- 1 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 105526 OF 2024 (CPC) BETWEEN: 1. SRI. SRIKANTH S/O. VENKATASUBBAIAH, AGED ABOUT 38 YEARS, R/O. PLOT NO.14, NEAR KMF MILK DAIRY, INDIRANAGAR, BALLARI-583103. 2. SRI. RAVIKANTH S/O. VENKATASUBBAIAH, AGED ABOUT 36 YEARS, R/O. PLOT NO.14, NEAR KMF MILK DAIRY, INDIRANAGAR, BALLARI-583102. …APPELLANTS (BY SRI. C. K. NANDAKUMAR, SENIOR COUNSEL FOR SRI. BASAVANA GOUD T, ADVOCATE) AND: 1. SMT. D. KAVITHA W/O. SATYA SAI PRASAD, OCC. HOUSEWIFE, Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 R/O. HOUSE NO.54/18, 1ST MAIN, SIDDARTHA COLONY, BALLARI-583103. 2. SMT. SARITHA W/O. RAVI PRASAD, OCC: HOUSEWIFE, AGED ABOUT 45 YEARS, R/O. ‘MALLIKARJUNA SWAMY’, 2ND CROSS, SRINIVASA NAGAR, ULIYAR ROAD, HIRIYUR TOWN, CHITRADURGA DISTRICT-577598. …RESPONDENTS (BY SRI. ANANT MANDAGI, SENIOR COUNSEL FOR SRI. SRINIVAS B. NAIK, ADVOCATE FOR R1 & R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O.43 RULE 1(r) OF THE CPC, 1908, PRAYING TO CALL FOR ENTIRE RECORDS IN O.S.NO.116/2022, PENDING ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE BALLARI AND SET ASIDE THE IMPUGNED ORDER DATED 15.10.2024 ON I.A.NO.VI IN O.S.NO.116/2022 PASSED BY THE 1ST ADDITIONAL SENIOR CIVIL JUDGE BALLARI, WHICH WOULD MEET THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 20.03.2025 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) Defendants No.6 and 7 in O.S. No. 116/2022 on the file of learned I Addl. Sr. Civil Judge, Ballari [for short, ‘the trial Court’] have filed this appeal challenging the orders passed on I.A. No. VI filed by the plaintiffs under Order 39 Rule 1 and 2 CPC praying to restrain the defendants from alienating the suit schedule properties pending disposal of the suit. The said application was allowed by the trial Court by the impugned order dated 15.10.2024. Being aggrieved by the same, defendants No.6 and 7 have preferred this appeal. 2. The parties are referred to as per their ranking before the trial Court. 3. To dispose of this appeal, facts of the case of both parties are as under: Respondents No.1 and 2 herein are plaintiffs in O.S. No. 116/2022. It is the case of the plaintiffs that their - 4 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 paternal grandmother Smt. Hamsaveni purchased the suit property on 18.01.1945 for Rs.800/- and sale consideration was paid out of income of her husband D.Muralikrishna Naidu. The said Smt. Hamsaveni and Muralikrishna Naidu had four children by names, D.Balakrishna [dead], Smt. Kamala, Smt. Renuka and Smt.Vasanta Kumari. Plaintiffs are daughters of said D.Balakrishna and defendant No.1 is wife of said D.Balakrishna and a son D. Praveen Kumar. Defendants No.3 and 4 are daughters of Smt. Hamsaveni. Defendant No.5 was husband of another daughter of Smt. Hamsaveni by name Vasanta Kumari. The said Vasanta Kumari was stated to be missing since 1992. Defendants No.6 and 7 are the sons of said Vasanta Kumari. Smt. Hamsaveni and her husband are no more. The suit property is a joint family property of Smt. Hamsaveni and her husband. Therefore after their death all her children are entitled for a share. Plaintiffs and defendants No.1 and 2 together are entitled for 1/4th share in the said property. - 5 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 It is further case of plaintiffs that after death of Smt. Hamsaveni and her husband, defendants No.5 to 7 managed to mutate revenue records in their names illegally behind the back of plaintiffs and defendants No.1 to 4. Defendants No.6 and 7 have borrowed huge amount from various persons and now they are trying to alienate the properties. The suit properties are the self acquired property of Smt. Hamsaveni and her husband. Therefore defendants No.6 and 7 alone cannot deal with the said property and misappropriate the amount of the said property. The plaintiffs demanded for effecting partition of the suit property, but defendants No.6 and 7 refused to effect partition and hence plaintiffs were constrained to file suit. With these reasons plaintiffs prayed to partition of the suit property and allotment of their share in the suit property. 4. The contention of the appellants and defendants No.6 and 7 are that suit property was the absolute property of Smt. Hamsaveni. She purchased the suit properties from - 6 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 funds given by her parents’ side. It was not the joint family properties of plaintiffs and defendants No.1 to 4. Plaintiffs and defendants No. 1, 3 and 4 issued notice during the year 2009 calling upon defendants No.5 to 7 for partition and separate possession of their share in the property and the said notice was replied by the defendants No.5 to 7 denying their right to claim partition in the said property and after lapse of 14 years they filed the suit. Therefore the suit is barred by time and not maintainable. It is their further contention that Smt. Hamsaveni not only purchased the suit properties but also she had purchased some more properties, viz., Sy. No. 270 measuring 23.73 acres; Sy. No. 3A, Sy. No. 3B, Sy. No. 