- 1 - NC: 2025:KHC:1555 MFA No. 676 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH MISCELLANEOUS FIRST APPEAL NO. 676 OF 2023 (CPC) BETWEEN: 1. JAYAMMA W/O MUNI NARASIMHAIAH D/O MUNIKADARAPPA AGED ABOUT 72 YEARS R/AT NO.26, 9TH MAIN R.K. LAYOUT, II STAGE BENGALURU SOUTH BSK II STAGE BENGALURU-560 070. …APPELLANT (BY SRI. M.S.VISHWANATH, ADVOCATE) AND: 1. KUMARA D/O LATE MOTAMMA AGED ABOUT 50 YEARS 2. KANTAMMA D/O LATE MOTAMMA AGED ABOUT 47 YEARS 3. ASHWATHA D/O LATE MOTAMMA AGED ABOUT 45 YEARS THE ABOVE 1 TO 3 ARE R/AT NO.17/1, 1ST MAIN, 33RD CROSS, NEAR WATER TANK, K.S.LAYOUT, BENGALURU-560 078. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1555 MFA No. 676 of 2023 4. KUPPASWAMY M., S/O LATE MUNIKADARAPPA AGED ABOUT 60 YEARS 5. MADDURAMMA W/O KUPPASWAMY M, AGED ABOUT 58 YEARS 6. RADHA D/O KUPPASWAMY M, AGED ABOUT 38 YEARS 7. MURALIDHAR K S/O KUPPASWAMY M, AGED ABOUT 35 YEARS 8. CHARAN M., S/O MURALIDHAR K, AGED ABOUT 10 YEARS, MINOR, REP. BY HIS NATURAL GUARDIAN FATHER SRI MURALIDHAR K. 9. KUM. DEEKSHITHA D/O MURALIDHAR K, AGED 14 YEARS, MINOR, REP. BY HIS NATURAL GUARDIAN FATHER SRI MURALIDHAR K. 10. K. KUMARASWAMY S/O KUPPASAMY M, AGED ABOUT 33 YEARS 11. VIKAS SAGAR S/O K. KUMARASWAMY, AGED ABOUT 6 YEARS, MINOR, REP. BY HIS NATURAL GUARDIAN FATHER SRI KUMARASWAMY, - 3 - NC: 2025:KHC:1555 MFA No. 676 of 2023 12. K. GEETHA D/O KUPPASWAMY M, AGED ABOUT 30 YEARS THE ABOVE 4 TO 12 ARE R/AT NO.17, 1ST MAIN 33RD CROSS, K.S.LAYOUT BENGALURU-560 078. 13. SMT. M. VENKATALAKSHMI W/O LATE M. RAMU AGED ABOUT 54 YEARS 14. MAMATHA R, D/O LATE M. RAMU AGED ABOUT 31 YEARS 15. MEENAKSHI D/O LATE RAMU, AGED ABOUT 30 YEARS 16. PAVAN KUMAR S/O LATE RAMU AGED ABOUT 27 YEARS 17. SMT. R. BHAVANI D/O LATE RAMU, AGED ABOUT 25 YEARS, THE ABOVE 13 TO 17 ARE R/AT NO.17, 1ST MAIN, 33RD CROSS, K.S.LAYOUT BENGALURU-560 078. 18. NAGARAJ S/O LATE MUNIKADARAPPA AGED ABOUT 61 YEARS 19. SMT. RATHNAMMA W/O NAGARAJ M, AGED ABOUT 48 YEARS - 4 - NC: 2025:KHC:1555 MFA No. 676 of 2023 20. HAREESH N., S/O NAGARAJ M, AGED ABOUT 30 YEARS 21. MISS. LALITHYA H, D/O HAREESH N, AGED ABOUT 4 YEARS MINOR, REP. BY HER NATURAL GUARDIAN FATHER HAREESH N., 22. KUMARA SAI MANOJ H, S/O HAREESH N, AGED ABOUT 2 YEARS, MINOR, REP. BY HER NATURAL GUARDIAN FATHER, HAREESH N, 23. SMT. JAYALAKSHMI N, D/O NAGARAJ M, AGED ABOUT 40 YEARS 24. SMT. MALA N, D/O NAGARAJ M, AGED ABOUT 38 YEARS THE ABOVE 18 TO 24 ARE R/AT NO.17/1, 1ST MAIN 33RD CROSS NEAR WATER TANK K.S. LAYOUT BENGALURU-560 078. 25. VENKATESHA M, S/O MUNIKADARAPPA AGED ABOUT 55 YEARS 26. SMT. MUNIYAMMA W/O VENKATESHA M, AGED ABOUT 50 YEARS - 5 - NC: 2025:KHC:1555 MFA No. 676 of 2023 27. SHANKAR V, S/O VENKATESHA M, AGED ABOUT 30 YEARS 28. SANVIK SHANKAR S/O SHANKAR V, AGED ABOUT 5 YEARS MINOR, REP. BY HIS NATURAL FATHER AND GUARDIAN SRI SHANKAR V. 29. DEEPIKA V, D/O VENKATESH M, AGED ABOUT 25 YEARS, THE ABOVE 25 TO 29 ARE R/AT NO.70, 33RD CROSS NEAR BDA PARK KUMARASWAMY LAYOUT BENGALURU-560 078. 30. MURTHY M, S/O MUNIKADARAPPA AGED ABOUT 49 YEARS 31. SUNIL M, S/O MURTHY M, AGED ABOUT 30 YEARS 32. CHANDAN S/O MURTHY AGED ABOUT 24 YEARS 33. SINDHU D/O MURTHY AGED ABOUT 19 YEARS THE ABOVE 30 TO 33 ARE R/AT NO.7, 33RD CROSS, NEAR 15F BUS STOP, KS LAYOUT, 1ST STAGE, GOWDANAPALYA - 6 - NC: 2025:KHC:1555 MFA No. 676 of 2023 BENGALURU-560 078. 34. A.N. BUILDERS NO.23, SUBHASH CHANDRA BOSE ROAD, BANASHANKARI STAGE-II BENDRE NAGAR, BENGALURU, KARNATAKA-560070 REP. BY PROPRIETOR, D. ANAND NAIDU, S/O LATE KANAMA NAIDU …RESPONDENTS (BY SRI. SANDESH KUMAR M., ADVOCATE FOR R1 TO R3; SRI B.KESHAVA MURTHY, ADVOCATE FOR R4, R5, R10, R18, R19, R20, R26, R27, R30, R32; SRI D.L.JAGADEESH, SENIOR COUNSEL FOR SMT.RAKSHITHA D.J., ADVOCATE FOR C/R34 ON I.A.NO.2; SRI V.B.SHIVAKUMAR, ADVOCATE FOR R13, R15 TO R17) THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 16.11.2022 PASSED ON I.A.NO.2 IN O.S.NO.1295/2022 ON THE FILE OF THE LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-70), REJECTING I.A.NO.2 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard learned counsel for the appellant and learned counsel for the respondent Nos.1 to 3, learned counsel for respondent Nos.4, 5, 10, 18, 19, 20, 26, 27 and 30 to 32, - 7 - NC: 2025:KHC:1555 MFA No. 676 of 2023 learned Senior counsel for caveator-respondent No.34 and learned counsel for respondent Nos.13 and 15 to 17. 2. This matter was heard in part earlier and after hearing learned counsel for the parties, this Court ordered to appoint a Court Commissioner to identify the property and the Commissioner has now filed a report before this Court and the same is available on record. 3. The factual matrix of the case of the appellant/plaintiff before the Trial Court in O.S.No.1295/2022 is that the plaintiff while seeking the relief of partition and separate possession in all the suit schedule properties by metes and bounds also sought the relief to declare that Joint Development Agreement dated 06.12.2021 is not binding on the plaintiff share and also declare that the Joint Development Agreement dated 06.12.2021 which is morefully described in prayer column No.19 ‘b’ and ‘c’ are not binding on the plaintiff and direct determination of mesne profits in respect of the suit schedule properties and also south for a temporary injunction restraining the Joint Development Agreement holder i.e., - 8 - NC: 2025:KHC:1555 MFA No. 676 of 2023 defendant No.34 from proceeding with construction in pursuance of the agreement dated 06.12.2021. 