- 1 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 105094 OF 2023 (CPC) BETWEEN: SMT. BASAVVA W/O. SHIVAPPA HUTTAKKANAVAR SINCE DECEASED BY HER LRS. 1. SMT. MUTTAVVA @ AKKAVVA W/O. BASAPPA BANAGATTI, AGE 46 YEARS, OCC: HOUSEHOLD WORK, R/O. TAVARAGERI-581204, TQ. KALAGHATAGI, DIST. DHARWAD. 2. SMT. NEELAVVA D/O. SHIVAPPA HUTTAKKANAVAR, AGE 44 YEARS, OCC. HOUSEHOLD WORK, R/O. MANAGUNDI-580007, TQ & DIST. DHARWAD. 3. SRI. CHANABASAPPA S/O. SHIVAPPA HUTTAKKANAVAR, AGE 42 YEARS, OCC. HOUSEHOLD WORK, R/O. MANAGUNDI-580007, TQ & DIST. DHARWAD. 4. SRI. BASAPPA S/O. CHENNAPPA KATTI, AGE 86 YEARS, OCC: AGRICULTURE, R/O. TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. SRI. SHANKRAPPA S/O. CHENNAPPA KATTI, SINCE DECEASED BY HIS LRS. 5. SMT. SOMAVVA W/O. SHANKRAPPA KATTI, AGE 68 YEARS, OCC. HOUSEHOLD WORK, R/O. NADUVINA ONI, TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 6. SRI. BASAPPA S/O. SHANKRAPPA KATTI, AGE 52 YEARS, OCC. AGRICULTURE, R/O. NADUVINA ONI, TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 7. SRI. ULAVAAPPA S/O. SHANKRAPPA KATTI, AGE 45 YEARS, OCC. AGRICULTURE, R/O. NADUVINA ONI, TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 8. SMT. ANNAPURNA W/O. SHIVANGOUDA PATIL, AGE 46 YEARS, OCC. HOUSEHOLD WORK, R/O. SHIRUR-581113, TQ. KUNDAGOL, DIST. DHARWAD. 9. SMT. CHANNAVVA W/O. PRAKASH SHOBANAVAR, AGE 41 YEARS, OCC: HOUSEHOLD WORK, R/O. DODDAMARAB-580112, TQ. NAVALAGUND, DIST. DHARWAD. 10. SMT. YALLAVVA W/O. SHIVAPPA KATTI, AGE 44 YEARS, OCC: HOUSEHOLD WORK, R/O. NADUVINA ONI, TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 11. SRI. KALLAPPA S/O. SHIVAPPA KATTI, AGE. 21 YEARS, OCC: STUDENT, R/O. NADUVINA ONI, TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. SINCE APPELLANT NO.11 IS MENTALLY CHALLENGED REPRESENTED BY HIS MOTHER NATURAL GUARDIAN SMT. YALLAVVA W/O. SHIVAPPA KATTI. 12. KUMARI SOUMYA D/O. SHIVAPPA KATTI, AGE. 15 YEARS, OCC. STUDENT, R/O. NADUVINA ONI, TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 13. KUMAR SANDEEP S/O. SHIVAPPA KATTI, AGE. 11 YEARS, OCC. STUDENT, R/O. NADUVINA ONI, TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. SINCE APPELLANT NO.12 & 13 ARE - 3 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 MINORS, REPRESENTED BY THEIR MOTHER NATURAL GUARDIAN SMT. YALLAVVA W/O. SHIVAPPA KATTI. 14. SMT. DYAMAVVA W/O. PARVATAPPA HURAGATTI, AGE 80 YEARS, OCC: HOUSEHOLD WORK, R/O. HEBBALLI-580112. TQ AND DIST. DHARWAD. 15. SMT. GANGAVVA W/O. SHIVAPPA MUTTAGI, AGE 77 YEARS, OCC. HOUSEHOLD WORK, R/O. TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 16. SMT. NEELAVVA W/O. SHIDDAPPA HONNALLI, AGE. 71 YEARS, OCC. HOUSEHOLD WORK, R/O. TAVARAGERI-581204, TQ. KALAGHATAGI, DIST. DHARWAD. 17. SRI. MALLAPPA S/O. BASAPPA KATTI, AGE 53 YEARS, OCC: AGRICULTURE, R/O. TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 18. SMT. KALAVATI W/O. MALLAPPA KATTI, AGE. 39 YEARS, OCC: HOUSEHOLD WORK, R/O. TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. …APPELLANTS (BY SRI. CHETAN T. LIMBIKAI, ADVOCATE) AND: 1. SMT. ANASUYA W/O. KALLAPPA KATTI, AGE 58 YEARS, OCC: HOUSEHOLD WORK, R/O. TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 2. SMT. NAGAVVA W/O. SHANKRAPPA TADAKOD, AGE 36 YEARS, OCC: HOUSEHOLD WORK, R/O. NAVALUR-580009, TQ & DIST. DHARWAD. - 4 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 3. SRI. CHENNAPPA S/O. KALLAPPA KATTI, AGE 33 YEARS, OCC: AGRICULTURE, R/O. TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 4. SMT. SAROJA W/O. NAGANAGOUDA PATIL, AGE 30 YEARS, OCC: HOUSEHOLD WORK, R/O. DEVALAPUR-591102, TQ. BAILHONGAL, DIST. BELAGAVI. 5. SRI. SHASHIDHAR S/O. KALLAPPA KATTI, AGE 28 YEARS, OCC: AGRICULTURE, R/O. TARIHAL-580026, TQ. HUBBALLI, DIST. DHARWAD. 6. SMT. JANAVVA W/O. SHEKAPPA HUTTAKKANAVAR, AGE 40 YEARS, OCC: HOUSEHOLD WORK, R/O. MANAGUNDI-580007, TQ & DIST. DHARWAD. …RESPONDENTS (BY SRI. SANTOSH B. MANE, ADV. FOR R1, R2 TO R5; NOTICE TO R6 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O.43 RULE 1(R) OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDER DATED 05.04.2023 PASSED IN O.S.NO.167/2015 ON I.A. DATED 14.02.2023 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALLI, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is filed by defendants in O.S.No.167/2015 against the order dated 14.02.2025 passed on I.A. filed under Order XXXIX Rule 1 and 2 of CPC by the learned I Additional Senior Civil Judge, JMFC, Hubballi. 2. I refer to the parties as per their ranking before the trial Court. 3. Plaintiffs filed I.A under Order XXXIX Rule 1 and 2 of CPC seeking ad-interim relief of temporary injunction restraining the defendants from putting up construction in plaint ‘C’ schedule property at Sl.No.4, (for short disputed property) pending disposal of the suit. 4. The appellants – defendants filed objection to the said application. 