- 1 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.4359 OF 2025 (CPC) BETWEEN: DR. ASHOK ABAUBHAI AMIN S/O BABUBHAI M AMIN, AGED ABOUT 86 YEARS, RESIDING AT NO. 507, 46TH CROSS, JAYANAGAR VTH BLOCK, BANGALORE - 560 041. ALSO RESIDING AT, G113, BRIGADE PETUNIA APARTMENTS, 2ND MAIN, 17TH CROSS, K R ROAD, BSK 2, BANGALORE - 560 070, …APPELLANT (BY SRI. MANJUNATH K.S, ADVOCATE) AND: SRI. SHAILESH MADHUBHAI PATEL, S/O MADHUBHAI AMBALA PATEL AGED ABOUT 72 YEARS, RESIDING AT NO. 321, III MAIN, IV CROSS, J P NAGAR III PHASE, BANGALORE - 560 078. ALSO RESIDING AT, NO. 223 A/B, 4TH MAIN, 7TH CROSS, 1ST PHASE, CLASSIC ORCHARDS, BANGALORE - 76. …RESPONDENT (BY SRI. LOKESH B, ADVOCATE) THIS MFA IS FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DATED 29.10.2024 PASSED ON IA NOS.1 AND 2 IN O.S.NO.43/2024 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC, ANEKAL, REJECTING IA NOS.1 AND 2 FILED U/O.39 RULE 1 AND 2 OF CPC. Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The plaintiff being aggrieved by the dismissal order passed on I.A.Nos.1 and 2 in O.S.No.43/2024 dated 29.10.2024 by the Principal Senior Civil Judge & JMFC., Anekal, filed for grant of temporary injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff with respect to the suit schedule property and restraining the defendant from putting up any kind of construction towards Northern side of the suit schedule property. The plaintiff had filed a suit for declaration to declare that the plaintiff is the absolute owner and in lawful possession of the property and to declare that the Sale Deed dated 28.04.1997 is obtained by fraud and misrepresentation and also for considering the said sale deed dated 28.04.1997. - 3 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 2. In the said suit, the plaintiff has filed applications I.A.Nos.1 and 2 seeking permanent injunction and for the above stated reliefs. The trial Court has dismissed the said applications on the ground that the defendant is the owner and he is in possession of 85 guntas of land as the plaintiff sold 35.52 guntas of land to the defendant and the defendant has purchased 16 guntas of land on 28.04.1997 taking a view that the defendant has more probability on merits of the case rather than the plaintiff and also evidence of the plaintiff i.e., sale deed dated 28.04.1997 but the suit is filed in the year 2024 challenging the same. Further, it is stated that the plaintiff assigned reason that as per description given in the said sale deed and as well as the sketch produced by the plaintiff, prima facie it appears that the said 16 guntas of land is situated towards the Northern edge of Sy.No.23, the property of the plaintiff is situated towards the Southern edge of Sy.No.23. The middle portion of Sy.No.23 was acquired by the plaintiff under the Gift Deed - 4 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 dated 10.05.2017. The plaintiff has alienated a portion of the said property to the extent of 33.79 guntas in favour of the defendant under the registered sale deed dated 29.11.2019 which is situated towards Northern edge of Sy.No.23. Therefore, when this being the case shown by the defendant that the plaintiff has failed to make out prima-facie case and the balance of convenience, the trial Court dismissed the applications. 3. Learned counsel for appellant submitted that the plaintiff and defendant were partners in the Partnership Firm by name M/s. Amex Corporation and this Corporation has purchased 2 acres 16 guntas from one G.Ramaiah. Thereafter, partition took place among the partners and one partner by name Ms. Neelam A Amin, has obtained 1 acre and 06.08 guntas of land i.e., 48% out of 2 acres 16 guntas. The plaintiff has obtained 15% of share in the land which comes to 14.40 guntas of land out of 2 acres 16 guntas. The defendant has obtained share of the land to an extent of 15%, which comes to the - 5 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 extent of 35.52 guntas of land out of 2 acres 16 guntas. It is also stated that the daughter of plaintiff viz., Ms.Neelam Amin, above stated, one of the partner in the firm has gifted her share to the plaintiff. Therefore, it is the case made out by the plaintiff that after selling the land to an extent of 33.79 guntas to the defendant on 29.11.2019 then the plaintiff remained as owner of the land to an extent of 26.69 guntas towards the Southern side. Therefore, when the defendant through a partition has obtained 35.52 guntas of land in the partition and 33.79 guntas of land through sale with the plaintiff and the land retained by the plaintiff to 26.69 guntas and totally it comes to 96 guntas of land. Therefore, there is no land available to the defendant measuring about 16 guntas, but the defendant is falsely claiming the same. The defendant's father had purchased 0.16 guntas of land on 28.04.1997 and therefore, the defendant is putting forth a false claim of 16 guntas of land, which is incorrect. Therefore, the defendant is falsely claiming 16 guntas of - 6 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 land just to engulf the plaintiff's property and started construction on it. Therefore, the plaintiff has filed a suit for declaration for the reasons above stated. But the trial Court without understanding the prima facie case of the plaintiff has dismissed the applications. Hence, the present appeal is filed. 