4. In both the plaint as well as in the application, it is contended that plaintiff and one late Motamma are daughters of late Munikadarappa. The defendant No.4-Kuppaswamy and late Ramu defendant No.18, defendant Nos.25 and 29 are sons of late Munikadarappa. The defendant Nos.1, 2, 3 and defendant No.19 are children of late Motamma and grand- children of late Munikadarappa. The defendant No.5 is the wife of defendant No.4, defendant Nos.6, 7, 10, 11 and 12 are the children of defendant No.4. The defendant Nos.8, 9 and 11 are the grand-children of defendant No.4, the defendant No.13 is wife of late M. Ramu and defendant Nos.14, 15, 16 and 17 are children of late Ramu. The defendant No.19 is the wife of defendant No.18 and defendant Nos.20, 23 and 24 are daughters of defendant No.18 and defendant No.21 and 22 are grand-children of defendant No.18. The defendant No.26 is the wife of defendant No.25. The defendant Nos.27 and 29 are the children of defendant No.25. The defendant No.28 is the grand-children of defendant No.25. The defendant Nos.31, 32 and 33 are the children of defendant No.30. - 9 - NC: 2025:KHC:1555 MFA No. 676 of 2023 5. It is contended that late Munikadarappa was the owner in possession of 2 acres of land in Sy.No.24 of Kadirenahalli Village, Uttarahalli Hobli, Bengaluru South Taluk. Out of the said 2 acres of land in Sy.No.24 of Kadirenahallli Village, the defendant Nos.25 to 33 have entered into a joint venture to develop land i.e., all that piece and parcel of immovable property in Sy.No.24, Khata No.71, measuring 10,004 sq.feet of converted land vide conversion order bearing No.B.DIS.ALNSR(S)10/91-92 in PID No.55-728-60 Padmanabhanagar, New Municipal No.60 situated at Kadirenahalli Village, Kumaraswamy Layout, adjacent to Revenue Layout Kadirenahalli, BBMP Ward No.55, Uttarahalli Hobli, Bangalore South Taluk, Bangalore now comes under the jurisdiction of BBMP, measuring East to West:262 sq.ft. and North to South: 42 sq.ft. morefully described in item No.2 and shall hereinafter be referred to as item No.2 of the suit schedule. It is also contended that defendant Nos.4 to 24 have entered into a joint venture to develop 19,184 sq.ft. which is morefully described in schedule item No.3 of the suit schedule of converted land with the builder by name A.N. Builders i.e., defendant No.34, behind the back of plaintiff to knock of the - 10 - NC: 2025:KHC:1555 MFA No. 676 of 2023 sad properties and to deprive the plaintiff of her legitimate share in the said property and the said 2 pieces of land is morefully described in the schedule to this plaint and shall hereinafter be referred to as the item Nos.2 and 3 of the suit schedule. It is further contended that plaintiff and defendant Nos.1 to 33 are also owners in joint possession of land measuring 4 acres of land in Sy.No.507 of Kodiyalakarenahalli Village, Bidadi Hobli, Ramanagara Taluk, Ramanagara District, and 2 acres 36 guntas of land in Sy.No.326/1 of Kodiyalakarenahalli Village, Bidadi Hobli, Ramanagara Taluk, Ramanagara District and 5 acres 24 guntas of land in Sy.No.325 of Kodiyalakarenahalli Village, Bidadi Hobli, Ramanagara Taluk, Ramanagara District and the said properties are morefully described in the schedule to this plaint and shall hereinafter be referred to as the suit schedule properties item Nos.4 to 6 respectively. 6. It is contended that suit schedule properties are ancestral joint family properties of the plaintiff and defendants. After the death of late Munikadarappa on 08.09.2004, the plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties as owners thereof. It is - 11 - NC: 2025:KHC:1555 MFA No. 676 of 2023 contended that plaintiff has been demanding her share in the suit schedule properties, since last one year and on 12.01.2022, when the plaintiff, as a final demand for partition requested the defendant Nos.4, 18, 25 and 30 to partition the suit schedule properties by metes and bounds and allot her share in the suit schedule properties, the defendant Nos.4, 18, 25 and 30 have refused to partition the suit schedule properties and now they are trying to alienate the suit schedule properties of the defendant Nos.4 to 33 and have entered into joint venture agreements with builders and may have sold some portion of item No.1 of the suit schedule property. Hence, contend that in pursuance of the Joint Development Agreement, if construction is made and property is sold, the plaintiff will be put to irreparable loss and injury and also contend that defendant No.34 having entered into Joint Development Agreement demolished the construction therein during the pendency of the suit and now trying to put up construction which would cause hardship and irreparable loss to the plaintiff. Hence, an order of temporary injunction has to be granted. - 12 - NC: 2025:KHC:1555 MFA No. 676 of 2023 7. In pursuance of the suit summons and application, defendant No.34 appeared and filed the written statement submitting that they had taken up construction on behalf of other defendants as it is based on Joint Development Agreement entered between this defendant with other defendants. Therefore, this defendant alone is not answerable. As such application is not maintainable and this plaintiff has no right over suit property as property purchased by Munikadarappa wherein suit item No.2 and 3 are all self- acquired properties vide sale deed dated 18.04.1980. It is also contended that as per Will dated 18.03.1998 which is a registered one, Rs.50,000/- has been paid by Munikadarappa, who has bequeathed the entire property in Sy.No.24 which has been converted long before it came within the limits of BBMP by his sons. This aspect of conversion and selling of certain portions by other defendants and sons of Munikadarappa is not questioned by plaintiff. Therefore, the application and suit is only frivolous to harass defendant No.34. The defendant No.34 submits that he is a Developer entered into a Joint Development Agreement has mobilized men and material, wherein hundreds of workers are working. This defendant has - 13 - NC: 2025:KHC:1555 MFA No. 676 of 2023 raised loans from his financiers. The gravity of the interim order sought is much more than mere order to prevent construction of the property to which other defendants have their right. Accordingly, seeks by considering comparative hardship and irreparable loss and to dismiss the application. 