- 1 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 7639 OF 2024 (CPC) BETWEEN: 1. SMT. VENKATAMMA, W/O LATE MUNIYAPPA, AGED ABOUT 93 YEARS, 2. SMT. GIRIJA, D/O CHIKKAMUNIYAPPA, AGED ABOUT 33 YEARS, 3. SRI. HEMANTH KUMAR, S/O CHIKKAMUNIYAPPA, AGED ABOUT 30 YEARS, APPELLANT NO.1 TO 3 ARE RESIDING AT THIPPASANDRA VILLAGE, THALAGHATTAPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 062. …APPELLANTS (BY SRI.HARSHA., ADVOCATE) AND: 1. SRI. VENKATASWAMY, S/O LATE MUNIYAPPA, AGED ABOUT 63 YEARS, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 2. SRI. LAKSHMAIAH, S/O LATE MUNIYAPPA, AGED ABOUT 60 YEARS, 3. SRI.CHIKKAMUNIYAPPA, S/O LATE MUNIYAPPA, AGED ABOUT 55 YEARS, 4. SRI. LINGAPPA, S/O LATE MUNIYAPPA, AGED ABOUT 53 YEARS, 5. SMT. KAMALAMMA, D/O LATE MUNIYAPPA, AGED ABOUT 57 YEARS, 6. SMT. SHARADAMMA, D/O LATE MUNIYAPPA, AGED ABOUT 48 YEARS, 7. SMT. MUNILAKSHMI, D/O LATE MUNIYAPPA, AGED ABOUT 44 YEARS, 8. SMT.HEMAVATHY, D/O LATE MUNIYAPPA, AGED ABOUT 43 YEARS, RESPONDENTS NO.1 TO 8 ARE RESIDING AT THIPPASANDRA VILLAGE, THALAGHATTAPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 062. - 3 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 9. SMT. GEETHA SUKUMARAN, D/O LATE SUKUMARAN, AGED ABOUT 68 YEARS, RESIDING AT 56, 1ST MAIN, 1ST BLOCK, SUBRAMANYAPURA POST, VASANTHA VALLABHANAGAR, BANGALORE – 560 062. 10. SMT. LATHA @ SREE LATHA.T., W/O. SRI. SUBRAMANYA, AGED ABOUT 54 YEARS, RESIDING AT NO.25, 2ND MAIN, 4TH CROSS, HILLSIDE HOSPITAL ROAD, RAMACHANDRAPPA LAYOUT, PADMANABHA NAGARA, BANGALORE – 560 070. 11. SRI. KUMAR.K., S/O. KRISHNAPPA, AGED ABOUT 26 YEARS, RESIDING AT THIPPASANDRA VILLAGE, THALAGHATTAPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 062. 12. MISS. SOWMYA.K., D/O. KRISHNAPPA, AGED ABOUT 23 YEARS, RESIDING AT THIPPASANDRA VILLAGE, THALAGHATTAPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 062. - 4 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 13. MISS. SUSHMA, D/O LINGAPPA T.M., AGED ABOUT 25 YEARS, RESIDING AT NO.57/P3/4, DINNEPALYA, HOMMADEVANAHALLI DHAKLE, B.G.ROAD, GOTTIGERE POST, BANGALORE – 560 083. 14. SRI. VINODH.T.L., S/O LINGAPPA T.M., AGED ABOUT 22 YEARS, RESIDING AT NO.57/P3/4, DINNEPALYA, HOMMADEVANAHALLI DHAKLE, B.G.ROAD, GOTTIGERE POST, BANGALORE – 560 083. 15. MISS. SARITHA.C., D/O. CHIKKAMUNIYAPPA, AGED ABOUT 22 YEARS, RESIDING AT 20/12, THIPPASANDRA VILLAGE, THALAGHATTAPURA POST, UTTARAHALLI HOBLI, BANGALORE SOUTH TALUK, BANGALORE – 560 062. …RESPONDENTS (BY SRI.VISHWANATH R HEGDE, ADVOCATE FOR R9 AND R10; R1, R3, R5, R7, R11, R12, R13, R14 & R15 ARE SERVED) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 06.11.2024 PASSED ON IA NO.11 IN O.S.NO.1338/2018 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, REJECTING IA NO.11 FILED U/O.39 RULE 1 AND 2 OF CPC. - 5 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT 1. The plaintiffs are before this Court challenging the order passed on I.A.No.11 filed under Order XXXIX Rule 1 R/w Section 151 of Code of Civil Procedure, 1908 in O.S.No.1338/2018 dated 06.11.2024 by the Principal Senior Civil Judge, Bengaluru Rural District, Bengaluru, whereby, the application filed for the temporary injunction has been dismissed. 2. The plaintiffs / appellants filed a suit for partition claiming 1/9th share in the suit schedule 'A' property by mentioning that it would come to 13½ guntas. Learned counsel for respondent Nos.9 and 10 (defendant Nos.9 and 10) submitted that 1/9th share of 2 acres comes to 8.9 guntas. 3. Learned counsel for the appellants/plaintiffs submitted that the plaintiffs have the inherent right of share in the suit schedule property and if the nature of - 6 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 the land is changed, then there would not be equitable distribution of the suit schedule property by metes and bounds and thus, the plaintiffs would be deprived of getting their shares in the suit schedule 'A' property. Therefore, the plaintiffs had filed the application seeking temporary injunction, not to change the nature of the land, but the Trial Court has erroneously dismissed the application constraining the plaintiffs to prefer the instant appeal. 