4A, Sy. No. 4B and Sy. No. 5, each measuring 19.38 acres, 1.20 acres, 13.53 acres, 4.01 acres and 12.75 acres, totally she acquired 50.96 acres of land in Sirigeri village. She also purchased agricultural lands at Vadatti village bearing Sy. No. 401B, 501B and 514B measuring 11.38 acres, 16.98 acres and 20.93 acres. She also purchased agricultural lands situated in M. Sugur village bearing Sy. No. 513A - 7 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 measuring 16.96 acres, 514A/1 measuring 11.03 acres and Sy. No. 514A/3 measuring 9.15 acres, totally measuring 37.41 acres. Great-grandmother of defendants No.6 and 7, i.e., Hamsaveni, settled all these properties in favour of her son and daughters. Mother of defendants No.6 and 7 went missing from the year 1992, and thereafter defendant No.5 got married again and deceased Hamsaveni was looking after and taking care of defendants No.6 and 7 and she was residing with them. Out of love and affection she had executed a registered Will, bequeathing the suit properties in favour of defendants No.6 and 7 dated 17.12.1996. Therefore defendants No.6 and 7 are absolute owners of suit properties. Plaintiffs or other defendants have no right over the same. With these reasons and some other reasons they prayed to dismiss the suit. 5. It is not in dispute that defendants No.6 and 7 applied for conversion of about four acres of land out of total extent, for non agricultural use and their application - 8 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 was allowed by the Deputy Commissioner, Ballari and thereafter they have stated to be formed layout in the said property. The plaintiffs filed I.A. No. VI under Order 39 Rule 1 and 2 of CPC praying to restrain the defendants from alienating the suit properties pending disposal of the suit. 6. Defendants No.6 and 7 objected for the said application on the grounds stated in their written statement. Along with that, they have also contended that defendants No.6 and 7 are totally depending upon the suit schedule properties for their livelihood. They are in the process of converting the suit land for non agricultural purpose and proceed for formation of layout. They have invested huge amount for development of the said land and formation of the layout. Plaintiffs with an intention to pressurize defendants No.6 and 7 to settle their claim have illegally filed the suit as well as the application. They are not entitled for any share in the suit schedule - 9 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 property. Therefore they prayed for dismissal of the said application. 7. The learned trial judge after hearing both parties passed impugned order dated 15.10.2024 allowed I.A. No. VI and restrained defendants No.6 and 7 from alienating the suit property till disposal of the suit. 8. Heard arguments of learned senior counsels appearing for both appellants and the respondents No.1 and 2 and perused the material placed on record. 9. Learned senior counsel appearing for the appellants submits that admittedly the suit property was purchased by Smt. Hamsaveni. She had not only purchased suit property but also acquired huge property situated in different villages as stated in the written statement and those properties were already settled in favour of her son and other daughters. These facts were completely suppressed by the plaintiffs. The plaintiffs have issued a notice during the year 2009 for partition of the suit property and it was replied by the defendants denying - 10 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 their right to claim share in the property and they kept quite for over 14 years and thereafter filed suit and therefore the suit is barred by time. Mother of defendants No. 6 and 7 was missing from the year 1992. Inspite of the efforts made by the defendants No.6 and 7 she was not traceable. Therefore defendants No.6 and 7 applied to the Corporation of Ballari reporting her deemed death/ legal death and the Corporation had issued death certificate of Vasanta Kumari. Later Hamsaveni after missing of Vasanta Kumari took care of defendants No.6 and 7 since their father also got married for the second time and she had executed a registered will in favour of defendants No.6 and 7 and thereafter they being absolute owner of the suit property, have been enjoying the suit property and they invested huge amount and got converted portion of the suit property to an extent of four acres. They also developed the property and formed layout. When the defendants No.6 and 7 intending to sell the said plots, plaintiffs filed this false suit with the false claim that they are entitled for a share in the said property - 11 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 and preventing the defendants No.6 and 7 from dealing with the said property. 