8. The others defendants have also filed their written statement and contend that they have entered into Joint Development Agreement in terms of the Will executed by Munikadarappa which was executed in the year 1988 and now only with an intention to make wrongful gain, filed the suit and inter alia sought for an order of temporary injunction. Hence, the plaintiff is not entitled for the relief of temporary injunction. 9. The defendant Nos.1 to 3, who are the daughters of Munikadarappa also filed written statement supporting the case of plaintiff and claims share over the suit schedule properties. The children of Motamma have filed the written statement reiterating the averments made in the plaint and also made the counter claim to declare that the suit schedule properties and counter claim properties are the joint family properties of the defendant Nos.1 to 3 and they are entitled to 1/7th share each - 14 - NC: 2025:KHC:1555 MFA No. 676 of 2023 and appoint Deputy Commissioner, as per Order 20 Rule 18 CPC to divide the joint properties which are described in the suit schedule and counter claim schedule properties and put them into possession of their respective shares by metes and bounds and grant permanent injunction restraining the defendant Nos.4 to 33 and grant such other relief, supporting the case of the plaintiff. 10. The Trial Court considering the pleadings of the parties, formulated the points whether the plaintiff has made out prima-facie case to allow I.A. under Order 39 Rule 1 and 2 CPC for temporary injunction, whether the plaintiff shows that the balance of convenience lies in her favour and whether the plaintiff shows that if I.A. is not allowed, she xwill be put to irreparable loss and hardship. 11. The Trial Court having considered pleadings of the parties, in paragraph No.14, observed that the Will is undisputed, there are alternatives available. The description of the suit properties is not proper. The plaintiff is claiming 1/7th share as a daughter and the same can be considered even if the construction is over. The specific boundaries to the suit - 15 - NC: 2025:KHC:1555 MFA No. 676 of 2023 schedule properties are not mentioned in the schedule. As such, the plaintiff’s relief is absurd. The Munikadarappa has specified the Will properties by metes and bounds. Therefore, the same is borrowed by defendants in Joint Development Agreement and the contentions of plaintiff are unreasonable. Accordingly seeks dismissal. 12. The argument of learned counsel for the plaintiff is also mentioned in paragraph No.16 and in paragraph No.17, Trial Court comes to the conclusion that the description and boundaries of the property in Sy.No.24 has not been mentioned therein and also given the reasons that Sy.No.24 conversion has been made in Khatha No.71 as per the order of Deputy Commissioner. Therefore, the suit schedule property would be item No.1 and granting of injunction not to construct actually affects the right of third person seems reasonable. In fact, as per the certified copy of the order passed in O.S.No.3907/2022 on the board of CCH-32 an order of injunction has been passed directing defendant No.21 therein not to put up construction on the suit item. Therefore, the Court has passed an order on 12.08.2022 which is an exparte order. The Trial Court having considered the order passed, in paragraph No.18, comes to the - 16 - NC: 2025:KHC:1555 MFA No. 676 of 2023 conclusion that property was converted in the year 1982 itself. In the Joint Development Agreement, schedule of the property is not mentioned is the contention raised by the learned counsel for plaintiff. However, in Page No.54 of the Joint Development Agreement, schedule has been given. In paragraph No.19, the Trial Court also comes to the conclusion that in the absence of document placed by the plaintiff to recognize the existence of suit schedule property, as per the plaint pleading, this Court cannot grant temporary injunction concerning the property on which defendant No.34 is proceeding with construction and also referring certain judgments, comes to the conclusion that on going through the material on record, the balance of convenience and prima facie case cannot be considered being present in favour of the plaintiff, since the identification of the property is not made out and there are multiple portions of property in Sy.No.24. Without any specific description of the portions as per the demarcation made by the revenue authorities, this Court feels that the comparative hardship lies in favour of defendant No.34 and rejected the same. Being aggrieved by the said order of - 17 - NC: 2025:KHC:1555 MFA No. 676 of 2023 the Trial Court, the present miscellaneous first appeal is filed before this Court. 