4. It is further submitted that the plaintiffs were not the parties in the sale deed dated 05.06.2003 and father of the plaintiffs in causing deprivation of legitimate share of the plaintiffs had sold the property to defendant Nos.9 and 10. It is submitted that the plaintiffs have inherent right of share in the suit schedule 'A' property. Therefore, this Court has granted an order of status quo to both the parties. Hence, he prays not to vacate the interim order and also allow the appeal by granting an order of temporary injunction. - 7 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 5. On the other hand, learned counsel for respondent Nos.9 and 10 submitted that the father of plaintiff Nos.1 and 2 was party to the sale deed dated 05.06.2003 and therefore, the suit filed is frivolous. Further, the land was converted for the residential purpose from the agricultural land and the sites have been formed and some of the sites have been sold out and the purchasers have put up the construction. When this being the fact, the plaintiffs have sold the property and formed the lay-out and sold the sites which prima facie go to show that the suit for the partition is not maintainable, as such the Trial Court has rightly dismissed the application for temporary injunction. But, in the appeal, only based on some photographs produced during the pendency of the appeal, an interim order of status quo has been granted. Therefore, he prays to vacate the interim order and also to dismiss the appeal. 6. Though the appeal is posted for orders, but the arguments canvassed is as good as on the main appeal. - 8 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 Therefore, with the consent of the counsel for both the parties, the matter is taken up for final disposal. 7. The undisputed fact is that the suit property was acquired by one Sri.Iskappa in the year 1961 and the wife and children of Sri.Iskappa have alienated the suit schedule property in favour of defendant Nos.9 and 10. Therefore, appellant Nos.2 and 3 being the children of defendant No.3 claim right in the property of their grand father, when their father was alive. Therefore, in this regard, the Trial Court has observed that the claim of share by appellant Nos.2 and 3 in the suit schedule property is doubtful. 8. When the plaintiffs have taken the contention that there was earlier partition between the sons of Sri.Iskappa but there is no material produced, prima facie to show that there was a partition and thus, the husband of plaintiff No.1 had acquired 13½ guntas of land. The documents produced by defendant Nos.9 and 10 goes to show that all the children of appellant No.1 and Sri.Muniyappa have - 9 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 confirmed the sale deeds in respect of the suit schedule 'A' property executed in favour of defendant Nos.9 and 10. The plaintiffs are claiming share out of 13½ guntas, but the share ought to have been claimed is 1½ share in 2 guntas ie., less than 13½ guntas. When this being the fact, it prima facie shows that share of the plaintiffs herein is 13½ guntas, but not to the entire extent of 3 acres. The Trial Court after finding the materials produced along with the application for temporary injunction has held that father of the plaintiffs had sold the property in their 2/3rd share, in favour of defendant Nos.9 and 10 and in turn defendant Nos.9 and 10 have formed the lay-out and sites were sold out. One of the site was sold favour of Sri.Abhishek Sukumaran vide sale deed dated 30.03.2011. This sale deed is before institution of suit for partition. Subsequently, the sites have been sold out, but the said sale is subject to result of the suit and as the purchasers have purchased the property, it attracts Section 52 of the Transfer of Property Act, 1882. Therefore, the Trial Court is correct in observing that the other plaintiffs themselves - 10 - NC: 2025:KHC:16183 MFA No. 7639 of 2024 have sold out the property in favour of defendant Nos.9 and 10 in the year 2003 and subsequently, the suit is filed in the year 2012. Therefore, in this regard, whether the sale of property is for the necessity or not, and whether the plaintiffs have legitimate share or not, are all the questions to be considered as a trial issue in the suit. Therefore, considering all the aspects, the Trial Court is correct in dismissing the application filed for temporary injunction. Whatever it may be, the purchase subsequent to sale, are subject to result of the suit and the subsequent purchasers cannot claim equity as it attracts Section 52 of the Transfer of Property Act, 1882. 9. With this observation, the appeal deserves to be dismissed. Accordingly, the appeal is dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE GH List No.: 1 Sl No.: 6