10. The learned senior counsel for the appellants further submits that the entire extent of the suit property is about 10 acres and plaintiffs have got only 1/4th share according to their case and even if it is accepted then they are entitled for 1/4th share, i.e., around 2½ acres and there are vast other properties which are not included in the present suit and even if they are entitled for a share in all the properties then that could be considered by the Court by metes and bounds. Therefore they may be permitted to sell the plots formed in the suit schedule properties to meet the expenses for development of the land. 11. The defendants No.6 and 7 have filed joint affidavit in this regard before the trial court and the trial court without considering the other materials placed on record and only on the basis of joint affidavit filed by the defendants No.6 and 7 allowed the application filed by the plaintiffs, i.e., I.A. No. VI without considering materials - 12 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 placed on record. Therefore the said order is arbitrary, perverse and erroneous and hence prayed for interfering with the said order. 12. The learned senior counsel appearing for the respondents would submit that the suit property is the joint family properties and when the suit is filed for partition, the status of the property should be maintained in tact pending disposal of the case. No member of the family shall be permitted to sell the suit property which would cause irreparable loss to the rights of the other members of the family. He further submits that the defendants No.6 and 7 have illegally managed to enter their names in the revenue records after the death of Smt.Hamsaveni, behind the back of plaintiffs and other members of the family. It is not disputed by the defendants No.6 and 7 that they got converted portion of the suit property and formed a layout. The portion of suit property wherein layout is formed is valuable part of the suit property and it is abutting to the main road. - 13 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 Defendants No.6 and 7 are intending to sell the said property to various persons, which leads to more complications. Both the plaintiffs as well as the proposed purchasers of the property would also suffer. Plaintiff may have to implead them and fight against them to maintain status quo of the property. It is a settled law that, when a suit for partition is pending, statusquo shall be maintained in respect of nature of the property, title and possession of the property. Hence the learned trial Judge has properly considered the contentions of the parties and rightly allowed the application and it does not call for any interference by this Court. 13. The learned senior counsel further submits that Smt.Vasanta Kumari was missing since 1992 according to the contention of her husband and children. Till this day, they did not file any suit seeking the relief of declaration that she be declared as dead. Unless such a relief was obtained from the competent civil Court, the defendants No.6 and 7, themselves cannot declare that she is dead. - 14 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 They have managed with the Corporation, to get death certificate of Vasanta Kumari without following the prescribed procedure of law. The contention of the defendants that suit is barred by time as there are vast properties belonging to Hamsaveni that was settled in favour of her son and other daughters could be considered at the time when the case is taken up on merits. That cannot come in the way of the claim of plaintiffs in their right to prevent defendants No.6 and 7 from exclusive use the suit property by them. 14. Undisputedly the suit property was purchased by Hamsaveni during the year 1945 and after her death her sons and daughters are entitled for share in the suit property. Therefore defendants No.6 and 7 cannot contend that they are only entitled for the suit property and it is their absolute property and they cannot take a particular portion of the property as their share till the property is divided by metes and bounds. No member of the family or no co-owner of the property canclaim - 15 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 absolute right in respect of a portion of the joint family property as per his whims and fancy. Under such circumstances, the appellants have no right to sell the sites formed in the suit property. The high handedness of the defendants No.6 and 7 indicates that they intended to sell property just to defeat the rights of the plaintiffs. These facts were considered by the trial Court and rightly granted the relief, which does not call for interference by this Court. Hence prayed to dismiss the appeal. 15. The following question arises for determination of this Court: Whether the order passed by the learned trial Judge on I.A. No. VI is arbitrary, perverse and capracious and interference by this Court is necessary? The said question answered in the negative for the following reasons. 16. It is an undisputed fact that Smt. Hamsaveni purchased the suit property in the year 1945 under a - 16 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 registered sale deed. Plaintiffs are daughters of Balakrishna, who was son of Hamsaveni. In the absence of the alleged settlement contended by the defendants No.6 and 7 or in the absence of the will propounded by defendants No.6 and 7, as a legal heir, plaintiffs are entitled for share in the suit property. 