4. Learned counsel for the respondent/defendant submitted that though the partition among partners in the partnership firm viz., M/s. Amex Corporation, the defendant has obtained 15% of the share in the land which comes to 35.52 guntas of land and the defendant has purchased 33.79 guntas of land from the plaintiff. Thereafter, subsequently, through the Sale Deed dated 28.04.1997 has purchased 16 guntas of land from G.Ramaiah who is the original vendor. Therefore, the defendant has become owner of 85 guntas of land. Thus, the defendant has not trespassed 16 guntas of land of the plaintiff but the plaintiff without considering the fact that the defendant has purchased 16 guntas of land from - 7 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 G.Ramaiah is falsely claiming that the defendant's father has encroached 16 guntas of land. Therefore, the defendant prays to dismiss the appeal. 5. Both sides placed reliance on the documents produced before the trial Court and before this Court. 6. Having heard the arguments on both sides and perusal of the records, the following points arise for my consideration:- (i) Whether, under the facts and circumstances of the case, the plaintiff make out prima facie case on the basis of the materials produced before the trial court? (ii) Whether, under the facts and circumstances of the case, the plaintiff make out case of balance of convenience on the basis of the materials produced before the trial court so as to grant an order of temporary injunction? (iii) Whether, under the facts and circumstances of the case, if an order of - 8 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 temporary injunction is not granted then plaintiff would suffer any irreparable loss or injury?" 7. Considering the submissions made by both the side counsels, certain admitted facts have to be discussed. One G.Ramaiah was the owner of the land to the extent of 4 acres 19 guntas. He has sold the land to the extent of 2 acres 16 guntas to one Mumtaz Sharief. The partnership firm namely, Amex Corporation has purchased the said 2 acres 16 guntas of land from Mumtaz Sharief. In the said partnership firm the appellant is the daughter - Neelam Amin and defendant were the partners. Thereafter the said partnership firm was dissolved and accordingly partition among themselves was taken place. As per the partition the plaintiff's daughter has obtained the share of 48% of the land, which comes to 1-06.08 guntas. The plaintiff has obtained 15% of share in the land which comes to the extent of 0-14.40 guntas. The defendant has obtained share of 37% which comes to 35.52 guntas. - 9 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 Therefore, in this regard, the total extent of 2 acres 16 guntas was shared as above stated. 8. Also it is admitted fact that the plaintiff has sold an extent of 33.79 guntas of land to the defendant through registered sale deed. Therefore, the defendant has acquired/obtained the land to the extent of 35.52 guntas under partition and 33.79 guntas through registered sale deed executed by the plaintiff. 9. The plaintiff in the plaint at paragraph 8 has pleaded that the plaintiff is in lawful possession and enjoyment of Sy.No.23 measuring 0-26.69 guntas towards southern side. The defendant/respondent has produced documents. As stated above, G.Ramaiah was the owner of 4.19 guntas of land and RTC extracts were produced. The said G.Ramaiah had executed the registered sale deed selling the land to Mumtaz Sharief on 12.12.1986 to the extent of 2 acres 16 guntas and copy of the registered sale deed is produced. Accordingly, to the extent of 2 acres 16 - 10 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 guntas the name of Mumtaz Sharief is effected in the record of rights. As per this, 1 acre 10 guntas of land was acquired by KIADB from G. Ramaiah's land and therefore after selling the land out of 16 guntas and acquired KIADB to the extent of 1 acre 10 guntas, G.Ramaiah was remained the owner of the land