- 1 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 29TH DAY OF MAY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.201459 OF 2025 (GM-CPC) BETWEEN: 1. SRI AYYAPPASWAMI @ AYYAPPAYYASWAMI S/O MALLAYYASWAMI, AGED ABOUT 44 YEARS, OCC: AGRICULTURE, R/O MASKI TOWN, TQ. MASKI, DIST. RAICHUR. 2. SRI SHIVKUMAR S/O SHANKRAPPA, AGED ABOUT 50 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O MASKI TOWN, TQ. MASKI, DIST. RAICHUR. …PETITIONERS (BY SRI SHRAVAN KUMAR MATH, ADVOCATE FOR SRI GURUBASAVA BASANNA, ADVOCATE) AND: SMT. AMBIKA W/O AMARAYYA, AGED ABOUT 38 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, R/O MASKI TOWN, TQ. MASKI, DIST. RAICHUR-585 401. …RESPONDENT (BY SRI B.K. HIREMATH, ADVOCATE) Digitally signed by LUCYGRACE Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF WRIT OF CERTIORARI BY QUASHING THE JUDGMENT PASSED IN M.A.NO.5043/2024 DATED 28.04.2025 BY THE COURT OF III ADDL. DISTRICT AND SESSIONS JUDGE AT RAICHUR SITTING AT SINDHANUR WHICH IS AT ANNEXURE-L AND ETC. THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R.NATARAJ ORAL ORDER (PER: HON'BLE MR. JUSTICE R.NATARAJ) The defendants in O.S.No.110/2024 pending consideration before the Senior Civil Judge, Lingasugur are before this Court in this writ petition, challenging an order dated 28.04.2025 passed by the III Additional District and Sessions Judge, Raichur, sitting at Sindhanur in M.A.No.5043/2024, by which applications filed (I.A. Nos.I and III) in O.S. No.110/2024 were allowed and defendant No.2 was restrained from forming plots in the suit schedule properties and from selling the schedule properties till the disposal of the suit. - 3 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 2. The suit in O.S. No.110/2024 was filed for declaration of title, for recovery of possession and for cancellation of the sale deed executed by defendant No.1 in favour of defendant No.2 in respect of the suit properties. The plaintiff claimed that the suit properties belonged to her paternal aunt Smt. Kallamma and that she bequeathed the same to the plaintiff in terms of a Will dated 30.05.2016. She later died on 05.01.2022 and that the plaintiff inherited the suit properties. She contends that defendant No.1 claimed that he was fostered by Smt. Kallamma and that after she died, he succeeded to the suit properties. She contends that defendant No.1 conveyed the suit properties to defendant No.2 and that the defendant No.2 got the same converted for non- agricultural residential use and is attempting to form a layout in the suit properties. She therefore, sought for declaration of her title based on the Will dated 30.05.2016 and sought for recovery of possession and also for setting aside the sale deed executed by defendant No.1 in favour - 4 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 of defendant No.2. Applications for interim injunction were filed to restrain the defendant No.2 from alienating or forming any plots in the suit properties. 3. The Trial Court granted an ex-parte order of injunction restraining the defendant No.2 from forming any layout or selling the sites formed therein. 4. The defendants entered appearance and filed I.A.No.II for vacating interim injunction. The defendants also filed objections to the applications filed by the plaintiff for interim injunction. In the affidavit accompanying the application for vacating the order of injunction, the defendants contended that the properties bequeathed in the Will were not the suit properties. It was also contended that as on the date of the Will, Smt. Kallamma had no valid title and possession of the suit properties and therefore, the Will executed would not help the plaintiff in any manner. - 5 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 5. The Trial Court after considering the contentions urged in the application for vacating the interim injunction, allowed the application filed by the defendants and vacated the order of injunction granted. Feeling aggrieved by the said order, the plaintiff filed M.A.No.5043/2024. The Appellate Court noticed that both defendant No.1 and the plaintiff were claiming title to the suit properties through Smt. Kallamma. The Appellate Court held that since the plaintiff claimed title to the suit properties in terms of the Will executed by Kallamma, the Trial Court was bound to decide whether the Will was genuine or not and whether defendant No.1 being the foster son of Kallamma had acquired any right, title or interest after the death of Kallamma. It also held that the plaintiff was the niece of Kallamma, while defendant No.1 claimed to be the foster son of Kallamma and hence, it held that the plaintiff being the nearest legal heir of Kallamma was entitled to inherit the suit properties and not the defendant No.1. Therefore, it held that the - 6 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 plaintiff had a fair chance of success in the suit and had made out a prima facie case. Consequently, it allowed the appeal and set aside the order passed by the Trial Court and allowed the applications filed by the plaintiff and restrained the defendant No.2 from forming plots in both suit properties and restrained the defendant No.2 from encumbering or alienating the suit properties till the disposal of the suit. 6. Being aggrieved by the said order, the defendants are before this Court in this writ petition. 7. Learned counsel for the petitioners/defendants submits that defendant No.2 had purchased the suit properties from defendant No.1 and had spent substantial sums of money for conversion of the land for non-agricultural residential use and also had obtained a plan from the competent authority. He contends that defendant No.2 would therefore be put to great loss and injury, if he is restrained from forming the layout or from selling the plots formed therein. He contends that the - 7 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 details of the properties mentioned in the Will shows that the properties allegedly bequeathed in favour of the plaintiff are not the properties which are the subject matter of the suit and therefore, the Appellate Court must have considered this question. 8. Learned counsel for the respondent/plaintiff, on the other hand contended that the only two properties that were left behind by Smt. Kallamma are the suit properties which were bequeathed to the plaintiff. Therefore, he contends that it is for the plaintiff to establish the lawful execution of the Will and defendant No.1, who claims to be a foster son, has no caveatable interest to deny the lawful execution of the Will. He contends that therefore, the Appellate Court was justified in granting the order of injunction. 9. I have considered the submissions of the learned counsel for the petitioners/defendants and the learned counsel for the respondent/plaintiff. - 8 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 10. The plaintiff claims to be the niece of Smt. Kallamma, who was the owner of the suit schedule properties. The plaintiff claimed that Kallamma executed a Will dated 30.05.2016 bequeathing the suit properties and that after the death of Kallamma, she had inherited the same. Defendant No.1, on the other hand claimed to be the nephew of Smt. Kallamma and that he was fostered by Smt. Kallamma and that after her death, he had succeeded the suit properties. Therefore, there is no dispute about the antecedent title of Smt. Kallamma to the suit properties. The question is whether Smt. Kallamma had bequeathed the suit properties to the plaintiff. If the answer to the above question is in the affirmative, then the plaintiff would succeed in the suit. In case the plaintiff failed to prove the lawful execution of the Will, the defendant No.1, who claims to be the nephew also stood a chance to succeed to an undivided share in the suit properties of Smt. Kallamma. Therefore, as rightly held by the Appellate Court, the plaintiff had made out a triable - 9 - HC-KAR NC: 2025:KHC-K:2767 WP No. 201459 of 2025 case and hence, an order of injunction had to follow to restrain the defendant No.2 from forming any layout or encumbering any plots formed therein. 11. In that view of the matter, no interference is warranted with in the impugned order. Hence, the writ petition is dismissed. 12. Any observation made in this writ petition shall not come in the way of the Trial Court deciding the suit on merits. Sd/- (R.NATARAJ) JUDGE LG List No.: 1 Sl No.: 25