- 1 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE WRIT PETITION NO. 103392 OF 2025 (GM-CPC) BETWEEN: 1. 2. 3. 4. 5. RAJENDRA S/O ADAPPA MAGADUM, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. KUMAR S/O ADAPPA MAGADUM, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. MAHAVEER S/O BHUJABALI MAGADUM, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. NEMANNA @ NEMINATH S/O JINNAPPA MAGADUM, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. SHANTINATH S/O JINNAPPA MAGADUM, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. … PETITIONERS (BY SRI. MAHANTESH R. PATIL, ADVOCATE) AND: 1. SHRIMATH S/O PARIS MAGADUM, AGE: 90 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 2. 3. 4. 5. 6. 7. 8. DIST: BAGALKOT-587 315. SUBHAS S/O SHRIMATH MAGADUM, AGE: 62 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. ASHOK S/O SHRIMATH MAGADUM, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. AJIT S/O SHRIMANTH MAGADUM, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. BHUPAL S/O DONDAPPA MAGADUM, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. PRAKASH S/O BHUPAL MAGADUM, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. RAJENDRA S/O BHUPAL MAGADUM, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. AJIT S/O BHUPAL MAGADUM, SINCE DECEASED REP. BY HIS LR’S., ASHWINI W/O AJIT MAGADUM, AGE: 37 YEARS, OCC: HOUSEHOLD WORK, R/O: KILLABHAG-TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. - 3 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 9. 10. 11. 12. 13. SNEHA D/O AJIT MAGADUM, AGE: 14 YEARS, OCC: STUDENT, R/O: KILLABHAG-TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. NEHA D/O AJIT MAGADUM, AGE: 11 YEARS, OCC: STUDENT, R/O: KILLABHAG-TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. BHARAMAPPA S/O DONDAPPA MAGADUM, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. CHANDRAKANT S/O BHARAMAPPA MAGADUM, AGE: 37 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. IRAPPA S/O DONDAPPA MAGADUM, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: TERDAL, TQ: RABAKAVI-BANAHATTI, DIST: BAGALKOT-587 315. … RESPONDENTS (BY SRI. PRASAD PATIL, ADVOCATE FOR R1 TO R13; R9 AND R10 ARE MINORS ARE R/BY R8) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT AND QUASH THE ORDER PASSED ON M.A. NO.5005/2023 DATED 03/04/2025 BY THE I ADDL. DISTRICT AND SESSIONS JUDGE BAGALKOT TO SIT AT JAMKHANDI PRODUCED AT ANNEXURE-P AND ALSO SET ASIDE THE DISMISSAL ORDER PASSED ON I.A. NO.I DATED 15/04/2023 IN O.S. NO.17/2021 PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC AT BANAHATTI PRODUCED AT ANNEXURE-M, IN THE INTEREST OF JUSTICE AND EQUITY. - 4 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 THIS PETITION COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE) This petition is filed assailing the order dated 15.04.2023 passed by the Trial Court on I.A.No.1 in O.S.No.17/2001 rejecting the plaintiffs’ application seeking temporary injunction to restrain the respondents/defendants from alienating the suit schedule properties till the disposal of the suit. 2. The appeal filed by the plaintiffs in M.A.No.5005/2023 is also dismissed on 03.04.2025. Trial Court's order dismissing the application seeking temporary injunction is confirmed. Hence, the present petition. 3. The relationship of the parties is not in dispute. Learned counsel for the petitioners taking through the facts of the case would submit that one Rayappa Magadum was the propositus and he had five sons. On 30.12.1964, suit schedule property is purchased in the name of Parisappa, one of the sons of Rayappa - the propositus. It is urged that property is - 5 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 purchased from the joint family income, as Parisappa did not have any independent income. On this premise, the suit is filed. 4. Learned counsel for the petitioners would also submit that on 10.06.1977, a partnership was created to which the petitioners’ father was also the partner and in the said partnership deed, it is stated that the suit property is the joint property of the partners. It is stated that the father of petitioners No.1 and 2 Adappa, father of petitioner No.3 and father of petitioners No.4 and 5 Jinnappa were also partners in addition to Parisappa. 5. In addition to that, Shrimanth son of Parisappa was also a partner. Another partner is Dondappa, son of Rayappa. Referring to this document, it is urged that the suit properties prima facie is established to be the family property. 6. Learned counsel for the petitioners would also urge that both Courts have committed an error in holding that there was a prior partition in the year 1972 and based on that have wrongly come to the conclusion that the suit property is not the joint family property. - 6 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 7. Learned counsel appearing for the respondents/ defendants would contend that in the year 1983, there was a partition in the family. In the said partition, the suit property is not included because the suit property was understood to be the self-acquired property of Parisappa and the registered sale deed is also in the name of Parisappa. Prima facie no document is produced by the plaintiffs/petitioners to establish that the suit property is the joint family property. 