13. Learned counsel for the appellant/plaintiff in his argument would vehemently contend that the Trial Court committed an error in rejecting the application and the suit is filed for the relief of partition. The appellant is the daughter of Munikadarappa is not in dispute and the other daughter is also no more and her legal representatives are brought on record and she is also not party to the Joint Development Agreement. It is also contended that plaintiff was not aware of any Will executed by Munikadarappa and respondent Nos.1 to 3 are the legal representatives of other sister. Learned counsel would vehemently contend that very Will is doubtful and also Court has to take note of the circumstances under which the document came into existence. Learned counsel would contend that in the said Will, kharab land is given in favour of the daughters and the same is managed by the sons, who in fact entered into Joint Development Agreement with the Developer i.e., defendant No.34. Learned counsel would contend that based on the alleged Will which came into existence in the year 1998, khatha was not obtained and as on the date of suit, there - 18 - NC: 2025:KHC:1555 MFA No. 676 of 2023 was no construction and when an attempt was made to put up construction, the plaintiff approached the Court seeking the relief of temporary injunction not to put up construction. Learned counsel also would vehemently contend that, inspite of suit is filed by the plaintiff, defendant No.34 proceeded to put up construction in item Nos.2 and 3 of the suit schedule properties and contend that item Nos.4, 5 and 6 are the properties which are in existence in Ramanagar District. Learned counsel would contend that Joint Development Agreement came into existence for the area of 29,000 sq.ft. and if temporary injunction is not granted, the plaintiff will be put to irreparable loss. Learned counsel would vehemently contend that when the suit is filed for the relief of partition and defendants are not disputing the fact that the property belongs to family of plaintiff and defendants, the very approach of the Trial Court that properties are not identifiable is erroneous approach and on the other hand, accepted the case of the defendants with regard to the identity of the properties and proceeded to come to a conclusion that the defendants made out a prima facie case and balance of convenience and even the Trial Court comes to the conclusion that properties are not - 19 - NC: 2025:KHC:1555 MFA No. 676 of 2023 identifiable. When such reasoning is given that properties are not identifiable, permitted the defendants Nos.34 to put up consideration which is nothing but an erroneous order passed by the Trial Court. 14. Per contra, learned counsel for the defendant No.34-Developer would vehemently contend that item Nos.2 and 3 are subject matter of the Joint Development Agreement. Learned counsel would vehemently contend that defendant No.34 has invested huge money and has put up construction. Learned counsel would contend that the area of Joint Development Agreement is 29,000 sq.ft. and also schedule ‘A’ to ‘E’ belongs to sons of Munikadarappa and the Will is also a registered Will. The plaintiff kept quiet till the construction has come up and now cannot contend that she will be put to irreparable injury. Learned counsel would contend that in item No.3, already construction has been put up and in terms of the Joint Development Agreement, 44 plots have come up in item No.3 of the schedule properties. In terms of the same, out of 52.5% of the Joint Development Agreement of Developer, 24 plots are allotted in favour of defendant No.34 and out of that, already 16 plots are sold and third party rights are created in - 20 - NC: 2025:KHC:1555 MFA No. 676 of 2023 favour of the prospective purchaser and owners have not sold the property till date and if construction is stopped, huge investment made by the Developer i.e., defendant No.34 will be affected and the same has to be taken note by the Trial Court while rejecting the application. Hence, learned counsel would contend that injunction cannot be granted. 15. Learned counsel for the respondent No.34/defendant No.34 in support of her argument relied upon judgment of this Court in NARASAMMA AND OTHERS VS. AKKAMMA AND OTHERS reported in 2019 SCC ONLINE KAR 3847 and brought to notice of this Court paragraph No.11 and also paragraph No.34, wherein discussion is made with regard to judgment of the Apex Court in MANDALI RANGANNA VS. T. RAMACHANDRA reported in (2008) 11 SCC 1 and the judgment in MOHD. MEHTAB KHAN VS. KHUSHNUMA IBRAHIM KHAN reported in (2013) 9 SCC 221 and even extracted paragraph No.14 of the judgment of the Apex Court in WANDER LIMITED VS. ANTOX INDIA (PRIVATE) LIMITED reported in 1990 SUPP SCC 727 and also brought to notice of this Court paragraph Nos.43 and 47, wherein discussion was made that the plaintiffs/appellants - 21 - NC: 2025:KHC:1555 MFA No. 676 of 2023 approached the Court belatedly after more than half of the construction is over and it indicates the conduct of the appellants. Hence, learned counsel would contend that the plaintiff kept quiet and even not pressed the application before the Trial Court with regard to not to alienate the property and even though this appeal is filed in the year 2023, not pressed the appeal for more than a decade and now, the appellant cannot contend that she would be put to irreparable loss, if injunction is not granted. 