- 1 - HC-KAR NC: 2025:KHC-D:7818 MFA No. 102289 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 102289 OF 2023 (CPC) BETWEEN: SMT. SIDDAMMA D/O SIDDARAMAYYA VADEYAR AFTER MARRIAGE SMT. SIDDAMMA W/O SANNAVIRAPPA JAGANNAVAR, AGE: 76 YEARS, OCC: HOUSE WIFE, R/O: F-3, B-32 MILROC RIBANDAR RETREAT, RIBANDAR, NORTH GOA, GOA-403 006. … APPELLANT (BY SRI. DINESH M. KULKARNI, ADVOCATE) AND: 1. MALLAIAH S/O SIDDRAMAIAH VADEYAR, AGE: 71 YEARS, OCC: AGRICULTURE, R/O: #271, 31ST WARD, 6TH CROSS, NEAR SANNAKEPPA TEMPLE, N.C. COLONY, HOSPET-583 203. 2. SHAILAJA D/O PARAMESHWAR GOUDA PATIL (WHO IS FALSELY AND ILLEGALLY CLAIMS TO BE THE WIFE OF DEFENDANT NO.1 MALLAIAH), AGE: 53 YEARS, OCC: HOUSEWIFE, R/O: #271, 31ST WARD, 6TH CROSS, NEAR SANNAKEPPA TEMPLE, N.C. COLONY, HOSPET-583 203. 3. GURUSHANTAMMA W/O THEJAIAH VADEYAR, AGE: 68 YEARS, OCC: HOUSEHOLD, R/O: 271, 31ST WARD, 6TH CROSS, NEAR SANNAKEPPA TEMPLE, N.C. COLONY, HOSPET-583 203. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7818 MFA No. 102289 of 2023 4. BHARATHI D/O THEJAIAH VADEYAR, AFTER MARRIAGE SMT. BHARATHI W/O SHIVANAND GADAG, AGE: 45 YEARS, OCC: HOUSE WIFE, R/O: F-3, B-32, MILROC RIBANDAR RETREAT, RIBANDAR, NORTH GOA, GOA-403 006. 5. HEMAVATI D/O THEJAIAH VADEYAR AFTER MARRIAGE SMT. HEMAVARI W/O RAJU K., AGE: 44 YEARS, OCC: HOUSE WIFE, R/O: #840, 14TH CROSS, 1ST STAGE, 1ST PHASE, CHANDRA LAYOUT, NAGARBHAVI, BANGALORE-560 072. 6. LEELA D/O THEJAIAH VADEYAR AFTER MARRIAGE SMT. LEELA W/O BASAVRAJ LAKKANNAVAR, AGE: 42 YEARS, OCC: HOUSEHOLD, R/O: PLOT NO.67, TAKKE ROAD, NEAR AYYAPPA TEMPLE, KALYANA NAGAR, BIJAPUR SAINIK SCHOOL, VIJAYPURA-586 102. 7. SHIVAKUMAR S/O THEJAIAH VADEYAR, AGE: 38 YEARS, OCC: AGRICULTURE, R/O: #271, 31ST WARD, 6TH CROSS, NEAR SANNAKEPPA TEMPLE, N.C. COLONY, HOSPET-583 203. … RESPONDENTS (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R1 AND R2) SRI. G.G. GADAG, ADVOCATE FOR R4 AND R7; SRI. PRAVEEN GEJJI, ADVOCATE FOR R5) THIS MFA IS FILED UNDER ORDER 43 RULE 1(R) OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 12.04.2023 PASSED IN O.S. NO.73/2021 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HUBBALLI. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:7818 MFA No. 102289 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Though the appeal is listed for admission with consent of learned counsel for the parties the matter is taken up for final disposal. 2. This Miscellaneous First Appeal is filed by the appellant/plaintiff under Order XLIII Rule 1 R/w Section 151 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), challenging the application I.A.No.II filed under Order XXXIX Rules 1 and 2 of the CPC in O.S.No.73/2021 dated 12.04.2023 on the file of III Additional Senior Civil Judge and JMFC, Hubballi (for short, the ‘Trial Court’), thereby, the application I.A.No.II is dismissed. 3. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 4. The appellant/plaintiff has filed a suit for partition and separate possession by metes and bounds over the suit schedule properties. The plaintiff has filed an application under Order XXXIX Rules 1 and 2 of the CPC for an order of - 4 - HC-KAR NC: 2025:KHC-D:7818 MFA No. 102289 of 2023 temporary injunction contending that defendant No.1 is going to alienate the suit properties, therefore, it would prejudice the rights of the plaintiff for claiming her share in the suit schedule properties. The said application is opposed by defendant Nos.1 and 2. The Trial Court has rejected the said application. Being aggrieved by it, the plaintiff has preferred the present appeal. 