- 1 - HC-KAR NC: 2025:KHC:30286 MFA No. 3039 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. 3039 OF 2025 (CPC) BETWEEN: M R SHANKARANARAYANA S/O LATE M RAMANNA, AGED ABOUT 71 YEARS, R/O H NIO. 452B, 1ST STAGE, 1ST CROSS, RAJESHWARINAGAR, REAL TOWNSHIP, BANGALORE - 560 098 …APPELLANT (BY SRI. SRINIVASA.M.KULKARNI, ADVOCATE FOR SRI. C S PRAKASH, ADVOCATE) AND: M.V. SURYANARAYANA RAO S/O LATE M VEERANNAIAH, AGED ABOUT 80 YEARS, R/O NO. 24, VASISTA, SAPTHAGIRI EXTENSION, SREENIDHI LAYOUT, TUMKUR TOWN, TUMKUR DIST – 572 101. …RESPONDENT (BY SMT. SMITHA PRASKAH, ADVOCATE FOR C/R) THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC AGAINST THE ORDER DT. 25.01.2025 PASSED ON IA.NO.1 IN OC.NO. 490/2023 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING THE IA. FILED Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30286 MFA No. 3039 of 2025 UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.IN TIME. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the plaintiff questioning the order dated 25.01.2025 passed on I.A.No.3 filed under Order XXXIX Rules 1 & 2 of CPC in OS.No.490/2023 by II Addl. Senior Civil Judge and JMFC., Tumakuru, thereby, the application filed for temporary injunction is dismissed. 2. The plaintiff has filed the suit for partition and separate possession by metes and bounds by pleading that all 50 schedule properties are ancestral properties. Defendant Nos.1 to 11 are stated to be the co-parceners and defendant Nos.12 to 82 are purchasers. Defendant No.8 was making attempt to alienate the property. Therefore, by virtue of the exparte order being granted, defendant No.8 had not sold item No.49. But, thereafter vacating the exparte order of status quo in the - 3 - HC-KAR NC: 2025:KHC:30286 MFA No. 3039 of 2025 month of January, 2025 and subsequently, in the month of March, 2025, defendant No.8 had sold the property. Therefore, the plaintiff has filed the application for seeking the relief of temporary injunction. 3. Learned counsel for the appellant/plaintiff submitted that the trial Court has recorded the finding on point Nos.1 and 2 regarding making out prima facie case and balance of convenience lies in favour of the appellant/plaintiff, but only on the reason that, since some of the properties were sold out to others and therefore, purchasers will be put into irreparable loss. Ultimately, application was dismissed. 4. On the other hand, learned counsel for the respondents/defendants submitted that the relief of temporary injunction was sought only against defendant No.8 and only in respect of item No.49 of the suit schedule property. He has suppressed some of the facts, therefore, led to dismissal of the application. Further the plaintiff has - 4 - HC-KAR NC: 2025:KHC:30286 MFA No. 3039 of 2025 not shown any prima facie case that the suit schedule properties are ancestral property, but the properties are self acquired property of defendant No.8. Therefore, justified the order passed by the trial Court. 5. The trial Court while answering point Nos.1 and 2 as to whether the plaintiff has made out a prima facie case and balance of convenience, the trial Court has answered that the plaintiff has made out a prima facie case and balance of convenience, but the reason assigned on point No.3 that some of the suit properties were sold out long ago by the family members of the plaintiff and defendant Nos.1 to 11 and purchasers have got mutated khatha into their names in respect of their respective properties long ago and are in possession of their respective properties since long time. 6. When the plaintiff has filed the suit for partition by claiming that the schedule properties are ancestral properties, then he has to produce some materials to prove that these properties are ancestral and jointly family - 5 - HC-KAR NC: 2025:KHC:30286 MFA No. 3039 of 2025 properties. But the same have not been produced. Defendant No.8 has taken the specific contention that most of the properties are not belonging to the family of the plaintiff and defendant Nos.1 to 11. Further the purchasers of the property purchased the same long ago and are in possession. 7. When this being the fact, when the plaintiff has filed the suit for partition and if some of the properties were sold out prior to filing of the suit, then the plaintiff ought to have prayed for the relief of cancellation of such sale deeds. Even after filing of the suit, if defendant No.8 has sold out the property that would hit by Section 52 of the Transfer of Property Act. 8. Therefore, the trial Court is correct in making observation that though the plaintiff has prima facie case and balance of convenience, but looking into the fact that the properties are sold out and purchasers are in possession of the property and at this stage, if relief of - 6 - HC-KAR NC: 2025:KHC:30286 MFA No. 3039 of 2025 temporary injunction is granted, then that would cause irreparable injury and loss to the purchasers of the properties. Therefore, there is no need to interfere with the order passed by the trial Court. Hence, the observation made by the trial Court is found to be correct on I.A. Therefore, the appeal is liable to be dismissed. 9. Accordingly, appeal is dismissed. 10. However, whatever the transaction of sale of schedule properties after institution of suit, are hit by Section 52 of Transfer Property Act. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 49