8. Referring to these aspects, both the Courts have concurrently held that no prima facie case is made out to grant interim injunction and would urge that this Court would not grant injunction by substituting the view taken by the Trial Court and the First Appellate Court merely because one more view is plausible. 9. The learned counsel appearing for the petitioners by way of reply would contend that in case, the injunction is not granted and the property is alienated, third party right will be created and the plaintiffs will be put to substantial loss as the defendants are likely to alienate the property adjacent to the road which will fetch more value. - 7 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 10. It is also his further submission that the cinema theatre in the suit property is demolished without the consent of the children of the partners and said act is also illegal. 11. This Court has considered the contentions raised at the Bar and perused the records. 12. Admittedly, two Courts have concurrently held that the plaintiffs are not entitled to the interim relief claimed. It is to be noticed that the view expressed by the Trial Court and the First Appellate Court is only a tentative view. Howsoever strong may be the observation in the order passed on the Interlocutor Application or in the Miscellaneous Appeal, the same should not influence the mind of the Court while disposing of the suit on merits. 13. It is noticed that there is a registered sale deed in the name of Parisappa. Though learned counsel for the petitioners would urge that no document is produced to show that Parisappa was possessing the income when he purchased the property in the year 1964, it is also required to be noticed that the property stood in the name of Parisappa for a - 8 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 considerably long time. And in addition to that in the partition deed of 1983 which is not in dispute, there is no reference to the suit property as the joint family property which is kept undivided. 14. However, it is also required to be noticed that in the partnership deed reference is made to the effect that the suit property belongs to the partners. 15. In that view of the matter, it is true that two views are plausible in this case. If the Court is to accept the registered sale deed and the partition deed of 1983, this Court has to take a tentative view that the property is the self-acquired property of Parisappa. 16. If the Court is to accept the partnership deed of 1972, the Court may take a view that the property is the joint property of the partners’ named therein. 17. Whether it is the self-acquired property or the joint property is a question required to be decided after recording the evidence. The view taken by the Trial Court and the First Appellate Court cannot be said to be a view which is impermissible based on the materials on record. - 9 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 18. However at this juncture, again this Court has to express a tentative view that the finding of the Trial Court and the Appellate Court that there was a partition in the year 1972 appears to be without any basis as no document is produced to show that there was a partition in the year 1972. Hence, the finding of the Trial Court and the First Appellate Court, if any that the partition has taken place in the family in the year 1972 is expunged for the purpose of orders on interlocutory application. If the defendants are able to establish the alleged partition of 1972, it is for the Court to decide on the said question if at all any evidence is placed to that effect. 19. Learned counsel for the petitioners has also urged that in case injunction is not granted, the properties will be alienated and even if the plaintiffs/petitioners succeed, they may have to fight further litigation against the purchasers. 20. It is to be noticed that the law relating to lis pendens will come to the aid of the petitioners. The persons who purchased the property during the pendency of the suit, cannot claim equity against the petitioners. - 10 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 21. If it is found that the petitioners are also having a share in the property, even if the property is sold, while allotting the property to the plaintiffs, in case if they succeed, preference should be given to the plaintiffs over the purchasers and there has to be an equitable partition where the plaintiffs will also get their legitimate share in the suit properties. 22. The Trial Court shall consider the case on merits keeping in mind the observations made above. 23. The purchasers of the suit property, if any during the pendency of the suit will not have any special equity over the petitioners/plaintiffs and even if they put up any structure in the suit properties, they cannot claim any special equity based on the construction. 24. Even the defendants cannot raise any claim relating to special equity based on any developments in the suit property during pendency of the suit. 25. There is no order restraining the defendants from alienating the property. In case, defendants sell the suit property, there shall be a recital in the sale deed about the suit. - 11 - HC-KAR NC: 2025:KHC-D:14728 WP No. 103392 of 2025 26. With these observations, the writ petition is disposed of. Sd/- (ANANT RAMANATH HEGDE) JUDGE CLK CT:BCK LIST NO.: 1 SL NO.: 36