the appeal, inspite of there was a
settlement deed in favour of their father. The learned
counsel also contend that the plaintiffs were not in joint
constructive possession of the schedule property along
with the defendants and the same has not been
considered by the Trial Court. Hence, the learned
counsel would contend that the Courts below have
committed an error in granting the relief of partition in
respect of the suit schedule property and also committed
an error in dismissing the appeal considering the delay of
12 years 7 months and 14 days and hence this Court has
to admit the appeal and frame substantial question of
law.
10. Having heard the learned counsel for the
appellants and also on perusal of the material available
on record, it is not in dispute that in the original suit the
appellants' father appeared through an advocate and
admittedly, not filed the written statement and not
contested the matter and the suit was disposed of in the
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year 2006. Being aggrieved by the said order, an appeal
was filed in 2018 and there was a delay of 12 years 7
months 14 days in filing the appeal. It is not the case of
the appellants that as on the date of disposal of the suit,
the father was not alive. It is only contended that the
father was not having the knowledge about the
consequence of the suit and the counsel also did not
inform the same. The said contention cannot be a
ground to condone the delay when there is an inordinate
delay of 12 years 7 months 14 days in filing the appeal
and the delay has not been properly explained. The
allegation is made against the counsel and the
appellants' father. Even the appellants did not verify
with the advocate who was engaged before the Trial
Court or with the father. The suit was filed in 2005 and
the same was decreed on 23.01.2006 and the appeal
was filed in 2018 after lapse of 12 years. The delay of 12
years was not on the health ground, but it was
contended that they were not having the knowledge and
the consequence of the decree. When the counsel was
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engaged in the suit, they cannot contend that the
dismissal of the suit was not informed and nothing is
placed on record that they also made efforts before the
Trial Court to enquire with regard to the status of case in
O.S.No.108/2005. When such being the case, I do not
find any ground to admit the appeal and frame
substantial question of law. The Appellate Court rightly
dismissed the appeal on the ground of delay of 12 years
7 months 14 days, since the same is not explained
properly and sufficient cause is not shown.
11. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS,MD