16. Learned counsel appearing for defendant Nos.15 to 17 i.e., the sons, who are parties to Joint Development Agreement would contend that application is filed under Order 39 Rule 1 and 2 CPC restraining the defendant No.34 from putting up construction and even application is filed not to alienate the same as not pressed before the Trial Court. Learned counsel would contend that Joint Development Agreement was entered into between the respondents and also joint Developer on 06.12.2021 and when Joint Development Agreement was entered in the year 2021 itself, they had the knowledge about the same. Learned counsel would contend that when this Court appointed the Court Commissioner for - 22 - NC: 2025:KHC:1555 MFA No. 676 of 2023 identification of the property, the appellant herself mentioned in the memo of instruction to identify the properties as regards the recitals of the Will and the Commissioner has also filed the report and in terms of the same, it is very clear that the properties allotted in favour of the respondents are only given for the construction as per the Joint Development Agreement and now they cannot contend that they are having right over the properties and inspite of having knowledge of the same, they have not questioned the Will and claim is made to make wrongful gain. The Commissioner also visited the spot and identified the properties and remaining property belongs to the family and the Court can consider granting 1/7th share, even if they are having right over the same. When the Will is filed before the Trial Court along with written statement and when there is no objection with regard to the Will, now they cannot contend that Will is disputed and surrounded with suspicious circumstances. 17. Learned counsel appearing for the respondent Nos.4, 5, 10, 18, 19, 20, 26, 27 and 30 to 32 also adopts the arguments made by the learned counsel for respondent Nos.13 and 15 to 17. Apart from that, learned counsel would contend - 23 - NC: 2025:KHC:1555 MFA No. 676 of 2023 that in Page No.5 of the Will, it is specifically mentioned that, out of 1 acre of land remaining, sites are allotted in favour of the daughters also i.e., 80 x 30 sq.ft. and other daughter is also given share i.e., plaintiff. When such properties are given in terms of the Will, now cannot contend that they are not having knowledge about the Will and they are not entitled for 1/7th share. 18. Learned counsel appearing for respondent Nos.1 to 3 would contend that they are legal heirs of another daughter Motamma and they support the case of the plaintiff and filed written statement claiming 1/7th share over the suit schedule properties and they are sailing with the plaintiff. 19. In reply to this argument, learned counsel for the appellant would contend that the very Will relied upon by the defendants is created and based on the created Will, seeking claim over Joint Development Agreement with defendant No.34 and the very Will is disputed which is a matter of trial and when the suit is filed for the relief of partition, the plaintiff is also entitled for 1/7th share and she being the daughter of Munikadarappa, they cannot proceed with the construction. - 24 - NC: 2025:KHC:1555 MFA No. 676 of 2023 Learned counsel would contend that when the suit was filed, at that time, there was no construction and even after filing of the suit, since the defendant No.34 proceeded to construct the building, now cannot claim any equity. In reply to this argument of the learned counsel for the appellant, learned counsel for the defendant No.34-Developer would contend that cost of construction is also taken note by the Trial Court and the Trial Court rightly dismissed the application which does not require any interference. 20. Learned counsel appearing for respondent Nos.15 to 17 relied upon the judgment in MANDALI RANGANNA AND OTHERS VS. T. RAMACHANDRA AND OTHERS reported in (2008) 11 SCC 1 and brought to notice of this Court paragraph No.22, wherein discussion was made that grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. Learned counsel also brought to notice of this Court paragraph No.26, wherein it is observed that rightly or wrongly constructions have come up. They cannot be directed to be demolished at least at this stage. Respondent 7 is said to have - 25 - NC: 2025:KHC:1555 MFA No. 676 of 2023 spent three crores of rupees. If that be so, in our opinion, it would not be proper to stop further constructions. Learned counsel also brought to notice of this Court paragraph No.27, wherein it is observed that if any third-party interest is created upon completion of the constructions, the deeds in question shall clearly stipulate that the matter is sub judice and all sales shall be subject to the ultimate decision of the suit. All parties must co-operate in the early hearing and disposal of the suit. 21. Learned counsel also brought to notice of this Court judgment in DALPAT KUMAR AND ANOTHER VS. PRAHLAD SINGH AND OTHERS reported in (1992) 1 SCC 719. Learned counsel referring this judgment would contend that in this judgment, cardinal principles of law regarding consideration and grant of temporary injunction is discussed. 22. Learned counsel also relied upon the judgment in WANDER LTD. AND ANOTHER VS. ANTOX INDIA P. LTD. Reported in 1990 (SUPP) SCC 727 and brought to notice of this Court discussion made in paragraph No.14, wherein it is observed that appeal before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, - 26 - NC: 2025:KHC:1555 MFA No. 676 of 2023 the appellate Court will not interfere with the exercise of discretion of the Court at first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by the Court was reasonably possible on the material. Learned counsel referring this judgment would contend that the Trial Court has passed a well reasoned order and the same cannot be interfered with. 23. Having heard learned counsel for the appellant, respective counsels for the respondents and also the principles laid down in the judgments referred (supra), while granting the relief of temporary injunction, the Court has to take note of prima facie case of the plaintiff and the defendant and balance of convenience lies in whose favour and who will be put to irreparable hardship, if an order of temporary injunction is not granted. With that cardinal principles of law and the settled - 27 - NC: 2025:KHC:1555 MFA No. 676 of 2023 principles of law laid down in the judgments which is a settled law, this Court has to consider the material on record. Having heard the respective counsels for the appellant and respondents and considering the material on record, the points that would arise for consideration of this Court are: (1) Whether the Trial Court committed an error in rejecting the application filed under Order 39 Rule 1 and 2 CPC restraining defendant No.34 from proceeding with the construction? (2) What order? Point No.