to the extent of 00-33 guntas and this is found in the record of rights and mutation entries so far as acquisition of land by KIADB. Subsequently, the said G. Ramaiah has executed the registered sale deed in favour of father of the defendant on 28.04.1997 to the extent of 0-16 guntas of land. This is mutated and reflected in the record of rights and copy of which is produced. Thereafter the father of defendant has got converted the said land of 00-16 guntas from agricultural to non agricultural land for the purpose of industrial purpose. Thus, the defendant has acquired an additional extent of land of 00-16 guntas through registered sale deed dated 28.04.1997. The plaintiff has challenged this registered sale deed in the suit. This is - 11 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 subject matter before the trial court regarding challenging this sale deed dated 28.04.1997, but at this stage, there is registered sale deed of selling 00-16 guntas of land and it has got presumptive value till the time it is cancelled. Therefore, subject to result in the suit the said registered sale deed has presumptive value, which prima facie shows that the defendant is in possession over the 00-16 guntas of land by virtue of the said registered sale deed. 10. Further defendant produced the documents of sketch showing the placement of the respective lands of plaintiff and defendant. This sketch is not disputed by the plaintiff. 11. The learned counsel for the plaintiff submitted that this sketch is showing only to the extent of 2 acres 16 guntas and the subject matter involved in the suit of 00- 16 guntas is not involved in the sketch. Whatever may be this sketch contains the sketch of 16 guntas or another 00-16 guntas, this is subject matter in the trial. This - 12 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 sketch prima facie shows there are other extent of land also. According to defendant the plaintiff’s land is situated towards southern side. The plaintiff has also pleaded in the plaint at paragraph 18 as above discussed that the plaintiff land is situated towards southern side of the land. The defendant is contending that this 00-16 guntas is situated towards northern side. 12. The identity of the property of 00-16 guntas of land is subject matter in the suit, but considering the boundaries shown in the registered sale deed dated 28.04.1997 by which G. Ramaiah has sold 00-16 guntas of land to father of the defendant, the boundaries are tallied with the boundaries shown in the sketch. Therefore, according to the defendant the land is situated towards northern side and the boundaries in the sketch are tallied with the boundaries shown in the sale deed dated 28.04.1997. Therefore, this prima facie prove the fact that the defendant has acquired 00-16 guntas of land apart from the land to the extent of 35.52 guntas and - 13 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 33.79 guntas not only 85 guntas which means 2 acres 5 guntas. The total comes to 69.47 guntas. Therefore this prima facie proves that the defendant is in possession over 00-16 guntas of land by virtue of registered sale deed as above discussed, but the plaintiff is claiming that this 00- 16 guntas of land is belonging to the plaintiff, but as discussed above when the extent of lands are considered, the acquisition of land by the defendant to the extent of 00-16 guntas of land from G. Ramaiah prima facie favours the defendant. Therefore, in this regard, the defendant is in possession over the said 00-16 guntas of land by virtue of said registered sale deed. 13. Unless said registered sale deeds are cancelled, it has its presumptive value and based on this prima facie the defendant is in possession over the said suit schedule property. Therefore, the plaintiff has failed to make out prima facie case for grant of injunction against the defendant also there is no balance of convenience and if the order of temporary injunction is granted in favour of - 14 - HC-KAR NC: 2025:KHC:34205 MFA No. 4359 of 2025 the plaintiff, then the defendant would be put into more injury or loss than the plaintiff. Therefore, the plaintiff has not shown as to what would be the injury caused to him if an order of temporary injunction is not granted. Therefore, the plaintiff fails to make out prima facie case, balance of convenience and also what would be the loss he is going to suffer if order of temporary injunction is not granted. Accordingly, I answer Point Nos.1 to 3 in the negative. Consequently, the appeal is liable to be dismissed and accordingly it is dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PSJ- Para 1-6 DR- Para 7 onwards List No.: 1 Sl No.: 28 CT: BHK