- 1 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MFA NO.101676 OF 2024 (CPC) C/W. MFA NO.101704 OF 2024 (CPC) IN MFA NO. 101676 OF 2024: BETWEEN: SHRI. BALASAHEB S/O. PARASHURAM SHEDAKE, AGE 75 YEARS, OCC: RTD. GOVT SERVANT, R/O. LAXMISINGANAKERE ROAD, DHARWAD-580007. …APPELLANT (BY SRI. Y. R. JOGI, ADVOCATE) AND: 1. SHRI. KALLAPPA S/O. GUNDU SHARABIDRI, AGE 65 YEARS, OCC: RTD GOVT SERVANT, R/O. KURUBAR ONI, NOW AT SUGAR FACTORY LINE ROAD, BELLADA BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI. 2. SMT. KAMAL W/O. SADASHIV SHETAKE, AGE 56 YEARS, OCC: HOUSEHOLD, R/O. MULLA ONI, RAYABAGA, TQ. RAYABAGA, DIST. BELAGAVI-591317. 3. SHRI. RAJARAM S/O. GUNDU SHARABIDRI URFA, SHARABIDRE, AGE 55 YEARS, OCC: LABOUR SUGAR FACTORY BELLADA BAGEWADI, R/O. KURUBAR ONI, BELLADA BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 THE TAHASHILDAR, DHARWAD, TALUK & DISTRICT: DHARWAD. (DELETED AS PER COURT ORDER). THE ASSISTANT COMMISSIONER, DHARWAD, TALUK & DISTRICT: DHARWAD. (DELETED AS PER COURT ORDER). 4. RAVI S/O. CHANDRASHEKHAR ARAGANNAVAR, AGED ABOUT 49 YEARS, OCC: AGRICULTURE, R/O. GADAG, TQ AND DIST. DHARWAD-580105. 5. SAIYADDADASAB S/O. KHALADAR PEERAJADE, AGED ABOUT 41 YEARS, OCC: AGRICULTURE, R/O. GADAG, TQ AND DIST. DHARWAD-580105. 6. SACHIN S/O. KALLAPPA SAHARABIDRE, AGED ABOUT 29 YEARS, OCC: POLICE CONSTABLE, R/O. HASAN, TQ AND DIST. HASAN-573201. 7. ANASUYYA W/O. KALLAPPA SHAHARABIDRE, AGED ABOUT 56 YEARS, OCC: HOUSE HOLD, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 8. PRAVEEN S/O. RAJARAM SHARABIDRE, AGED ABOUT 25 YEARS, OCC: NIL, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 9. PRATHAMESH S/O. RAJARAM SHAHARABIDRE, AGED ABOUT 22 YEARS, OCC: NIL, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 10. NIKHITA W/O. SIDDAPPA GODAKE, AGED ABOUT 31 YEARS, OCC: HOUSE HOLD, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 11. CHAYA W/O. RAJU SHARABIDRE, AGED ABOUT 53 YEARS, OCC: HOUSE HOLD, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. - 3 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 12. PRASHANT S/O. SADASHIV SHETAKE, AGED ABOUT 26 YEARS, OCC: BUSINESS, R/O. MULLA ONI, RAYABAG, TQ. RAYABAG, DIST. BELAGAVI-591317. 13. VITTAL S/O. KALLAPPA KANTENNAVAR, AGED ABOUT 31 YEARS, OCC: PRIVATE SERVICE, R/O. GARAG, TQ & DIST. DHARWAD-580105. …RESPONDENTS (BY SRI. V. G. BHAT, ADV. FOR R1 TO R3; R1 IS GPA HOLDER OF R2 & R3; SRI. SHIVAKUMAR S. BADAWADAGI, ADV. FOR R4 & R5; NOTICE TO R6, R9, R10 & R11 HELD SUFFICIENT; NOTICE TO R7, R8, R12 & R13 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O.43 RULE 1(r) R/W SEC.104 OF CPC, PRAYING TO SET ASIDE THE ORDER PASSED ON I.A.NO.1 AND IV ON 20.02.2024 IN O.S.NO.354/2022 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM DHARWAD AND ALLOW THE I.A.NO.I IN O.S.NO.354/2022 BEFORE THE HON’BLE PRINCIPAL SENIOR CIVIL JUDGE AND CJM DHARWAD AND ETC. IN MFA NO. 101704 OF 2024: BETWEEN: SHRI. BALASAHEB S/O. PARASHURAM SHEDAKE, AGE 75 YEARS, OCC: RTD. GOVT SERVANT, R/O. LAXMISINGANAKERE ROAD, DHARWAD-580007. …APPELLANT (BY SRI. Y. R. JOGI, ADVOCATE) AND: 1. SHRI. KALLAPPA S/O. GUNDU SHARABIDRI, AGE 65 YEARS, OCC: RTD GOVT SERVANT, R/O. KURUBAR ONI, NOW AT SUGAR FACTORY LINE ROAD, BELLADA BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI. - 4 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 2. SMT. KAMAL W/O. SADASHIV SHETAKE, AGE 56 YEARS, OCC: HOUSEHOLD, R/O. MULLA ONI, RAYABAGA, TQ. RAYABAGA, DIST. BELAGAVI-591317. 3. SHRI. RAJARAM S/O. GUNDU SHARABIDRI URFA, SHARABIDRE, AGE 55 YEARS, OCC: LABOUR SUGAR FACTORY BELLADA BAGEWADI, R/O. KURUBAR ONI, BELLADA BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. THE TAHASHILDAR, DHARWAD, TALUK & DISTRICT: DHARWAD. (DELETED AS PER COURT ORDER). THE ASSISTANT COMMISSIONER, DHARWAD, TALUK & DISTRICT: DHARWAD. (DELETED AS PER COURT ORDER). 4. RAVI S/O. CHANDRASHEKHAR ARAGANNAVAR, AGED ABOUT 49 YEARS, OCC: AGRICULTURE, R/O. GADAG, TQ AND DIST. DHARWAD-580105. 5. SAIYADDADASAB S/O. KHALADAR PEERAJADE, AGED ABOUT 41 YEARS, OCC: AGRICULTURE, R/O. GADAG, TQ AND DIST. DHARWAD-580105. 6. SACHIN S/O. KALLAPPA SAHARABIDRE, AGED ABOUT 29 YEARS, OCC: POLICE CONSTABLE, R/O. HASAN, TQ AND DIST. HASAN-573201. 