(1) 24. Having heard learned counsel for the appellant and learned counsels for the respondents, it is not in dispute that properties belong to Munikadarappa. It has also emerged from the records that out of 2 acres of land, 1 acre of land was sold in favour of Lakshmana. The very contention of the respondents/defendants before the Trial Court is that in the suit schedule properties, the identification of the properties is not mentioned and the Trial Court also observed the same while rejecting the application. It is important to note that both the parties are not disputing the fact, particularly item Nos.2 and 3 - 28 - NC: 2025:KHC:1555 MFA No. 676 of 2023 which is the part of item No.1 i.e., Sy.No.24 which is morefully described in the suit schedule property belongs to Munikadarappa is not in dispute. It is also not in dispute that the plaintiff has filed the suit seeking the relief of partition on the ground that she is the daughter of Munikadarappa. The pleadings of the parties that plaintiff is the daughter of Munikadarappa is not in dispute. It is also not in dispute that Munikadarappa is having two daughters and five sons. It is also important to note that schedule item No.1 is to the extent of 2 acres as mentioned in Sy.No.24 and the description of the boundary is not given. But, the details are specifically mentioned while seeking the relief of temporary injunction in respect of item Nos.2 and 3 of the suit properties are concerned, all that piece and parcel of immovable property in Sy.No.24, Khata No.71, measuring 10,004 sq.ft. of converted land vide conversion order bearing No.B.DIS.ALNSR(S)10/91- 92 in PID No.55-728-60 Padmanabhanagar, New Municipal No.60 situated at Kadirenahalli Village, Kumaraswamy Layout, adjacent to Revenue Layout Kadirenahalli, BBMP Ward No.55, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, in the plaint and also given the boundary in respect of item No.2 is - 29 - NC: 2025:KHC:1555 MFA No. 676 of 2023 concerned. So also in respect of item No.3 is concerned, the extent of the land and the boundaries are given. The copy of I.A.No.4 is also placed before the Court and relief is also sought for an order of temporary injunction restraining the defendant No.34 from putting up construction over item Nos.2 and 3 over the suit schedule property, pending disposal of the suit i.e., item Nos.2 and 3 and in respect of item Nos.2 and 3 also, boundaries are mentioned. Though in respect of item No.1, entire description of the property is not given while seeking the relief of temporary injunction, description as regards boundary and details of conversion of the property was given in respect of item Nos.2 and 3 of the suit schedule properties. But, the Trial Court proceeded to pass an order that boundary description is not given and even not looked into the description in I.A.No.4, wherein item Nos.2 and 3 details are given and boundaries are also given and while passing the order, the Trial Court only looked into item No.1, in coming to the conclusion that boundary descriptions are not given and the very approach of the Trial Court is erroneous for the reason that both parties are not disputing the very existence of the - 30 - NC: 2025:KHC:1555 MFA No. 676 of 2023 property i.e., item No.1 and boundary description is given in respect of item Nos.2 and 3 of the suit schedule properties. 25. Though it is an admitted fact that in respect of item No.1 of the suit schedule properties to the extent of 2 acres of land, 1 acre is sold in favour of the Lakshmana, but the very contention of the defendants is that they have entered into a Joint Development Agreement with defendant No.34 based on the Will and the plaintiff has not admitted the Will and nowhere in the plaint, they have pleaded with regard to very existence of the Will and no doubt, defendants have come up with an averment in the written statement averment there exists a Will, whether Will is in existence or not and whether they have given right to the plaintiff and also other daughter is a matter of trial and Trial Court proceeded to pass an order that property is not identifiable and the very identity is not disputed. However, this Court while hearing the arguments of the respective counsels, appointed the Court Commissioner at the instance of the appellant as well as the respondents, the Commissioner has also given the report demarcating the property which was sold in favour of Lakshmana and with regard to the remaining property, it is shown in the Commissioner report that the - 31 - NC: 2025:KHC:1555 MFA No. 676 of 2023 defendant No.34 has have taken up construction based on the Joint Development Agreement and Commissioner also identified the remaining vacant land is 22 guntas as per the report of the Commissioner and the fact that property belongs to the family of Munikadarappa is not in dispute. When the suit is filed for the relief of partition seeking 1/7th share and when there is no dispute with regard to relationship between the parties, the fact that Munikadarappa is having two daughters is not in dispute and some of the sons have also passed away and their legal representatives are parties to the suit is also not in dispute. Admittedly, in item No.3 of the suit schedule properties, construction is made to the extent of 44 plots and out of the same, 24 plots are allotted in favour of the Developer of the Joint Development Agreement and already 16 plots have been sold and other remaining plots are not yet sold and only third party rights are created after construction. 