17. It is not in dispute that defendants No.6 and 7 applied to the Deputy Commissioner for conversion of the portion of the suit property for non agricultural use and it is clearly submitted by the learned senior counsel appearing for the defendants No.6 and 7 that they formed layout and developed the said land by investing huge amount and formed sites to an extent of four acres out of suit property and they intended to sell few sites to meet the expenses of development of the land. Therefore contention of the plaintiffs that defendants No.6 and 7 are intending to alienate portion of the suit property is not in serious dispute. - 17 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 18. The contentions of the defendants No.6 and 7 that the suit is barred by time since plaintiff had issued notice during the year 2009, claiming for partition of the property and it was replied by defendants No.6 and 7 and they refused to effect partition and thereafter plaintiffs did not initiate any action to file suit for claiming share in the suit property. They filed the suit after lapse of 14 years from issuing such notice. Therefore they have lost their right. 19. Looking to the contentions of the parties and documents produced by the defendants No.6 and 7 before this Court, the said question of limitation is not an exclusive question of law but it is a mixed question of fact and law; that has to be considered during the trial of the case and at this juncture the suit cannot be dismissed only on the ground of limitation. 20. The other main contention of the learned senior counsel for the defendants No.6 and 7 that there are several properties belonging to Smt.Hamsaveni and those properties were settled in favour of her son and daughters. - 18 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 Defendants No.6 and 7 have produced RTCs and mutation extracts and Xerox copies of its translation in respect of other properties purchased by Hamsaveni. Defendants No.6 and 7 contend that these properties were not added in the suit and they included only the properties allotted to the share of mother of defendants No.6 and 7 and thereafter bequeathed in favour of defendants No.6 and 7 by Hamsaveni. Therefore the suit is not maintainable. If contention of the defendants No.6 and 7 is true, then the suit may be bad for not inclusion of the family properties. That needs to be considered while deciding the suit on merits. At this juncture only on that ground the plaint cannot be rejected under Order 7 Rule 11 CPC. 21. Looking to the contentions of the parties, there are triable issues between the parties in the suit. From the pleadings of the parties and materials placed before the Court, it does not appear to be frivolous or vexatious suit. Hence the dispute needs investigation and are to be - 19 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 decided by the trial Court on merits during the course of trial. 22. It is settled principle of law that during the pendency of the suit especially in a suit for partition, the subject matter of the suit shall be maintained in tact. Defendants No.6 and 7 be permitted to deal with the suit property as per their wish, on the ground that they have invested huge amount for conversion of the said land and formation of sites. If they sell the property, i.e., the portion wherein they developed and formed layout, then the right of the parties to the suit will be seriously affected. Not only that the rights of intending purchaser who may not know about the pendency of the litigation and bonafide purchasers may also suffer. Therefore to protect the interest of both plaintiffs as well as the intending purchasers, it was necessary for the trial court to grant the relief of temporary injunction as prayed in I.A. No. VI. 23. As rightly submitted by the learned senior counsel for the plaintiffs if application was allowed by the trial court, - 20 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 then it would amount to forceful partition and allotment of share in favour of defendants No.6 and 7. It is also settled principle that in case suit for partition, each party got equal right over each piece of the subject matter of the partition suit. 24. Considering all these facts the learned trial judge rightly allowed the application and granted the relief as prayed for in I.A. No. VI. The said order is not perverse, arbitrary or illegal and interference by this Court is not required. 25. For the above said reasons, the question framed above are answered in the negative and pass the following order. ORDER Appeal is dismissed. Impugned order passed by the learned trial Judge on I.A. No. VI filed under Order 39 Rule 1 and 2 r/w Sec. 94 - 21 - NC: 2025:KHC-D:5745 MFA No. 105526 of 2024 of CPC in O.S. No. 116/2022 dated 15.10.2024 is confirmed. Registry is directed to send a copy of this order to the trial Court. Sd/- (UMESH M ADIGA) JUDGE BVV /CT-AN List No.: 2 Sl No.: 1