- 1 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.4172 OF 2025 (CPC) BETWEEN: 1. ZARA AMEENA KHANUM W/O MUYEEZ AHMED, D/O LATE MAHBOOB KHAN, AGED ABOUT 26 YEARS, 2. MUYEEZ AHMED, S/O MAQBOOL KHAN AGED ABOUT 42 YEARS, BOTH R/A NO.2, 2ND CROSS, H SIDDAIAH ROAD, RUDRAPPA COMPOUND, BEHIND MTR HOTEL, BANGALORE - 560002 …APPELLANTS (BY SRI. SURESH S. LOKRE, ADV. FOR SRI. SHRAVAN S LOKRE., ADV.) AND: 1. SAMEENA KHANUM W/O LATE MAHABOOB KHAN, AGED ABOUT 48 YEARS 2. SUMRAN KHANUM, D/O LATE MAHABOOB KHAN, AGED ABOUT 22 YEARS, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 3. ZAID KHAN, S/O LATE MAHABOOB KHAN, AGED ABOUT 20 YEARS ALL ARE R/A NO.2, 2ND CROSS, H SIDDAIAH ROAD, RUDRAPPA COMPOUND, BEHIND MTR HOTEL, BANGALORE 560 002. (ADDRESS AS PER THE CAUSE TITLE AS PER THE IMPUGNED ORDER) ACTUALLY, ALL R/AT NO.22, MARATA RANOJI RAO ROAD, 2ND CROSS, FORT, SHAMBUPALYA, KALASIPALYA, BENGALURU 560002 …RESPONDENTS (BY SRI. D.L. JAGADEESH, SR. COUNSEL A/W SRI. SYED NASEERUDDIN, ADV.) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.20.11.2024 PASSED ON IA NO.1/2024 AND 2/2024 IN O.S.NO.25937/2024 ON THE FILE OF THE C/C IV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-22, ALLOWING THE IA.NO. 1 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC AND DISMISSING THE IA.NO. 2 FILED UNDER ORDER 39 RULE 4 OF CPC. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR - 3 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 ORAL JUDGMENT This appeal is filed by the defendants questioning the order dated 20.11.2024 passed on I.A.Nos.1 & 2 filed under Order 39 Rules 1 and 2 of CPC by the XIII Addl. City Civil and Sessions Judge, Mayohall Unit, Bengaluru, in O.S.No.25937/2024, thereby the application filed for temporary injunction is allowed. 2. The plaintiffs have filed the suit for permanent injunction against the defendants contending that the plaintiffs are in possession of the suit schedule property and therefore, sought for injunction restraining the defendants to disconnect the electricity and water supply to the suit schedule property. It is alleged that the defendants started interfering with the peaceful possession of the plaintiffs. 3. The defendants appeared, filed objections and written statement to I.A.Nos.1 and 2 contending that plaintiffs have suppressed the fact that One Mubarak, s/o - 4 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 Rasool Khan and Achubi have already instituted a suit for partition in O.S.No.5387/2023, which is pending before Addl. City Civil and Sessions Judge, Bangalore City. In the said suit, the plaintiffs are defendant Nos.1, 3 and 5. Further the plaintiffs have suppressed the fact that the husband of plaintiff No.1 namely, Mahaboob Khan died on 01.08.2014 and she has remarried one Naseer Ahamed, S/o. Basheer Ahamed on 25.10.2014 and has been living along with her second husband at Kalasipalya, Bangalore, but not in the suit schedule property. This fact is suppressed by the plaintiffs. Though this was brought to the knowledge of the trial court by placing materials before the trial court, without any reasons the trial court has granted the order of injunction. Therefore, prays to interfere with the order passed by the trial court. 4. Learned Senior Counsel for the defendant Nos.1 and 2 has submitted that the plaintiffs have suppressed that the suit instituted by Mubarak, S/o.Rasool Khan/plaintiff herein, for partition and the said suit for - 5 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 partition and separate possession are under consideration. When this being the fact, the plaintiff No.1 has solemnized the second marriage with one Naseer Ahamed after death of her husband and started residing separately along with her second husband but not in the said property. In this regard the materials are produced before the trial court to show that the plaintiffs are not in possession of the suit schedule property, but the trial court has wrongly granted the order of temporary injunction. 5. On the other hand, learned Senior Counsel for the respondents/plaintiffs submitted that since there was continuous interruption by the defendants, the plaintiffs have preferred a writ petition before this Court in W.P.No.8112/2024 and this Court has ordered for spot inspection and it is the inspection report that plaintiffs are residing in the suit property. Therefore, to protect the rights of plaintiffs over the suit schedule property, the order of temporary injunction is passed which needs no - 6 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 interference by this Court. Hence, prays for dismissal of the appeal. 