5. After hearing both the parties, the trial Court by order dated 05.04.2023 granted relief of ad-interim temporary injunction restraining the defendants from putting up construction in the site disputed property. - 6 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 6. To dispose of this appeal facts in brief of case as both the parties to the suit are that plaintiff contended that the suit properties are joint family properties. The plaintiffs have a share in the said properties. Defendant No.2 and members of his family illegally started construction in the disputed property. During the pendency of the suit, if they continued the construction, it would change the nature of the suit property and cause irreparable loss and hardship to the plaintiffs. With these reasons, they prayed to grant ad-interim relief of temporary injunction, restraining the defendants from construction of building in the disputed property. 7. The defendants denied the contention of the plaintiffs. According to their contention, plaintiffs have not approached the Court with clean hands. The plaintiffs have constructed the building in Municipal Ward No.36T in PID No.36G/68, building No.47 which is part of suit property. The defendants have already invested huge amount for construction of residential house. They have purchased building materials by spending huge amount. They are intending to construct a house in the said property. They have already completed 50% of the completed the work. At this juncture, if injunction is granted, - 7 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 then defendants will be put to irreparable loss and injury. With these reasons, prayed to dismiss the application. 8. The trial Court after hearing both the parties and considering the materials on record, allowed the said application and granted relief sought for in the application. 9. I have heard the arguments of learned counsels for both the parties. 10. Learned counsel for the appellants submits that plaintiffs suppressing the material facts of relinquishing their share in the suit property, filed a false suit. When the relinquishment documents are placed on record, they have amended the plaint and sought for additional relief. The plaintiffs have not approached the Court with clean hands. During the pendency of the suit, plaintiffs have also constructed house in the suit property and when the defendants are trying to construct the house in the suit property they are coming in the way. Already 50% of the building is completed and defendants have ready undertaken that they will not expand the construction and just complete the incomplete building. They will also undertake that they will not claim any equity and - 8 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 demolish the building if it were allotted to the share of plaintiffs in the final decree proceedings. With these reasons, prayed to set aside the impugned order passed by the trial Court. 11. Learned counsel for respondents submits that the suit is of the year 2015, the defendants, who are in the possession of the property by one or the other way trying to drag on the proceedings. They did not cross-examine PW-1 nearly for a period of 5 years and defendants filed writ petition before this Court seeking direction and while disposing of the said writ petition, this Court directed the trial Court to dispose of the suit at the earliest, on or before 31.01.2025. The conduct of the defendants show that only to harass the plaintiffs they are constructing the building. 12. It is further contended that already there are 5 houses are in possession of the defendants and there was no need for construction of new house. Before the trial Court, the case is posted for arguments. Instead of arguing the suit filed this appeal. They could have pusuaded the Court and argued the matter so that matter could be decided by the trial Court. The plaintiffs have made out a prima facie case and balance of - 9 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 convenience lies in favour of the plaintiff. If injunction is not granted then the defendants will not be put to irreparable loss and hardship. The nature of property would be changed. Considering these facts, the trial Court rightly granted the relief and it does not call for interference. 13. It is further contended that the property where the plaintiffs have constructed house is not at all the subject matter of the suit. Therefore, the contention of the appellant in this regard is incorrect. With these reasons, prayed to dismiss the appeal with cost. 14. Following question arisen for my determination. i) Whether the findings of the learned trial Judge is perverse, arbitrary and illegal and interference by this Court is required? ii) What order? 