7. ANASUYYA W/O. KALLAPPA SHAHARABIDRE, AGED ABOUT 56 YEARS, OCC: HOUSE HOLD, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 8. PRAVEEN S/O. RAJARAM SHARABIDRE, AGED ABOUT 25 YEARS, OCC: NIL, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 9. PRATHAMESH S/O. RAJARAM SHAHARABIDRE, AGED ABOUT 22 YEARS, OCC: NIL, - 5 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 10. NIKHITA W/O. SIDDAPPA GODAKE, AGED ABOUT 31 YEARS, OCC: HOUSE HOLD, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 11. CHAYA W/O. RAJU SHARABIDRE, AGED ABOUT 53 YEARS, OCC: HOUSE HOLD, R/O. BELLAD BAGEWADI, TQ. HUKKERI, DIST. BELAGAVI-591305. 12. PRASHANT S/O. SADASHIV SHETAKE, AGED ABOUT 26 YEARS, OCC: BUSINESS, R/O. MULLA ONI, RAYABAG, TQ. RAYABAG, DIST. BELAGAVI-591317. 13. VITTAL S/O. KALLAPPA KANTENNAVAR, AGED ABOUT 31 YEARS, OCC: PRIVATE SERVICE, R/O. GARAG, TQ & DIST. DHARWAD-580105. …RESPONDENTS (BY SRI. V. G. BHAT, ADV. FOR R1; SRI. SHIVAKUMAR S. BADAWADAGI, ADV. FOR R4 & R5; NOTICE TO R2, R3, R6 TO R12 HELD SUFFICIENT; NOTICE TO R13 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/O.43 RULE 1(r) R/W SEC.104 OF CPC, PRAYING TO SET ASIDE THE ORDER PASSED ON I.A.NO.1V ON 20.02.2024 IN O.S.NO.354/2022 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM DHARWAD AND ALLOW THE I.A.NO.IV IN O.S.NO.354/2022 BEFORE THE HON’BLE PRINCIPAL SENIOR CIVIL JUDGE AND CJM DHARWAD AND ETC. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. Both these appeals arise out of a common order dated 20.02.2024 passed by the learned Prl. Senior Civil Judge and CJM, Dharwad in O.S. No.354/2022. The plaintiff filed I.A. No.1 under Order 39 Rule 1 and 2 of CPC seeking an ad-interim relief of temporary injunction to restrain the defendants from alienating the suit property bearing Sy.No.510 measuring 3 acres 1 gunta, situated in Garag Village, Dharwad District. Further, the plaintiff filed I.A. No.4 under Order 39 Rule 1 and 2 of CPC, seeking an ad-interim relief of temporary injunction to restrain the defendants from interfering with their peaceful possession and enjoyment of the suit property. 2. For the sake convenience, the parties are referred to as per their ranking before the trial Court. 3. It is the case of the plaintiff that his maternal uncle, one Gundu Sharabidri executed a Will in his favour - 7 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 on 09.02.2008, bequeathing the suit property in his favour and the said Gundu died on 03.03.2008. After the death of Gundu, the plaintiff became owner of suit property by virtue of the Will and came in possession and enjoyment of the suit property. He has been in continuous possession and cultivation of the same. During the year 2022, defendant Nos.1 and 2 filed an application to mutate the revenue records in their names and accordingly their names were entered in the revenue records. The plaintiff filed an application for cancellation of the said entry. Thereafter the defendants trying to interfere with his peaceful possession and enjoyment of the suit property. Therefore, the plaintiff seeks relief of declaration that he become the owner of the suit property by virtue of the Will dated 09.02.2008 and a further declaration that the order passed by the Tahsildar is not binding on him. 4. Defendant Nos.1 to 3 filed the written statement before the trial Court, denying the contention of the plaintiff and denied that the Gundu had executed a - 8 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 Will in favour of the plaintiff. Their contention is that as the legal heirs, they succeeded to the suit property and have been in possession and enjoyment of the suit property. It is further stated that defendant Nos.1 to 3 sold the entire suit property to defendant Nos.4 and 5. Defendant Nos.4 and 5 contended that they had developed a portion of the said land; got converted and framed a layout. The defendant Nos.4 and 5 have been carrying out development work on the remaining portion of suit property. Some of the plots were already sold. They also contended that the plaintiff at no point of time disclosed the existence of the alleged Will. After the development work has been completed the suit is filed. Therefore, they prayed for the dismissal of the suit. 5. Learned trial Judge after hearing both the parties, considering the contention of the parties and on perusing the records, rejected both applications by the impugned order. The same is challenged by the appellant - 9 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 in the aforesaid two appeals, on the grounds mentioned in the appeals. 