- 1 - MFA No. 100892/2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MFA NO.100892 OF 2025 (CPC) BETWEEN: SANDEEP S/O. CHANNAMALLAPPA SHIVALLI, AGE 43 YEARS, OCC: AGRICULTURE AND BUSINESS, R/O. 8475/C/1, SHIVABASAVA NAGAR, GULAGANJIKOPPA, DHARWAD-08. ... APPELLANT (BY SRI. B. V. SOMAPUR, ADVOCATE) AND 1. CHANNAMALLAPPA S/O. MALLESHAPPA SHIVALLI, AGE 80 YEARS, OCC: RETIRED EMPLOYEE, R/O. AKSHAY SAMRTH, FLAT NO.2, NEAR AXIS BANK, 2ND MAIN, NAVANAGAR, TQ. HUBBALLI, DIST. DHARWAD-580025. 2. SMT. MANJULA D/O. CHANNAMALLAPPA SHIVALLI, AF/M SMT. MANJULA W/O KIRAN RADDER, AGE 46 YEARS, OCC: DOCTOR, R/O. AKSHAY SAMRTH, FLAT NO.2, NEAR AXIS BANK, 2ND MAIN, NAVANAGAR, TQ. HUBBALLI, DIST. DHARWAD-580025. 3. RAMAKRISHNA S/O. MAHADEVAPPA DODDAMANI, AGE 65 YEARS, OCC: RETIRED EMPLOYEE, R/O. SHIVALLI PLOT, SHIVABASAVA NAGAR, GULAGANJIKOPPA, DHARWAD-08. 4. MANOHAR S/O. MUKUNDAPPA NAYAK, AGE 45 YEARS, OCC: BUSINESS, R/O. SHIVALLI PLOT, SHIVABASAVA NAGAR, GULAGANJIKOPPA, DHARWAD-08. … RESPONDENTS (BY SRI. N. P. VIVEKMEHTA, ADVOCATE FOR R1 & R2; SRI. M. L. VANTI, ADVOCATE FOR R4; NOTICE SENT TO R3 IS SERVED) Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench. - 2 - MFA No. 100892/2025 THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O.43 RULE 1(R) R/W SECTION 151 OF CPC, PRAYING TO CALL FOR RECORDS AND SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE AND CJM, DHARWAD IN OS NO. 423/2024 DATED 01.02.2025 ON IA NO. 2 AND THE I.A. NO. 2 MAY BE PLEASED BE ALLOWED, IN THE INTEREST OF JUSTICE AND EQUTIY. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 02.04.2025 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This appeal is filed by the plaintiff in O.S. No.423/2024 against the order passed on I.A. No.2, filed under Order XXIX Rule 1 and 2 of the CPC, dated 01.02.2025, by the learned Prl. Senior Civil Judge and CJM, Dharwad (hereinafter referred to as “the trial Court”). 2. For the sake of convenience, the parties herein are referred to according to their ranking before the trial Court. 3. It is the case of the plaintiff that, the suit schedule properties i.e., properties described in schedule “A” to “D”, are ancestral joint family properties. The plaintiff’s grandfather, Malleshappa had two sons, namely Virupakshappa and Chanamallappa (defendant No.1). The - 3 - MFA No. 100892/2025 properties inherited by Malleshappa were divided between Virupaxappa and defendant No.1 through a registered partition deed executed during 2011, an oral partition of the year 1984 and through process of the Court in O.S. No.154/1995. Consequently, the suit schedule “A” to “D” properties were allotted to the share of defendant No.1. The plaintiff and defendant No.2 are son and daughter of defendant No.1, and they constitute a joint family. The plaintiff claims a 1/3rd share in the suit schedule properties. 4. In the “B” schedule property, there is a house where the plaintiff has been residing in a portion, while the remaining portion was earlier was with the possession of defendant No.1 and he gave it to defendant No.4. Defendant No.4 has no right over of the suit schedule property and was residing in a portion of the house situated in Block No.3/3 at the instance of defendant No.1. Further, Defendant No.4 caused for hardship to the plaintiff by demolishing a structure adjacent to the house of the plaintiff in Block No.3/3 measuring one guntas. The plaintiff demanded partition, but defendant No.1 refused to effect - 4 - MFA No. 100892/2025 the partition. Consequently, the plaintiff constrained to file the suit. 5. The plaintiff has filed I.A. No.2 under Order XXXIX Rule 1 and 2 of the CPC seeking an ad-interim relief of temporary injunction to restrain defendant No.4 from constructing a building on the “B” schedule property i.e., Block No.3/3. The application is supported by an affidavit, wherein the plaint averments are reiterated and it is further stated that defendant No.4 without any right, high handedly putting up construction in the suit schedule property. Accordingly, the plaintiff has prayed for an injunction restraining defendant No.4 from proceedings with the construction. 