- 1 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.8021 OF 2024 (CPC) BETWEEN: 1. SMT. HANUMAKKA W/O. LATE P.KRISHNAPPA AGED ABOUT 71 YEARS, 2. K.PUTTASWAMY S/O. LATE P.KRISHNAPPA AGED ABOUT 50 YEARS, 3. SMT. K.UMADEVI D/O LATE P.KRISHNAPPA, AGED ABOUT 47 YEARS, 4. SMT. MANJULA D/O LATE P.KRISHNAPPA, AGED ABOUT 45 YEARS, 5. KESHVAMURTHY LATE P KRISHNAPPA APPELLANTS ARE RESIDING AT NO.94 OLD NAGNWARA VILLAGE, NEAR ARABIC COLLEGE, BANGALORE NORTH TALUK, BANGALORE – 560 045. …APPELLANTS (BY SRI. PUSHPAHASA R, ADVOCATE A/W SRI. SRIDHARA.P, ADVOCATE) Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 AND: 1. SMT. GOWRAMMA D/O LATE MUNISHAMAPPA AGED ABOUT 65 YEARS, CHADALAPURA VILLAGE, NANDI HOBALI, CHIKKABALLAPURA TALUK AND DISTRICT 2. SMT. CHANNAMMA D/O LATE MUNISHAMPPA AGED ABOUT 62 YEARS, NO.41 JALAHALLI VILLAGE, BANGALORE. 3. SRI. NARAYANASWAMY S/O. LATE MUNISHAMAPPA, AGED ABOUT 60 YEARS 4. SRI. SRINIVAS S/O. LATE MUNISHAMAPPA AGED ABOUT 59 YEARS, RESPONDENT 2 TO 4 ARE RESIDING AT NAGAMANGALA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. 5. SMT. PUTTAMMA D/O LATE MUNISHAMAPPA, AGED ABOUT 57 YEARS, RESIDING AT CHODAPPANAHALLI VILAGE, CHANNARAYAPATTANA HOBALI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. 6. SMT. SUBBAMMA @ SUNANDAMMA, D/O LATE MUNISHAMAPPA, AGED ABOUT 55 YEARS, RESIDING AT - 3 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 NO.981, MARAPPA LAYOUT, THANISANDRA MAIN ROAD, THANISANDRA, BANGALORE. 7. KESHVAMURTHY.K S/O LATE KEMPANNA, AGED ABOUT 38 YEARS, NAGAMANGALA VILLAGE, KUNDANA HOBALI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. 8. SMT. SHOWBHAGYAMMA, W/O M.PUTTASWAMY, AGED ABOUT 46 YEARS, RESIDING AT NAGAMANGALA VILLAGE, KUNDANA HOBALI, DEVANAHALLI TALUK, BANGALORE RURAL DISTRICT. 9. V.R. SINGNACHRI S/O LATE RAMASWAMY IYENGAR, AGED ABOUT 60 YEARS, RESIDINDG AT NO.104, P&T COLONY, R.T.NAGAR, BANGALORE – 560 032. 10. C. MUNDARAJAN S/O LATE DURISWAMY IYENGAR, AGED ABOUT 83 YEARS, USHA NILAYAM, NEAR OLD VIJAYA TENT, R.T. NAGAR, BANGALORE – 560 032. 11. SMT. SHANTHAMMA W/O. SRI. CHIKKAPUTTAPPA, MAJOR, R/AT MEENUKUNTE HOSUR, - 4 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 JALA HOBLI, BANGALORE NORTH TALUK, BANGALORE DISTRICT. …RESPONDENTS (BY SRI.AMAMRNATH D., ADVOCATE FOR R3 AND R4; SRI. MANJUNATH G.KANDEKAL, ADVOCATE FOR R8; R-6 SERVED AND UNREPRESENTED V/O DATED:07/04/2025, APPEAL IS DISMISSED AGAINST R1, R2, R5 TO R7 AND R10; V/O DATED 29.07.2025, APPEAL IS DISMISSED AGAINST R9 AND R11) THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.31.07.2024 PASSED ON IA NO.1 IN O.S.NO.418/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI, REJECTING IA.NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC, 1908 WITH COSTS. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appeal is filed by the appellants/plaintiffs challenging the order dated 31.07.2024 passed on I.A.No.1 in O.S.No.418/2016 by the Senior Civil Judge and JMFC, Devanahalli, thereby, the application is dismissed. 2. The rank of the parties is referred to as per their rankings before the trial Court. - 5 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 3. The appellants/plaintiffs have filed the suit for partition and separate possession by metes and bounds of claiming 1/3rd share in the suit schedule properties and for consequential relief of permanent injunction by claiming that the plaintiff and defendant Nos.1 to 7 are the members of Hindu Undivided Joint Family and the suit schedule properties are ancestral properties. 4. It is the case of the plaintiff that one Narayanappa is the original propositor who had three children namely Munishamappa, Venkatappa and Puttappa. The plaintiff is the son of Puttappa. Defendant Nos.1 to 6 are the children of Munishamappa and defendant No.7 is the son of Venkatappa. It is stated that Munishamappa has sold 3 acres of suit schedule land to Barmoji Rao on 10.09.1942 depriving the legitimate share of Puttappa without bringing it knowledge to the said Puttappa. Venkatappa sold 8 acres 21 guntas to one Hanumanthappa in the year 1947. Therefore, the plaintiff has also filed an application under Order XXXIX Rules 1 - 6 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 and 2 of CPC praying for an order of temporary injunction restraining defendant Nos.3, 4, 8, 9 and 11 from alienating the suit schedule lands. The total extent of suit schedule land is 17 acres 33 guntas. 