- 1 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 32810 OF 2024 (GM-CPC) BETWEEN: B N VISHAL S/O B K NAGESH, AGED ABOUT 34 YEARS, R/AT NO.83, NEAR ANJENEYA TEMPLE, BYRASANDRA, BENGALURU-560093. …PETITIONER (BY SRI. HALESHA R G.,ADVOCATE) AND: 1. SMT JAYAMMA W/O DODDANARASIMHAIAH, AGED ABOUT 52 YEARS, R/AT CHIKKAJALA VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK. 2. SRI DODDANARASIMHAIAH S/O DODDASOLALLAPPA, AGED ABOUT 84 YEARS, Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 3. SRI GOPALA S/O DODDASOLALLAPPA, AGED ABOUT 53 YEARS, 4. SRI MUNIRAJU S/O DODDASOLALLAPPA, AGED ABOUT 47 YEARS, 5. SRI NARASIMHA MURTHY S/O DODDASOLALLAPPA, AGED ABOUT 42 YEARS, RESPONDENT NO. 2 TO 5 R/AT CHIKKAJALA VILLAGE, JALA HOBLI, BENGALURU NORTH TALUK. 6. SRI K N MANJUNATH S/O A C NANJAPPA, AGED ABOUT 61 YEARS, R/AT NO.630, A BLOCK, SAHAKARANAGAR, BENGALURU-560096. 7. SRI R SRINIVAS RAJU S/O LATE N R RAJU, AGED ABOUT 44 YEARS, R/AT NO.14/529, SHAKTHI SRI 1ST FLOOR, NEW BEL ROAD, RMV II STAGE, BENGALURU-560094. …RESPONDENTS (BY SRI. BALARAJ A C.,ADVOCATE FOR R1; VIDE ORDER DATED 03.11.2025; - 3 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 NOTICE TO R2, R3, R5, R6 IS DISPENSED WITH; R4 & R7 A ARE SERVED AND UNREPRESENTED) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 27-09-2024 ON IA NO. 1 IN MA NO. 15034/2024 ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE BENGALURU RURAL DISTRICT SITTING AT DEVANAHALLI AT ANNEXURE-M. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD ORAL ORDER The question for consideration is whether the petitioner must be permitted to continue with construction in a portion of the property for which a preliminary decree is granted declaring that the first respondent would be entitled for one-fifth share. This question is presented with the petitioner, the purchaser of a portion of the larger property [a site measuring 30feet x 40feet], calling in question the - 4 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 Order dated 27.09.2024 in MA No.15034/2024 on the file of the V Additional District and Sessions Judge, Bengaluru Rural District, sitting at Devanahalli [for short, the First Appellate Court]. 2. This Court on 28.02.2025 has granted stay of the impugned order on terms, and this Court's order reads as under: “Stay of order dated 27.09.2024 passed on I.A.No.1 in M.A.No.15034/2024 pending on the file of V Addl. District and Sessions Judge, Bengaluru Rural, Sitting at Devanahalli, till the next date of hearing, subject to condition that in case the petitioner herein is unsuccessful before the FDP Court, he shall not claim any equity on the construction put up on the land in dispute. He is also restrained from creating any third party interest or rights over the suit schedule property." 3. The appellate Court, by the impugned order, has restrained the petitioner from putting up construction in the subject property, allowing the - 5 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 application filed by the first respondent and the petitioner's grievance with the aforesaid order is examined in the light of these facts and circumstances. [a] The first respondent has succeeded in a suit for partition in OS No. 479 of 2007 on the file of the Senior Civil Judge and JMFC, Devanahalli with the Civil Court decreeing such suit on 31.10.2011 declaring that she is entitled to one-fifth share in the land measuring 1 acre 3 guntas in Survey No. 55 of Chikkajala Village, Bengaluru North Taluk. [b] The civil Court has also held that the sale deeds executed by her family members in favour of respondent nos.6 and 7 would not be binding upon her share while also observing that these sale deeds shall remain in force insofar as the rights of the vendors - 6 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 who have executed these sale deeds [first to fourth defendants in the suit]. The first respondent has filed an application under Order XX CPC for the drawing up of the final decree. [c] The petitioner, who has purchased a portion of this property [measuring 30feet x 40feet] under the sale deed dated 23.10.2020 is impleaded as a respondent in the Final Decree Proceedings. Subsequently, an application is filed under Order XXXIX Rule 1 and 2 of CPC to restrain the petitioner from putting up permanent construction in the portion purchased by him under the sale deed dated 23.10.2020. [d] The Civil Court, by its order dated 20.08.2024, has rejected the application. The Civil Court has referred to the Consent Deed dated 24.09.2009 executed by the first - 7 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 respondent in favour of the seventh respondent [the defendant No.6 in the suit]. The first