26. It is also important to note that when the suit is filed in the year 2022, there was no construction and Trial Court granted temporary injunction and the same has been vacated after hearing both the parties. It is also important to note that, I have already pointed out that Trial Court comes to - 32 - NC: 2025:KHC:1555 MFA No. 676 of 2023 the conclusion that Will is not disputed. But, the very Will is disputed and also made the observation in paragraph No.16 that whether Will is valid or not is a matter of trial and it is also important to note that in paragraph No.17, the Trial Court made an observation that in fact, the total extent of Sy.No.24 has not been brought out therein and also an observation is made that property was converted and when the Trial Court comes to the conclusion that the property was converted vide order of the Deputy Commissioner and made an observation in paragraph No.19 that as per the permission given by the BBMP in respect of Sy.No.24 in the plaint suit item No.3 which is the property where construction has been permitted. When such observation is made with regard to the identity of the property is concerned, particularly item No.3, the Trial Court comes to the conclusion that, under the circumstance, in the absence of document placed by the plaintiff to recognize the existence of suit schedule property as per the plaint pleading, this Court cannot grant temporary injunction concerning the property on which defendant No.34 is proceeding with construction and the very observation is erroneous. The very Trial Court comes to the conclusion in paragraph No.19 that construction has been - 33 - NC: 2025:KHC:1555 MFA No. 676 of 2023 permitted in respect of suit item No.3 of the property and again makes an observation that property is not identifiable and failed to take note of the very schedule given in the I.A. itself mentioning the schedule of item Nos.2 and 3 of the suit schedule properties and failed to look into the pleadings and also failed to take note of the fact that prima facie, the plaintiff is having 1/7th share over the suit schedule property and construction is taken up at the instance of the other defendants, who are legal representatives of sons of Munikadarappa and also other sons, who are alive. In the Joint Development Agreement, plaintiff is not made as party and also the legal representatives of other daughter are also not made as parties to the Joint Development Agreement. 27. It is also important to note that when the suit is filed, there was no construction and the Trial Court failed to exercise its discretion in granting the relief of temporary injunction and erroneously proceeded in a wrong notion that property is not identifiable and there is no dispute with regard to the identity of the property is concerned. Both the defendants and plaintiff are claiming the very same property and though contend that the property which is given to the - 34 - NC: 2025:KHC:1555 MFA No. 676 of 2023 Joint Development Agreement is allotted in terms of the Will, when the Will is disputed, the same is subject to proof and defence is also taken in the written statement and nowhere, the plaintiff has stated with regard to very existence of the Will is concerned. 28. It is also the contention of the learned counsel for the respondents that they had knowledge of the Joint Development Agreement and the same is registered and mere registration of the document cannot be construed that the plaintiff had the knowledge about the same. When an attempt is made to put up construction, the plaintiff immediately approached the Court by filing the suit and the fact that there was exparte temporary injunction in O.S.No.3907/2022 and thereafter interim order was vacated by rejecting the application is not in dispute and while rejecting the same, reasons are given that property is not identifiable and the very approach is erroneous, inspite of the fact that in I.A.No.4 itself the boundaries are given with regard to item Nos.2 and 3, against which the temporary injunction is sought and the material on record is also discussed that inspite of suit is filed at the initial stage, the defendant No.34 proceeded to put up - 35 - NC: 2025:KHC:1555 MFA No. 676 of 2023 construction in respect of item No.3 is concerned. Having considered the material on record, the defendant No.34 has already put up construction and construction is over in respect of item No.3 is concerned, the question of granting injunction in respect of item No.3 does not arise. However, in respect of item No.2 is concerned, the same is under construction and defendant No.34 also proceeded to put up construction, inspite of the fact that suit is filed and when the defendant No.34 proceeded to put up construction, inspite of suit is filed, the same is at the peril of defendant No.34, who proceeded to put up construction, inspite of the fact that property belongs to Munikadarappa and daughters are also having right to the extent of 1/7th share. The claim of other defendants is that there was a Will and Will is subject to proof. When such being the case, it is appropriate to restrain the defendant No.34 from putting up further construction in respect of the suit schedule property. 