- 1 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 3492 OF 2025 C/W MISCELLANEOUS FIRST APPEAL NO. 3664 OF 2025 (CPC) IN MFA No. 3492/2025: BETWEEN: SMT. SHAKUNTHALA, W/O RAMACHANDRA, AGED ABOUT 38 YEARS, RESIDING AT NO.1, 1ST MAIN ROAD, 1ST CROSS, BANGARAPPA NAGARA, RAJARAJESHWARINAGAR, BENGALURU-560026. …APPELLANT (BY SRI. B.C. VENKATESH, ADVOCATE) AND: SRI. ANISH KRISHNAN, S/O GOPALAKRISHNAN, AGED ABOUT 43 YEARS. RESIDING AT NO.32, 1ST FLOOR, ‘B’ CROSS, 1ST MAIN ROAD, BYATARAYANAPURA NEW EXTENSION, MYSORE ROAD, BENGALURU-560026. …RESPONDENT (BY SRI. HARSHA D. JOSHI, ADVOCATE) THIS MFA IS FILED U/O. 43 RULE 1(r) OF THE CPC, 1908 AGAINST THE ORDER DATED 28.02.2025 PASSED ON IA NO.2 IN O.S.NO.8744/2024 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH-36), Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 ALLOWING IA NO.2 FILED U/O. 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. IN MFA NO.3664/2025: BETWEEN: SMT. SHAKUNTHALA, W/O RAMACHANDRA, AGED ABOUT 38 YEARS, RESIDING AT NO.1, 1ST MAIN ROAD, 1ST CROSS, BANGARAPPA NAGARA, RAJARAJESHWARINAGAR, BENGALURU–560 026. ...APPELLANT (BY SRI. B C VENKATESH, ADVOCATE) AND: SRI. ANISH KRISHNAN, S/O GOPALAKRISHNAN, AGED ABOUT 43 YEARS, RESIDING AT NO.32, 1ST FLOOR, ‘B’ CROSS, 1ST MAIN ROAD, BYATARAYANAPURA NEW EXTENSION, MYSORE ROAD, BENGALURU-560 026. ...RESPONDENT (BY SRI. HARSHA D. JOSHI, ADVOCATE) THIS MFA IS FILED U/O. 43 RULE 1(r) OF THE CPC, 1908 AGAINST THE ORDER DATED 28.02.2025 PASSED ON IA NO.1 IN O.S.NO.8744/2024 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-36), ALLOWING THE IA.NO.1 FILED U/O. 39 RULE 1 AND 2 R/W SECTION 151 OF CPC, 1908. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR - 3 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 ORAL JUDGMENT The appeals are filed by the defendant questioning the order dated 28.02.2025 passed on I.A.Nos.1 & 2 in OS.No.8744/2024 by the XXXV Addl. City Civil & Sessions Judge, Bengaluru (CCH-36), thereby the applications are allowed. 2. The plaintiff has filed the suit for permanent injunction by claiming that the plaintiff is the owner of the suit schedule property having purchased by the mother of the plaintiff on 11.04.1991. In the sale deed of the mother of the plaintiff, the dimension of the site is shown as 40 x 60 and on the boundaries shown on two sides, there is road. It is the submission of learned counsel for the appellant/defendant that the defendant is the owner of the property, but the plaintiff is wrongly claiming that it is his site and there is no document to show that the plaintiff is in possession over the suit site and also dimensions and boundaries differs from the actual physical site which is - 4 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 shown in the photographs. This photographs produced is not disputed by the respondent/plaintiff. 3. Furthermore, the mother of the plaintiff died on 11.02.2008, but katha in the name of plaintiff’s mother was effected on 04.10.2024 that too in the name of dead person. By this time, the mother of the plaintiff already died on 11.02.2008. Therefore, from the year 11.04.1991 till 04.10.2024 the plaintiff has not produced any document to prima facie to show that the plaintiff is in possession. Therefore, submitted that the trial Court has committed perversity in appreciating the materials placed before the trial Court. 4. Upon considering the rival contentions raised by both the parties, following points would arise for consideration: (i) Whether, under the facts and circumstances of the case, the defendant makes out prima facie case on the basis of the materials produced before the trial court? - 5 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 (ii) Whether, under the facts and circumstances of the case, the defendant makes out case of balance of convenience on the basis of the materials produced before the trial court so as to grant an order of temporary injunction? (iii) Whether, under the facts and circumstances of the case, if an order of temporary injunction is not granted then defendant would suffer any irreparable loss or injury? 5. Upon perusing the prima facie material available at this stage, the plaintiff is claiming ownership mainly based on the sale deed dated 11.04.1991, which is purchased by the mother of the plaintiff. The plaintiff is claiming that the plaintiff’s mother had purchased two site bearing Nos.127 and 128 having the dimensions of 40 ft. x 60 ft.. The boundaries on two sides, in the sale deed produced by the plaintiff, there is road, but the defendant has produced the sale deed of the year 2015 having purchased showing the dimension of 30 ft. x 38 ft. The plaintiff is not disputing the photographs produced in the appeals regarding the actual physical possession as shown - 6 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 in the photographs. As per this, there is road only on one side towards west. Further the defendant has produced the property extract and tax paid receipts for the year 2015-16 to 2025-26 showing the katha that the property is standing in the name of defendant. 6. Further the defendant has produced the copy of the complaint stating that some ten persons had interfered with the construction made by the defendant. Therefore, when this being the fact, it is found that the defendant has more probable in prima facie showing that the defendant is in possession of the property. The trial Court has assigned the reason that there is dispute regarding identity of the property and when these are the documents produced by the defendant showing more probable and showing prima facie case that the defendant is in possession of the property, but whereas on the contrary and on the perversity approach, the trial Court has observed that the documents produced by the plaintiff is more probable than the documents produced by the - 7 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 defendant. This is perverse approach by the trial Court. No doubt, the plaintiff might have purchased the property, but that might be some other site, but not that of the defendant. 7. When this being the serious question regarding identity of the property and the defendant has produced the documents such as property extract, tax paid receipts and E-katha etc., and therefore, the defendant is in possession of the property and has put up construction. Therefore, for the reasons above stated, the approach of the trial Court is perverse as the plaintiff has failed to make out prima facie case and balance of convenience. Therefore, when the defendant is putting up construction on the said site as per the sale deed, katha extract and tax paid receipts and if construction is stopped on the guise of an order of temporary injunction, then it would cause more loss and injury to the defendant than the plaintiff. Therefore, the order of the trial Court is liable to be set aside. Hence, the appeals are liable to be allowed. - 8 - HC-KAR NC: 2025:KHC:35148 MFA No. 3492 of 2025 C/W MFA No. 3664 of 2025 8. Since the question of identity of the property is involved including the title of the parties over the property in the suit, therefore, it is made clear that whatever construction is being putting up by the defendant is subject to result of the suit and the defendant cannot claim equity. 9. Accordingly, I proceed to pass the following: ORDER i. The appeals are allowed. ii. The order dated 28.02.2025 passed on I.A.Nos.1 & 2 in OS.No.8744/2024 by the XXXV Addl. City Civil & Sessions Judge, Bengaluru (CCH-36), is hereby set aside. iii. No order as to costs. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 47