- 1 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23RD DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100194 OF 2024 (INJ) BETWEEN: 1. SHRI. SHIVANAND S/O. RAMAPPA TALAWAR, AGE: 32 YEARS, OCC: PRIVATE WORK, R/O: MUDHOLE GALLI, JAMKHANDI, DIST: BAGALKOT – 587 301. 2. SHRI. SADANAND S/O. RAMAPPA TALAWAR, AGE: 30 YEARS, OCC: PRIVATE WORK, R/O: MUDHOLE GALLI, JAMKHANDI, DIST: BAGALKOT – 587 301. …APPELLANTS (BY SRI. VITTHAL S. TELI, ADVOCATE) AND: 1. SMT. SUSHILAVVA W/O. RAMAPPA ALABAL, AGE: 48 YEARS, OCC: COOLIE, R/O: AZAD NAGAR JAMKHANDI, DIST: BAGALKOT – 587 301. 2. SMT. KALAWATI @ KAMALAVVA W/O. MUTTAPPA ALABAL, AGE: 38 YEARS, OCC: COOLIE, R/O: AZAD NAGAR, JAMKHANDI, DIST: BAGALKOT – 587 301. …RESPONDENTS THIS RSA IS FILED UNDER ORDER XLII RULE 1 R/W SECTION 100 OF CODE OF CIVIL PROCEDURE 1908 PRAYING TO, CALL FOR RECORDS IN OS NO.01/2021 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT JAMKHANDI AND IN RA NO.7/2023 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS AT JAMKHANDI. TO SET ASIDE JUDGMENT AND DECREE DATED 29.09.2023 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS JAMKHANDI IN RA NO. 07/2023 AND THE JUDGMENT AND DECREE DATED 09.12.2022 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, AT JAMKHANDI IN OS NO. 01/2021 AND ETC., Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 THIS APPEAL, COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is by the plaintiffs aggrieved by the judgment and decree dated 09.12.2022 passed in OS No.1/2021 on the file of Principal Civil Judge and JMFC, Jamkhandi (for short, ‘Trial Court’) in terms of which the suit of the plaintiffs seeking relief of mandatory injunction is dismissed which is confirmed by judgment and decree dated 29.09.2023 passed in RA No.7/2023 on the file of Principal Senior Civil Judge and JMFC, Jamkhandi (for short, ‘First Appellate Court’). 2. Case of the plaintiffs is that; (a) one Bhimappa and Shivappa Talawar were the sons of Ramappa Talawar and also the owners of property bearing CTS No.1150, measuring 25.92 square metres situated at Mudhole Galli, Jamkhandi having purchased in terms of registered deed of sale date 05.11.1960. That Bhimappa passed away on 15.05.1992 leaving behind him his wife Gouravva and son - 3 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 Ramappa. Names of his wife and son were mutated in the revenue records as his legal heirs. (b) That Shivappa Talawar who had ½ share in the aforesaid property had executed Will in favour of plaintiffs as his wife Chandrawwa was not looking after him. (c) That the defendants and their mother – Chandrawwa had filed a suit for partition and separate possession, claiming property in CTS No.1151A/2 and CTS No.1150 as ancestral joint family properties in OS No.16/2004 and the plaint in the said suit was returned to be presented before the Court having jurisdiction. When the said plaint was presented before the Senior Civil Judge by order dated 06.06.2009 the same was again returned on the ground of the said Court not having pecuniary jurisdiction. As such, a suit came to be filed before the Trial Court in OS No.125/2009. (d) That during the pendency of said suit, father of the plaintiffs passed away and the suit was dismissed on - 4 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 19.11.2013 holding that the suit properties are the self acquired properties of Bhimappa and Shivappa. (f) That being aggrieved by the same, the defendants preferred an appeal in RA No.25/2014, which also came to be dismissed on 21.10.2020. (e) That the defendants with an intention of causing hardship to the plaintiffs have put a door lock on the property bearing CTS No.1150. That after the death of Shivappa, plaintiffs have become the absolute owners in terms of a registered Will executed by him in favour of plaintiffs. Plaintiffs cause issue of notice dated 09.07.2020 seeking removal of the lock which was denied by the defendants. Hence, a suit for relief of mandatory injunction. 3. The defendants remained ex-parte. Plaintiffs examined himself as PW1 and exhibited 8 documents marked at Ex.P1 to P8. The Trial Court framed the following points for its consideration: - 5 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 1. Whether plaintiffs are entitled for the reliefs as sought for? 2. What order or decree? 4. On appreciation of evidence, the Trial Court answered the same in the negative resulting in dismissal of this suit. Being aggrieved by the same, the plaintiffs preferred regular appeal in RA No.7/2023. The First Appellate Court framed the following points for its consideration: 1. Whether the appellants have made out ground to condone the delay in preferring the appeal? 