29. No doubt, learned counsel for the respondents have relied upon judgments, it is settled law that if any construction is made and the appellant/plaintiff approached the Court belatedly, then the Court can take note of said fact into - 36 - NC: 2025:KHC:1555 MFA No. 676 of 2023 consideration. In the case on hand, defendant No.34, at the instance of other defendants started putting up construction and at the beginning itself, the plaintiff filed the suit and sought for temporary injunction and injunction was granted at the first instance and even inspite of such order, the Trial Court passed an order rejecting the application that property is not identifiable, inspite of the fact that identity of the property is not disputed by the respondents. This Court also appointed the Court Commissioner and the Commissioner also filed the report stating that out of the property of 2 acre, 1 acre was sold and it is not in dispute that construction is taken up by the defendant No.34, even though at the initial stage itself suit is filed and the very judgments relied upon by the defendants will not come to the aid of the defendants and the factual aspect of the case also has to be taken note of. 30. In the said case, when the construction was half made, the plaintiff has approached the Court and in the case on hand, in the initial stage itself, the plaintiff has approached the Court and construction was made during the pendency of the suit which is at the peril of the defendant No.34 having investing huge money. It is also important to note that - 37 - NC: 2025:KHC:1555 MFA No. 676 of 2023 defendant No.34 proceeded to put up construction in item No.3 and defendant No.34 created third party rights in respect of 16 plots, out of the share of 24 plots and the same is also subject to the result of the suit, since defendant No.34 proceeded to put up construction, even inspite of suit is filed also sold sites in respect of item No.3 is concerned to the extent of 16 plots. The very contention of the defendant No.34 that he had invested huge money, to that effect also, he had already sold 16 plots in respect of item No.3 of the schedule property is concerned and the same is also at the risk of defendant No.34, who proceeded to put up construction, even inspite of filing of the suit. When the suit was filed, there was no construction over item Nos.2 or 3 of the suit schedule properties. Hence, the Trial Court failed to take note of prima facie case of plaintiff that she is having 1/7th share and also other daughter, whose legal representatives are respondent Nos.1 to 3 are not parties to the Joint Development Agreement and also failed to take note of the fact that when suit was filed, there was no construction and subsequent to filing of the suit, construction was put up and failed to take note of said fact into consideration recognizing the construction, in coming to the - 38 - NC: 2025:KHC:1555 MFA No. 676 of 2023 conclusion that defendant No.34 invested huge money and defendant No.34 ought not to have taken risk, when the plaintiff had filed the suit. Admittedly, the plaintiff and other legal representatives are not parties to the Joint Development Agreement. When such being the case, the Trial Court committed an error in rejecting the application only on the ground that the property is not identifiable. 31. Apart from that, in the plaint as well as in I.A.No.4, specific boundaries are given while seeking the relief of temporary injunction and the same has not been discussed by the Trial Court while rejecting the application stating that property is not identifiable and the very approach of the Trial Court is erroneous and the Trial Court permitted the defendant No.34 to put up construction by rejecting the application filed by the plaintiff when prima facie case and balance of convenience lies in favour of the plaintiff. If the defendant No.34 is further permitted to put up construction and sells the property, since already some of the plots are sold, the plaintiff will be put to irreparable hardship. But, the Trial Court comes to the conclusion that defendant No.34 will be put to hardship and permitted to put up construction, though the suit is filed - 39 - NC: 2025:KHC:1555 MFA No. 676 of 2023 before the Court by the plaintiff. Admittedly, the plaintiff and legal representatives of other daughter are not parties to the Joint Development Agreement. Hence, I answer point No.(1) as ‘partly affirmative’. Point No.(2) 32. In view of the discussion made above, I pass the following: ORDER (i) The appeal is allowed in part. (ii) The impugned order is set aside in part. Consequently, the application filed by the plaintiff i.e., I.A.No.4 is allowed in respect of item No.2 is concerned restraining defendant No.34 from putting up construction and in respect of item No.3 is concerned, the defendant No.34 has already completed construction and there is no need to grant injunction. (iii) The sale of 16 plots already made by the defendant No.34 is subject to result of the suit. (iv) The Trial Court is directed to dispose of the suit within a period of one year and both the - 40 - NC: 2025:KHC:1555 MFA No. 676 of 2023 plaintiff and the defendants and their respective counsels are directed to assist the Trial Court in disposal of the suit within a period of one year from today. Sd/- (H.P.SANDESH) JUDGE ST List No.: 2 Sl No.: 1