6. Defendant No.4 filed a written statement as well as objections to I.A. No.2. According to his contention, suit schedule “A” to “D” properties are the ancestral joint family properties of defendant No.1. He denied that there was no partition between the plaintiff and defendant No.1. He further contended that “B” schedule property, measuring - 5 - MFA No. 100892/2025 totally 1 acre 28 guntas, has been developed into a private lay out. In the said agricultural land, roads and drainages have been constructed. Defendant No.1 has sold some of the plots, while the remaining vacant portion of the suit properties are still in his custody. More than 20 persons have constructed houses on their respective plots and have been paying water tax and electricity charges to the concerned authorities. Defendant No.4 contended that these persons were not made parties to the suit and also alleged that with an malicious intent, has only impleaded defendant No.4 as a party. Therefore, he contended that the suit is liable to be dismissed for non-joinder of necessary parties. 7. Defendant No.4 further contends that defendant No.1, Veerupaxappa and the plaintiff partitioned the property in Block No.132, and the same was given to the plaintiff in the said partition dated 25.11.2011. Defendant No.1 sold portion of the “B” schedule property as a Kartha of the family for the legal necessity. Defendant No.4 claims to be a bonafide purchaser of 900 sq. ft. in “B” schedule - 6 - MFA No. 100892/2025 property for valuable consideration and the same is entered in the revenue records. The plaintiff is aware of this fact and also knows that the name of defendant No.4 has been entered in the revenue records. Defendant No.4 denies the other averments made in the plaint and prays for the dismissal of the suit. . 8. In the objections, defendant No.4 reiterates the same facts, stating that “B” schedule property consists of 40 plots, out of which 22 to 25 plots have been purchased by various persons, who have constructed houses on their respective plots long before the filing of the suit. Defendant No.4 was aware of these facts. Defendant No.4 further contends that he purchased one of the plots within the suit property and that the alleged shed was situated on this plot. He removed the said shed with the intention of constructing a building. He contends that the plaintiff has no right to restrain him from proceedings with the construction. On these grounds, defendant No.4 prays for the rejection of the application. - 7 - MFA No. 100892/2025 9. The trial Court, after hearing both parties, rejected I.A. No.2 by the impugned order. The plaintiff has challenged the same in the present appeal. 10. Heard the arguments of the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 11. Learned counsel appearing for the appellant submits that the suit is for partition, and it is not disputed by defendant Nos.1 and 4 that the suit schedule properties are the ancestral joint family properties of plaintiff and defendant Nos.1 and 2. Defendant No.4 contends that he purchased a portion of suit “B” schedule property; however, he has not produced any records to substantiate the same. Any entry in the revenue records without a registered document does not create any title over properties, as the suit schedule properties are not absolute properties. Defendant No.1 had no right to sell the property. Since the disposal of the suit may take sometime, in the meantime, defendant No.4 has constructed a building and altered the - 8 - MFA No. 100892/2025 nature of suit properties, causing irreparable loss and hardship to the plaintiff. These facts were not considered by the trial Court. Therefore, the appellant prays that the said order be set aside and that the relief of temporary injunction be granted in favour of the plaintiff. 12. Learned counsel appearing for defendant No.1 contends that the suit properties are joint family properties and that defendant No.1 has already sold some of the plots situated in suit “B” schedule property for legal necessity and to the benefit of family. There is no allegation by the plaintiff against defendant No.1 that the properties were sold for an immoral purpose. Under these circumstances, as the Kartha of the family, defendant No.1 has the right to alienate the properties. Defendant No.4 purchased a plot formed within the suit schedule properties and, therefore, has the right to construct a building. The plaintiff cannot restrain defendant No.4 from constructing on the plot. Hence, the counsel prays for the dismissal of the appeal. - 9 - MFA No. 100892/2025 13. Learned counsel appearing for defendant No.4 submits that he is the bonafide purchaser of the suit schedule property for valuable consideration. However, the said sale deed is not a registered document. The plaintiff is aware about these facts, and a major portion of the building has already been constructed. The suit has been filed merely to harass defendant No.4, and it is pertinent to note that no relief has been claimed against him. Therefore, the suit is not maintainable. Defendant No.1 has already sold several plots formed within the suit “B” schedule property. The