2. Whether the findings of the trial court on various points are in accordance with law and facts? 3. Whether judgment and decree under appeal is opposed to the law, facts capricious and thereby warranting interference by this court? 4. What order or Decree? 5. On re-appreciation of the matter, the First Appellate Court answered point Nos.1 and 2 in the affirmative and point No.3 in the negative and - 6 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 consequently, dismissed the appeal. Being aggrieved, the plaintiffs are before this Court. 6. Sri. Vitthal S. Teli, learned counsel for the appellants/plaintiffs reiterating the grounds urged in the memorandum of appeal submits that the Trial Court and the First Appellate Court have failed to appreciate the material evidence placed on record, namely, execution of Will by Shivappa in favour of the plaintiffs and the plaintiffs becoming owners in possession of the said property. The Trial Court and the First Appellate Court despite there being no contest by the defendants and their evidence having remained unchallenged, dismissed the suit instead of decreeing the same in terms of Order VIII Rule 1 of Code of Civil Procedure, 1908 and Section 50 of the Evidence Act. That Ex.P.8 is the certified copy of the Will establishing the right, title and interest of the plaintiffs over the suit properties which has been kept in lock and key by the defendants. The non-response of the defendants to the notice caused issued by the plaintiffs was sufficient enough for the Trial Court and the First - 7 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 Appellate Court to have drawn adverse inference decreeing the suit as prayed for. Hence, he submits the substantial question of law would arise for consideration. 7. Heard and perused the records. 8. Though the plaintiffs have claimed their right, title and possession over the suit property based on a Will, the Trial Court and the First Appellate Court have found the contention of plaintiffs with regard to defendants locking out the suit premises unacceptable. The Trial Court and the First Appellate Court have opined that the plaintiffs have neither pleaded nor provided any particular date on which they were dispossessed from the suit property by the defendants by putting up lock to the suit premises. Since the plaint averments being vague and ambiguous lacking particulars with regard to the date of dispossession of the plaintiffs from the suit property, the Trial Court and the First Appellate Court have declined to grant the relief of mandatory injunction which is the discretionary relief. - 8 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 9. In addition, the First Appellate Court has also found from the records that as per the pleading Bhimappa and Shivappa have purchased the suit schedule properties and each of them were entitled for ½ equal share therein. However, the plaintiffs have given description of the entire property. It is also noted that eastern side boundary is shown as property of the plaintiffs without giving any further details, as such, it is found that the description of property is also vague and incorrect. 10. For the foregoing reasons, the Trial Court and the First Appellate Court have deemed it appropriate to dismiss the suit of the plaintiffs. 11. Necessary to note that the principle governing grant of mandatory injunction is envisaged under Section 39 of the Specific Relief Act, which reads as under: 39. Mandatory injunctions—When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. - 9 - HC-KAR NC: 2025:KHC-D:8269 RSA No. 100194 of 2024 12. Thus, purpose of mandatory injunction is to restore state of things to the former rightful order. As rightly taken note of by the Trial Court and the First Appellate Court in the absence of plaintiffs providing any particulars with regard to the date and time of their dispossession supported by acceptable evidence in that regard, discretionary relief of mandatory injunction as sought for cannot be granted. No error or illegality can be found in the reasons and conclusion arrived at by the Trial Court and the First Appellate Court. No substantial question of law would arise for consideration. Accordingly, the appeal is dismissed. 13. It is made clear that the plaintiffs are at liberty to seek such remedy as may be permissible and available under law notwithstanding the dismissal of the suit. Sd/- (M.G.S. KAMAL) JUDGE SMM/CT-ASC List No.: 1 Sl No.: 46