- 1 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 463 OF 2025 (CPC) C/W MFA CROSS OBJECTION NO. 65 OF 2025 MISCELLANEOUS FIRST APPEAL NO. 4120 OF 2025 IN MFA No. 463/2025 BETWEEN: 1. SRI. VARUN SAI SRIDHAR S/O LATE SRIDHAR RAMASWAMY AGED ABOUT 42 YEARS 2. SMT. JAYANTHI C W/O LATE SRIDHAR RAMASWAMY AGED ABOUT 65 YEARS 3. SMT. ASHWINI B W/O VARUN SAI SRIDHAR AGED ABOUT 38 YEARS ALL ARE R/AT NO.3314 GROUND FLOOR, 7TH CROSS HAL 2ND STAGE, INDIRANAGAR BENGALURU-560 008 …APPELLANTS (BY SRI. S. RAJASHEKAR, ADVOCATE) Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 AND: 1. SMT. NALINI MUNIRAJ W/O R. MUNIRAJ AGED ABOUT 51 YEARS 2. SRI. R. MUNIRAJ S/O B.M. RAMAIAH AGED ABOUT 53 YEARS BOTH ARE R/AT #10/3, 13TH MAIN 1ST CROSS, HAL 2ND STAGE INDIRANAGAR BENGALURU-560 008 …RESPONDENTS (BY SRI. H. MANJUNATH, ADVOCATE) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 20.12.2024 PASSED ON I.A.NO.1 IN OS.NO.5151/2024 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL SESSIONS JUDGE, BENGALURU CCH-40, PARTLY ALLOWING THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. IN MFA.CROB NO. 65/2025 BETWEEN: 1. SMT. NALINI MUNIRAJ W/O SRI. R. MUNIRAJ AGED ABOUT 50 YEARS 2. SRI. R. MUNIRAJ S/O SRI. B.M. RAMAIAH AGED ABOUT 52 YEARS BOTH RESIDING AT NO.10/3 BYRAVESHWARA NILAYA 13TH MAIN, 1ST CROSS - 3 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 HAL 2ND STAGE, INDIRANAGAR BENGALURU-560 008 ...CROSS OBJECTORS (BY SRI. H. MANJUNATH, ADVOCATE) AND: 1. SRI. VARUN SAI SRIDHAR S/O LATE SRI. SRIDHAR RAMASWAMI AGED ABOUT 40 YEARS 2. SMT. C. JAYANTHI W/O LATE SRI. SRIDHAR RAMASWAMI AGED ABOUT 64 YEARS 3. SMT. ASHWINI B W/O SRI. VARUN SAI SRIDHAR AGED ABOUT 37 YEARS ALL ARE RESIDING AT NO.3314 GROUND FLOOR 13TH MAIN, 7TH CROSS HAL 2ND STAGE INDIRANAGAR BENGALURU-560 008 ...RESPONDENTS THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 20.12.2024 PASSED ON I.A.NO 1/2024 IN OS.NO. 5151/2024 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-40), PARTLY ALLOWING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC. - 4 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 IN MFA NO. 4120/2025 BETWEEN: 1. JAYANTHI C W/O LATE SRIDHAR RAMASWAMY AGED ABOUT 64 YEARS 2. VARUN SAI SRIDHAR S/O LATE SRIDHAR RAMASWAMY AGED ABOUT 64 YEARS BOTH ARE R/AT NO.3314 GROUND FLOOR, 13TH MAIN 7TH CROSS, HAL 2ND STAGE INDIRANAGAR BENGALURU-560 008 ...APPELLANTS (BY SRI. S. RAJASHEKAR, ADVOCATE) AND: 1. NALINI MUNIRAJ W/O R. MUNIRAJU AGED ABOUT 50 YEARS 2. MUNIRAJ R S/O B.M. RAMAIAH AGED ABOUT 52 YEARS 3. YAMINI MUNIRAJ D/O R. MUNIRAJ AGED ABOUT 25 YEARS ALL ARE R/AT NO. 10/3, 13TH MAIN 1ST CROSS, HAL 2ND STAGE - 5 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 INDIRANAGAR BENGALURU-560 008 ...RESPONDENTS (BY SRI. H. MANJUNATH, ADVOCATE FOR R1-R3) THIS MFA IS FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 28.04.2025 PASSED ON I.A.NO.1 IN OS.NO.2705/2025 ON THE FILE OF THE C/c XXXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH 38), REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC. THESE APPEALS AND MFA CROB, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT The MFA.No.463/2025 is defendants appeal and MFA.Crob.No.65/2025 is plaintiffs appeal, are arising out of a single orders on IA no.1 dated 20.12.2024 passed in O.S.No.5151/2024 by the XXXIX Additional City Civil and Sessions Judge, (CCH-40), Bengaluru which was allowed in part by the trial Court and MFA.No.4120/2025 is plaintiffs appeal filed against the orders on IA no.1/2025 dated 28.04.2025 in O.S. No. 2705/2025 on the file XXXVII Additional City civil and Sessions Judge (CCH-38), - 6 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 Bengaluru, which was rejected by the trial Court. Both the counsels are fair enough to submit that, the properties involved in O.S.No.5151/2024 and O.S.No.2705/2025 are almost similar and plaintiffs and defendants claiming rights in the said property based upon the Gift and Will so pleaded in their respective pleadings. They submit that, in both these appeals, as common question of facts are involved, they be heard together and common order may be passed. In view of this fair submission by both the side, common argument is heard and hence common judgment is passed. 