6. Having heard the learned counsels for both the parties and perused the materials on record, the following points are framed for consideration: (i) Whether, under the facts and circumstances of the case, the plaintiffs make out prima facie case on the basis of the materials produced before the trial court? (ii) Whether, under the facts and circumstances of the case, the plaintiffs make 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 plaintiffs would suffer any irreparable loss or injury? 7. The plaintiffs while filing the instant suit for the permanent injunction has not disclosed the suit in O.S.No.5387/2023 filed for partition and separate - 7 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 possession, also the plaintiff No.1 has not disclosed the death of her husband Mahboob Khan, who died on 01.08.2014. It is vehement assertion by the learned Senior Counsel for the defendant Nos.1 and 2 that the plaintiffs were never in possession of the suit schedule property and placed the material to show that plaintiff No.1 has solemnized the second marriage with one Naseer Ahamed and started residing separately at Kalasipalya, Bangalore, but not in the suit schedule property, which is vehemently opposed by the learned counsel for the respondents/plaintiffs. 8. The plaintiffs have filed W.P.No.8112/2024. Later on, the plaintiffs have withdrawn the said writ petition. During the course of this petition, by virtue of order of this Court though the BESCOM officials have submitted a report, but this is not a prima facie material to show that the plaintiffs are in possession of the suit schedule property. Just because a person standing in front of the door of the house and just appearing in the - 8 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 CCTV Camera, that does not prima facie prove that the plaintiffs are in possession of the suit schedule property. 9. The learned counsel for the defendant Nos.1 and 2/appellants have produced a gift deed dated 20.04.2022 executed by Naseer Ahamed in favour of the plaintiff No.1 showing the place of the residence as House No.22, 2nd Cross, Marata Ranoji Rao Raod, Kalasipalya, Bangalore. These documents prima facie show that plaintiff No.1 after death of her husband had solemnized second marriage with one Naseer Ahamed and Naseer Ahamed being husband, had gifted the properties in favour of his second wife i.e., plaintiff No.1. This document is registered document, which prevails over the report submitted by the BESCOM Officials. Therefore, in this document of registered gift dated 20.04.2022 Naseer Ahamed had gifted one property in favour of his wife the plaintiff No.1, which prima facie shows the plaintiffs are residing at Kalasipalya, Bangalore, but not in the suit schedule property. - 9 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 10. The learned counsel for the respondents/plaintiffs submitted that the Gas bill and receipt are showing the name of plaintiff No.1, but those are of the year 2024, whereas the gift deed dated 20.04.2022 itself prima facie shows that the plaintiff No.1 being wife of Naseer Ahamed is residing at Kalasipalya, Bangalore. Therefore, all these materials produced shows that plaintiffs are not in possession of the suit schedule property and as such grant of temporary injunction is not correct. Hence, Point No.1 to 3 are answered in the negative. 11. There is an ordeal in suit O.S.No.5387/2023, which is filed for partition and separate possession. In the said suit the issues involved are for partition and the gift deed and also the registered gift deed executed by the Achubi, who is the wife of original propositus. When this being the finding, plaintiffs being defendant Nos.1 to 3 in the said suit have instituted separate suit for partition and - 10 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 injunction. Therefore, as discussed above, prima facie the plaintiffs have failed to prove that they are in possession over the suit schedule property. In this regard, the trial court has assigned reasons that the plaintiffs are entitled to share in the suit schedule property and thus grant of temporary injunction is not correct. Though the plaintiffs may have right of say in the suit schedule property, but when the suit is filed for permanent injunction prima facie possession ought to be showed to the Court for exercising the discretionary relief of injunction, but the plaintiffs have failed to prove their possession of suit schedule property. Therefore, order of temporary injunction is not correct. 12. Hence, I proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The order dated 20.11.2024 passed on I.A.Nos.1 & 2 filed under Order 39 Rules 1 and 2 of CPC by the XIII Addl. City Civil and - 11 - HC-KAR NC: 2025:KHC:30084 MFA No. 4172 of 2025 Sessions Judge, Mayohall Unit, Bengaluru, in O.S.No.25937/2024, is hereby set aside. (iii) No costs. SD/- (HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 37