15. My finding on the above question is partly on the affirmative. The plaintiffs approached the court with a contention that the suit properties are ancestral and joint family properties and they are entitled for a share in the suit schedule properties. The defendants in the written statement took various - 10 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 contentions and their main contention is that plaintiffs have relinquished their right over two agricultural lands in favour of defendants by registered relinquishment deed. Therefore, plaintiffs are not entitled for share in the said property. It appears after completion of the recording of the evidence, present application was filed by the plaintiff. 16. The appellants in this appeal have produced the photographs of the incomplete building constructed by them. The said photographs reveal that the defendants have constructed wall having height of 7 to 8 feet. If the injunction is granted, the said incomplete construction has to remain as it is till disposal of the suit. Due to natural wear and tear, the incomplete construction may likely to damage and collapse. In the affidavit, it is contended by appellants-defendants that they have already collected building materials by spending huge amount and stored nearby the proposed construction. Photos produced by the defendants support the said contention. Defendants have undertaken that they will not expand the construction and they will complete the incomplete building in beyond the disputed property. It is also submitted by learned counsel for the appellants that they will undertake not to claim - 11 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 any equity in respect of the said building. The said construction will be subject to the result of the suit. Subject to the said undertaking if they are permitted to complete the building without expanding the same no hardship or prejudice will be caused to the respondents-plaintiffs. As rightly submitted by learned counsel for the appellants, in the event this building is allotted to the share of plaintiffs in the final decree proceedings then they may take advantage of the said building or if they do not want to retain the said building, that shall be demolished at the cost of the appellants. By imposing such conditions if defendants are construct building, no hardship or prejudice would be caused to the other side. The trial Court should have considered and rejected the application. On the basis of undertaking of defendants, the trial court should have permitted the defendants to complete the structure. The relief granted by the trial court will not help either of the parties. Hence finding of the trial court is perverse and arbitrary. Hence interference of this court is required. For the above said reason, I answer question No.1 in the alternative. 17. In view of the said reasons, interference of the trial Court is required. Accordingly, I pass the following: - 12 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 ORDER i. The appeal is allowed. ii. The order dated 05.04.2023 passed in O.S.No.167/2015 on the file of I Additional Senior Civil Judge and JMFC, Hubballi, restraining the defendants from construction of the building in site No.50 in PID No.36G/69 situated at Municipal Ward No.36T i.e. mentioned at Sl.No.4 of the plaint of the ‘C’ property is vacated subject to the following conditions: a) The defendants are permitted to complete the said construction without expanding of the building and without bringing to the notice of the Court. b) They shall not claim any equity if the said property is allotted to the share of other members of the family. c) If the persons to whom the said property is granted do not want the said building, it shall be demolished at the cost of the defendants without claiming any equity. - 13 - NC: 2025:KHC-D:4552 MFA No. 105094 of 2023 d) The defendants shall file affidavit in this regard before the trial Court within a period of two weeks, from receipt of copy of this order by the trial court. The matter is pending for the last 10 years. It is submitted by the learned counsel for respondents that as per the direction in the writ petition, the suit ought to have been disposed of by 31.01.2025. However, till today, it is not disposed off. Therefore, the trial Court is directed to dispose of the suit at the earliest. Both the parties are directed to co-operate with the trial Court to dispose of the suit expeditiously. Pending I.A’s, if any, stands disposed of in view of the disposal of the appeal. Send copy of the order to trial Court. Sd/- (UMESH M ADIGA) JUDGE AG /CT-AN List No.: 1 Sl No.: 49