- 1 - HC-KAR NC: 2025:KHC:39159 MFA No. 8025 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.8025 OF 2024 (CPC) BETWEEN: SRI B.S.BASAVAKUMAR S/O LATE B SHIVALINGEGOWDA AGED ABOUT 63 YEARS R/O H BASAVANAPURA HALAGURU HOBLI, MALVAALLI TALUK MANDYA DISTRICT – 571 401 …APPELLANT (BY SRI. RAJA L.,ADVOCATE) AND: 1. SRI. B.S.VENKATESH S/O LATE B SHIVALINGEGWODA AGED ABOUT 57 YEARS 2. SMT. ASHA Y.P, W/O B.S. VENKATESH AGED ABOUT 43 YEARS BOTH ARE RESIDING AT NO. KT380, 1ST CROSS, MARIGOWDA LAYOUT, MANDYA CITY, MANDYA DISTRICT – 571 401. …RESPONDENTS (BY SMT.SRUTI CHAGANTI, ADVOCATE FOR C/R1 AND R2) Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39159 MFA No. 8025 of 2024 THIS MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 05.04.2024 PASSED ON I.A. NO.6 IN O.S.NO. 219/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANDYA, PARTLY ALLOWING THE I.A. NO.6 FILED UNDER ORDER XXXIX RULE 4 OF CPC. BARRED BY TIME. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT Though, this appeal is listed for admission, with the consent of learned counsel appearing for both the parties, the matter is taken up for final disposal. 2. This appeal is filed by the plaintiff in O.S.No.219/2022 passed on I.A.No.6 filed under Order XXXIX Rule 4 read with Section 151 of CPC on the file of Principal Senior Civil Judge and CJM, Mandya1, thereby the application filed for temporary injunction in respect of item No.16, 20 to 24 of the suit schedule properties is dismissed. 1 hereinafter referred to as ‘the Trial Court’ for short - 3 - HC-KAR NC: 2025:KHC:39159 MFA No. 8025 of 2024 3. The plaintiff has filed the suit for partition and separate possession by claiming that all the suit schedule properties are ancestral and joint family properties. Upon the application filed for temporary injunction, the Trial Court has granted an order of temporary injunction restraining defendant Nos.6, 11 and 12 from alienating and encumbering item Nos.1 to 15, 17 to 19 and 25 of the suit schedule properties, but rejected the application insofar as item No.16 and 20 to 24 of the suit schedule properties. Being aggrieved by the dismissal of the application in respect of item Nos.16, 20 to 24 of the suit schedule properties, the present appeal is filed. 4. Learned counsel for the appellant/plaintiff submitted that when the plaintiff is said to have pleaded that item Nos.16, 20 to 24 of suit schedule properties are ancestral and joint family properties and evidence is to be laid and the plaintiff will be able to establish that these suit schedule properties are the ancestral and joint family - 4 - HC-KAR NC: 2025:KHC:39159 MFA No. 8025 of 2024 properties. But, the trial Court had come to the conclusion that these are the self acquired properties of defendant Nos.6, 11 and 12, which is not correct. Therefore, prays to grant an order of temporary injunction restraining from alienating and encumbering item Nos.16, 20 to 24 of suit schedule properties are concerned. 5. On the other hand, learned counsel for the respondents/defendant Nos.11 and 12 submitted that in the written statement, they have taken the specific contention that defendant Nos.11 was working as a skill labourer in the Sericulture Department and had worked for 35 years in the said Department and at the age of 52 years he has taken voluntary retirement and out of self earning, he had purchased item Nos.16, 20 to 24 of suit schedule properties and this is rightly appreciated by the trial Court in its order. Hence, the order of the trial Court is well reasoned in dismissing the application insofar as item Nos.16, 20 to 24 of suit schedule properties is concerned. Therefore, prays to dismiss the appeal. - 5 - HC-KAR NC: 2025:KHC:39159 MFA No. 8025 of 2024 6. It is not disputed that defendant No.11 was working in Sericulture Department and he had put services of nearly 35 years in the Sericulture Department and took voluntary retirement at the age of 52 years. Hence, when this considerable length of service is taken into consideration, then defendant No.11 quietly has income to purchase the property. It is the case of defendant No.11 that item No.20 of suit schedule property with prior intimation to the Office, he has availed loan of Rs.3,40,000/- from the Bank on 30.04.2009 and constructed ground floor and late constructed first floor in the year 2018 by utilizing his retirement benefits, home loan etc. When this being the prima facie materials produced, defendant No.11 has prima facie shown that this property is acquired not from the joint nucleus fund. 7. Further insofar as item No.12 of suit schedule property is concerned, it is purchased through registered sale deed dated 13.06.2016 and later converted the same - 6 - HC-KAR NC: 2025:KHC:39159 MFA No. 8025 of 2024 into non-agricultural land and item No.22 of suit schedule property was purchased by him on 05.09.1994 and item No.23 of suit schedule property was purchased on 07.02.1994 through different sale deeds by utilizing the salary, income from non-agricultural land converted on 25.09.2006. Hence, defendant No.11 has prima facie case as to how these items No.16, 20 to 24 of suit schedule properties are not the ancestral and joint family properties. Therefore, the trial Court has correctly observed that there is no prima facie case on the part of plaintiff insofar as item Nos.16, 20 to 24 of suit schedule properties are concerned showing that these are the ancestral and joint family properties. 8. When the plaintiff is claiming that these items No.16, 20 to 24 of suit schedule properties were purchased out of joint nucleus fund, the same ought to have been stated not only by pleading, but also by producing some prima facie materials and the same is not - 7 - HC-KAR NC: 2025:KHC:39159 MFA No. 8025 of 2024 produced by the plaintiff. Hence, the trial Court is correct in dismissing the application insofar as item Nos.16, 20 to 24 of suit schedule properties concerned and hence, there is no perversity found in the order. Accordingly, there is no need to make interference in the impugned order. Thus, the appeal is liable to be dismissed. 9. Accordingly, the appeal is dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 42