5. The learned counsel for the appellant/plaintiff submitted that defendant No.1 is going to alienate the suit properties, which prejudices the claim of the plaintiff. Therefore, prays for order of temporary injunction. 6. On the other hand, learned counsel for respondent No.1/defendant No.1 submitted that there were partition in the year 1955 and in the said partition whatever properties were given to the share of defendant No.1, against these properties, now the plaintiff has filed an application for order of temporary injunction, which itself shows the malafide intension of the plaintiff. It is submitted that all the properties appeared in the registered partition deed of the year 1955, were not included in the present suit. It is further submitted that the share given in the property bearing Sy.No.447 was sold by the plaintiff, but - 5 - HC-KAR NC: 2025:KHC-D:7818 MFA No. 102289 of 2023 that is not included in the suit property and other properties in the suit. Therefore, on all these reasons, the Trial Court has rightly dismissed the application, which needs no interference of this Court. Thus, prays to dismiss the appeal. 7. Defendant Nos.1 and 2 have produced a registered partition deed dated 07.04.1955 and as per this partition deed, whatever properties were given to the share of defendant No.1, against these properties, now the plaintiff has filed application I.A.No.II for an order of temporary injunction, but not against other properties. It is the apprehension of the plaintiff that defendant No.1 had executed Gift Deed in favour of defendant No.2 during pendency of the suit. Therefore, apprehended that defendant No.1 may also alienate the suit properties. Though the plaintiff is disputing defendant No.2 is not a wife of defendant No.1, but it is the counter made by learned counsel for the respondents/defendants that defendant No.2 is the wife of defendant No.1 and their marriage is registered marriage. Therefore, Gift Deed made by defendant No.1 prima facie is in favour of his wife defendant No.2, but not in a name of stranger. The plaintiff’s interest is protected as per Section 52 of the Transfer of property Act, 1882. There is no explanation - 6 - HC-KAR NC: 2025:KHC-D:7818 MFA No. 102289 of 2023 from the plaintiff why the said land bearing Sy.No.447 was not included in the suit properties. Further defendant Nos.1 and 2 have pleaded that certain items in the suit properties are self acquired properties. Therefore, considering the preponderance of probability of materials involved in the case at this stage, the plaintiff has not made out prima facie case so as to grant an order of temporary injunction by exercising discretion of the Court. With these observations, the Trial Court has rightly dismissed the application. However, it is also pleaded by defendant Nos.1 and 2 that they are not going to make alienation of suit properties. When this being so, it protects the interest of the plaintiff, besides having protection under Section 52 of the Transfer of Property Act, 1882. 8. Therefore, it is not a fit case so as to exercise discretion to grant an order of temporary injunction, which is rightly dismissed by the Trial Court. Therefore the order passed by the Trial Court is found to be correct and needs no interference of this Court. Hence, with these observations, the appeal is dismissed. - 7 - HC-KAR NC: 2025:KHC-D:7818 MFA No. 102289 of 2023 9. In view of dismissal of appeal, pending I.A’s, if any, shall automatically stands disposed off. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP CT:BCK LIST NO.: 1 SL NO.: 40