respondent has executed this deed adverting to the sale deed dated 12.12.2005 executed and acknowledging the receipt of certain consideration. [e] With the first respondent carrying the Civil Court's order in appeal in MA No. 15034 of 2024, the appellate Court has allowed application under Order XXXIX Rule 1 and 2 of CPC restraining the petitioner from putting up further construction while issuing a notice on the appeal to the other respondents in the appeal. The appellate Court has referred to the sale by the second to fifth respondents in favour of the sixth respondent and the sale by this respondent to the seventh respondent who has signed a - 8 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 Joint Development Agreement with a developer to form a layout. [f] During the pendency of the suit, the first respondent has executed the Consent Deed dated 24.09.2009, but suppressing the same has not only prosecuted the suit for a decree in the year 2011 but is also prosecuting the application for final decree. The appellate Court has observed that there is a serious question for trial on whether there must be a final decree in terms of the preliminary decree and therefore the petitioner must be restrained from putting up further constructions. 4. Sri Halesha R.G, the learned counsel for the petitioner, submits that this Court may dispose of the petition, and also the miscellaneous appeal, permitting the petitioner to complete the construction as the petitioner stands by the undertaking that he - 9 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 will not claim any equity in the construction or the land if ultimately the first respondent makes out a case for partition of the larger property including the smaller portion that is purchased by him. Sri Balaraj A.C., the learned counsel for the first respondent, submits that this Court may not permit the petitioner to continue the construction because it cannot be gainsaid that in the final decree proceedings even the portion occupied by the petitioner for construction could be allotted to the first respondent. 5. At the outset, this Court finds that the Appellate Court has erred in exercising its jurisdiction in simultaneously allowing the application and in issuing of notice on the appeal to the other respondents in the appeal. This Court must observe that it was incumbent upon the Appellate Court, even if persuaded, to grant such interim orders as found fit keeping the application pending for due consideration upon service of notice to all the - 10 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 respondents because the petitioner claims title to a portion under them. There is, thus, a reason for interference, and the terms of interference must be examined not only in the light of the facts and circumstances of the case but also that the petitioner is unequivocal in stating that he will not claim equity in the site or the construction if the first respondent makes out a case that this portion must be part of the one-fifth share that should be allotted to her share in terms of the preliminary decree. 6. 6. However, the crucial question whether the first respondent would be entitled for one-fifth share in the larger land in the light of the Consent Deed dated 24.09.2009 must be examined in the Final Decree proceedings, and even if it could be opined that this deed would not be a contra-condition for grant of one-fifth share in the larger land, a host of circumstances peculiar to the case must be examined viz., the nature of development, the terms of sale of - 11 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 not just one portion but of different portions to allot the portion purchased by the petitioner. 7. When these circumstances are thus examined, this Court is of the view that the petitioner must complete construction but not create third- party interest and must be in possession of the property subject to the further orders in the Final Decree Proceedings. Further, it will be needless to observe that the first respondent's claim to partition by metes and bounds of a one-fifth share in the larger property must be examined not just in the light of a single fact but all the circumstances that would be material as afore mentioned. Hence, the following: ORDER [A] The petition stands disposed of accordingly permitting the petitioner to complete the construction subject to the observation as afore stated. - 12 - HC-KAR NC: 2025:KHC:44262 WP No. 32810 of 2024 [B] The petitioner and the first respondent are reserved with liberty to file a certified copy of this order with the Appellate Court for disposal of the appeal in the light of this Court's opinion. Sd/- (B M SHYAM PRASAD) JUDGE NV