2. Both the counsels are fair enough to submit that, at present both O.S.No.5151/2024 is pending on the file of XXXIX Additional City Civil and Sessions Judge, (CCH-40), Bengaluru City and O.S.No.2705/2025 is pending on the file of XXXVII Additional City Civil and Sessions Judge (CCH-38), Bangalore City. - 7 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 3. The appellants herein, who are the plaintiffs in O.S.No.2705/2025 before the trial Court, filed suit seeking a order of temporary injunction against the respondents/defendants from interfering with their alleged lawful possession and enjoyment of the portion of the property described as 'C' schedule property, namely, the 2nd floor consisting of a room measuring approximately 27.87 sq. ft. located at No.3314, 7th cross, 13th Main, HAL 2nd stage, Indira Nagar, Bengaluru - 08. 4. Simultaneously, the appellants also filed an interlocutory application under Order XXXIX Rule 1 and 2 read with Section 151 of CPC seeking temporary injunction to restrain the respondents from interfering with their peaceful possession pending disposal of the suit. The appellants assert that, the Schedule C properties lawfully inherited from their predecessors, late Sridhar Ramaswamy, under valid Gift Deed and a Will. They claim to be in settled possession of the said portion, namely the second floor, and support their assertions with BBMP, tax - 8 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 paid receipts, photographs, police complaints and FIRs which they contend that, they are the corroboratory facts of possession and interference. 5. They argue that the respondents, without any semblance of right or title or interest, attempted to unlawfully dispossess them from the schedule 'C' property and that such actions necessitated the filing of the instant suit and the interlocutory application. 6. The respondents strongly opposed the application and contended that, the appellants have no lawful right title or right over the Schedule 'C' property. They asserted that the original documents, including the Will and Gift Deeds relied upon by the appellants, pertain only to the ground and first floors of the said property and do not make any reference to the existence or transfer of the second floor or the terrace portion. They further claim ownership under Sale Deed dated 22.01.2010 executed by - 9 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 Srikant Ramaswamy, brother of the appellants, in their favour in respect of the first floor of the building. 7. Additionally, they brought to the notice of this Court about the pendency and outcome of earlier litigations, including O.S.No.1390/2010, and O.S.No.3013/2019, which were either dismissed or pending without any interim relief granted to the appellants. 8. The learned trial Court, upon consideration of the pleadings and material placed on record, declined to grant the temporary injunction. The Court held that the appellants failed to establish a prima facie case in their favour. The Court emphasized that the Schedule 'C' property - the alleged second floor - did not mention in the documents such as the Will or Gift Deeds produced by the appellants. It also observed that no independent municipal or regular records were published to conclusively prove the existence of a constructed second - 10 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 floor or that the same was exclusively possessed by the appellants. The trial Court concluded that, the portion claimed by the appellants appeared to be a terrace, which in the absence of a clear demarcation and ownership, would be presumed to be a common area, and hence, exclusive possession could not be presumed in favour of either party at that stage. 9. This Court, being the first Appellate Court under Order XLIII of CPC, is duty bound to examine whether the learned trial Court exercised its discretion judiciously, in consonance with the established legal principles, and whether any material evidence has been ignored or misappreciated, warranting appellate interference. 10. Upon detailed examination of the impugned orders, passed in O.S.No.5151/2024 and O.S.2705/2025, the pleadings, the documents on record, and the observations so made during the course of the order especially in the order dated 20.12.2024 passed in - 11 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 O.S.No.5151/2024, the following significant aspects emerge: 1. Non consideration of crucial documents: The BBMP tax pay receipts, which form the cornerstone of the appellant's claim to possession, have not been adequately discussed or weighed by the trial Court. While the Court cursorily referred to a lack of revenue documents, it failed to analyze whether the tax receipts correlated with the second floor or the existence of any built-up portion of the terrace. 