6. I have heard the arguments of the learned counsel appearing for both parties. 7. The following point arises for consideration: (i) Whether the order of the learned trial Judge is perverse, arbitrary, and illegal, warranting interference by this Court? 8. My findings on the above point is partly in the affirmative for the following reasons: 9. The plaintiff has produced a copy of the Will said to be executed by the deceased Gundu on 09.02.2008. The death certificate is produced and it shows that he died on 03.03.2008. It is not in dispute that after the death of Gundu, the plaintiff at no point of time tried to mutate his name in the revenue records based on the Will. It appears that the Will saw the day of light only 13 to 14 years after the death of Gundu. - 10 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 10. Learned counsel for the appellant contends that even defendant Nos.1 to 3 did not attempt to get their names entered in the revenue records, therefore the plaintiff had no cause of action to place the Will before the Revenue Authorities, to mutate his name. said facts are to be considered during the trial of the matter. However, there are no material on record to show that the Will was acted upon or that the revenue records were mutated in the name of plaintiff. Except few photographs produced before the trial Court, there are no materials to establish that the plaintiff has been in actual possession of the suit property. The learned trial Judge considering this point elaborately in the impugned order, rightly came to the view that the plaintiff was unable to prove his actual amnd physical possession and enjoyment of the suit property. 11. On reconsideration of the materials available on record by this Court, it is of the view that the findings of the trial Court in respect of I.A. No.4 filed under Order 39 Rule 1 and 2 of the CPC, is proper and it does not call for - 11 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 any interference. Plaintiff has not made out prima facie case. Balance of convenience does not lie in his favour. If injunction is granted then defendant Nos.1 to 3, who are natural heirs of deceased Gundu would suffer hardship. Accordingly, orders passed on I.A. No.4 by the trial Court is confirmed. 12. The dispute between the parties is in respect of the succession to the suit property, either by testamentary succession or intestate succession. The plaintiff claims his right by way of testamentary succession and the defendants are claiming their right as a legal heirs. In case if entire properties are alienated or transferred in any mode then it would affects rights of the parties. If ultimately the suit is decreed, nothing remain for the plaintiff to enjoy the property. Even the innocent proposed purchaser of the suit property may also suffer by litigation. Therefore, under the facts and circumstances of the case, it is appropriate to maintain a status quo in respect of the alienation of the property. - 12 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 13. In respect of I.A. No.1, plaintiff has made out prima facie case. Balance of convenience also is in favour of plaintiff. If temporary injunction is not granted then plaintiff would suffer by irreparable loss and injury. The learned trial Judge ought to have considered the rights of the plaintiff on the ground of equity. Hence, the said finding is erroneous. In view of the aforesaid facts and circumstances of the cases, this Court is of the considered view that the reason assigned by the trial Court is erroneous, which does call for interference by this Court. 14. For the aforesaid discussion, following order is passed: ORDER (i) MFA No.101676/2024 is allowed. Orders passed on I.A. No.1 dated 20.02.2024 in O.S. No.354/2022 on the file of Prl. Senior Civil Judge and CJM, Dharwad is set aside. I.A. No.1 is allowed. Defendants are restrained from alienating suit property in - 13 - NC: 2025:KHC-D:5170 MFA No. 101676 of 2024 C/W MFA No. 101704 of 2024 any mode pending disposal of O.S. No.354/2022. (ii) MFA No.101704/2024 is dismissed. Orders passed on I.A. No.4 dated 20.02.2024 in O.S. No.354/2022 on the file of Prl. Senior Civil Judge and CJM, Dharwad is confirmed. (iii) The Registry to send a copy of this order to the trial Court forthwith. Sd/- (UMESH M ADIGA) JUDGE VNP /CT-AN List No.: 1 Sl No.: 50