purchasers of these plots are not parties to the suit, and they have already constructed houses on their respective plots. The plaintiff did not object to their construction; however, with the intention of harassing defendant No.4 and extracting money from him, the suit, along with I.A. No.2 has been filed. The learned Trial Judge, after considering these facts, rightly rejected the application, which does not warrant any interference by this Court. Hence, the counsel prays for the dismissal of the appeal with costs. - 10 - MFA No. 100892/2025 14. From the rival contentions of the parties, the following point arises for determination: “Whether the orders passed by the learned Trial Judge on I.A. No.2 is perverse, arbitrary and illegal, warranting interference by this Court?” Re: Point 15. From the pleadings of the parties, it is not in dispute that the suit schedule properties including suit “B” schedule property, are the ancestral joint family properties. The plaintiff and defendant Nos.1 and 2 have a share in the suit schedule property, and the suit is for partition. Defendant No.4 contends that he has purchased a portion of the suit schedule property measuring 900 sq.ft. However, from the pleadings and the written statement, it appears that sites were formed from the agricultural lands and are the revenue sites. Defendant No.4 has not produced the any title deeds to establish that defendant No.1 validly sold the relevant portion of the land to him. Further, there are no prima facie materials on record to demonstrate that defendant No.4 has acquired ownership of the property with specific boundaries. In the absence of - 11 - MFA No. 100892/2025 legal documents. Defendant No.4 is claiming rights over the immovable properties, which is not permissible. Without the sale deed or any other document of conveyance, defendant No.4 has no right to deal with the property, which admittedly belongs to plaintiff and defendant Nos.1 and 2. Under such circumstances, defendant No.4 cannot construct a building on the property that belongs to someone else. The other technical objections raised by the defendants shall be considered during the course of trial of the matter and not at the stage of deciding the present application. 16. The learned Trial Judge, more or less, dismissed the application on the ground that the land in question is agricultural land and that no sites were formed in it. However, this fact is not material in determining whether a prima facie case exists. Therefore, the said finding is irrelevant for granting or rejecting the application. If defendant No.4 had produced a registered document evidencing the transfer of property in his name, he might have had a prima facie case. However, in the absence of such a document, he has no right to construct a building on - 12 - MFA No. 100892/2025 property belonging to someone else. The learned Trial Judge failed to consider these facts, and a mere entry in the revenue records, without being supported by title deeds, does not confer any right upon defendant No.4 to construct a building. Further, defendant No.4 has not contended that the property was sold to him under a registered document. Under these circumstances and the admitted facts between the parties, the plaintiff has a joint right over the suit property. The plaintiff has established a prima facie case, and the balance of convenience lies in the plaintiff’s favour. If the suit is ultimately decreed, the building constructed by defendant No.4 may have to be demolished, causing irreparable loss to both plaintiff as well as defendant No.4. It is a well settled principle of law that in a suit for partition, the status of the properties must be maintained as of the date of the suit. Therefore, rejecting the plaintiff’s application would enable the defendant to complete the construction, thereby affecting the rights of the parties. In light of these facts, the findings of the - 13 - MFA No. 100892/2025 learned Trial Judge are arbitrary and perverse, warranting interference by this Court. 17. For the aforesaid discussion, the point raised above is answered in the affirmative, and this Court pass the following: ORDER (i) The appeal is allowed. (ii) The impugned order dated 01.02.2025, passed in O.S. No.432/2024 by the Prl. Senior Civil Judge and CJM, Dharwad on I.A. No.2 is set aside. (iii) Application in I.A. No.2 filed by the plaintiff is allowed. (iv) Defendant No.4 is restrained by an ad-interim injunction from putting up any construction or continuing with construction in the suit property, pending disposal of the suit. Sd/- (UMESH M ADIGA) JUDGE VNP / CT-AN List No.: 1 Sl No.: 50