2. Photographic and police evidence ignored: Photographs of the alleged room on the terrace and copies of the FIRs and police complaints indicating forcible interference by the respondents were produced by the appellants. These, at the very least, established that possession - even if not exclusive, is being seriously asserted and executed, and thus warranted closure scrutiny by the trial Court. - 12 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 3. In conclusive determination of possession: Possession of property, even without absolute title, can be a protectable interest. This means that a person in possession of property, even if they don't have full ownership rights, can still be protected by the law against certain actions by others, including the true owner. This protection is often referred to as "possessory title" or "possessory right". The trial Court's conclusion that the appellants failed to prove possession is not based on a detailed analysis of the photographic and circumstantial evidence. As held by the Hon'ble Apex Court in Krishna Ram Mahale v. Shobha Venkat Rao reported in (1989) 4 SCC 131, even an unauthorised occupant in settled possession of property is entitled to be protected from forcible disposition. 4. Misapplication of common area principle: The trial Court's assumption that the terrace is a common area is not supported by any specific municipal - 13 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 plan or structural drawing. This conclusion is fully based upon presumption than legal or factual substantiation. 5. Failure to consider earlier proceedings in proper light: The prior suits were referred to, but their relevance to the present dispute - particularly is the nature of the claim, relief sought, and reasoning for denial of interim relief has not been explained by the trial Court. The dismissal of a prior suit or lack of interim relief therein cannot by itself be determinative in the subsequent proceedings involving potentially new facts and evidence. 11. When a trial Court fails to consider relevant evidence and findings without proper appreciation of the material facts, the appropriate course would be to remand this matter for fresh adjudication rather than to decide it at the appellate stage. "Possession is a facet of ownership", and Courts are bound to protect even possessed rights where they are threatened illegally. - 14 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 12. In view of the above discussion, this Court is of the concerned opinion that the trial Court's order dated 28.04.2025 suffers from material irregularity and non application of mind to the vital pieces of evidence placed on record stated supra. The exercise of discretion under Order XXXIX Rule 1 and 2 of CPC appears to have been done in a mechanical fashion without due consideration of relevant legal principles and the appellants' evidence. A fair adjudication can demands by both the parties and should be afforded an opportunity to produce further documents if any and clarify all the ambiguities in the existing record. 13. Resultantly, I pass the following: ORDER (i) The impugned order dated 20.12.2024 passed in O.S.No.5151/2024 by the XXXIX Additional City Civil and Sessions Judge (CCH-40), Bengaluru City and order dated 28.04.2025 in O.S.No. 2705/2025 passed by the XXXVII Additional City Civil and - 15 - HC-KAR NC: 2025:KHC:25774 MFA No. 463 of 2025 C/W MFA.CROB No. 65 of 2025 MFA No. 4120 of 2025 Sessions Judge(CCH-38), Bengaluru City, are set aside. (ii) The matters are remanded to the trial Court for fresh consideration of I.A.No.1 in O.S.No.5151/2024 and I.A.No.1/2025 in O.S.No.2705/2025. (iii) The learned trial Court is directed to consider afresh all materials on record, including the BBMP records, photographs, complaints and FIRs and if necessary permit both the parties to produce additional materials on record. (iv) The trial Court shall pass a reasoned and speaking order in accordance with law expeditiously with all its promptitude. (v) The status quo, if any, presently in existence shall be maintained till such time the order is passed. (vi) Costs made easy. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE AM/List No.: 1 Sl No.: 28