5. Though, the said Munishamappa and Venkatappa have sold 11 acres 21 guntas of land as above stated, still there is remaining 6 acres 12 guntas of land. Therefore, the suit is filed for partition and separate possession by claiming 1/3rd share and also prayed for temporary injunction by filing an application not to alienate the remaining 6 acres 12 guntas of land. The said application is dismissed by the trial Court on the reason that there are various sale transactions way back before 69 to 72 years and the land is not available for grant of any temporary injunction and also for the reason that the sale deeds have not been challenged. Therefore, on all these reasons dismissed the application. - 7 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 6. Heard the arguments from both sides and perused the materials produced at this stage in the appeal. 7. Upon considering the rival submissions and material produced at this stage, the points that arise for consideration are as under: (i) Whether, under the facts and circumstances of the case, the plaintiff makes out prima facie case on the basis of the materials produced before the trial Court so as to grant order of temporary injunction? (ii) Whether, under the facts and circumstances of the case, the plaintiff makes 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 temporary injunction is not granted, then the plaintiff would suffer any irreparable loss or injury? - 8 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 8. Learned counsel for the appellants/plaintiffs submitted that the total extent of land is 17 acres 33 guntas and the sale made by Munishamappa and Venkatappa is to the extent of 11 acres 21 guntas and still there is remaining 6 acres 12 guntas available. Therefore, submitted that if further alienation is made, then that deprives the legitimate share of the plaintiff. Therefore, prays for an order of temporary injunction. Further submitted that the trial Court has committed error in observing that the entire extent of land is not available for grant of temporary injunction, but the trial Court has not considered the fact that Munishamappa and Venkatappa have re-purchased the property and that is effected in the revenue records and encumbrance certificate. Therefore, the land is still with the possession of joint family consisting of plaintiff and defendant Nos.1 to 7. Therefore, it is submitted that when the plaintiff had made out a prima facie case, then the plaintiff is entitled for 1/3rd share. It is proved that the plaintiff has made out a prima - 9 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 facie case and balance of convenience and if an order of temporary injunction is not granted, then that would cause loss and injury to the plaintiff. Therefore, prays to allow the appeal and grant an order of temporary injunction. 9. On the other hand, learned counsel for the respondents/defendants submitted that in the year 1942 and 1947, Munishamappa and Venkatapa have sold out the lands and after 69 to 72 years, the instant suit is filed that too without seeking declaration challenging the registered sale deed and for over 69 to 72 years several sale transactions have taken place and those sale deeds are not challenged and also those sale deeds are prior to institution of the suit. Therefore, the prayer made in the plaint is defective one. Hence, the plaintiff has not made out prima facie case. Therefore, prays to dismiss the appeal. 10. Upon considering the plaint averments and written statement averments along with the materials produced, the plaintiff has filed the suit for partition as the - 10 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 plaintiff himself made pleadings in the plaint that prior to institution of the suit, Munishamappa and Venkatapppa have sold out the lands. If that being so, the plaintiff ought to have challenged those registered sale deeds with the prayer of declaration, but this is not made by the plaintiff. 11. Further upon considering the entire plaint averments, the sale deeds are created and concocted one, besides fake and bogus, but no detailed pleadings are made in this regard in the plaint. Though, the plaintiff has made averments that sale deeds were transacted, but at what point of time and in which year, there is no pleadings in the plaint. If before institution of suit, there are sale transactions regarding selling the suit schedule lands, the said sale deeds ought to have been challenged in the suit as per the principle of law laid by the Hon’ble Supreme Court. - 11 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 12. During the pendency of the suit, if the suit schedule lands are alienated, then there need not be challenge to the said sale deed, but the plaint averments is silent regarding at what point of time the suit schedule lands is alienated. Even according to the pleadings, it could be inferred that the said sale transactions were prior to 69 to 72 years that is what observed by the trial Court in its order, then those sale deeds ought to have challenged with the relief of seeking declaration, but that is not done by the plaintiff. The trial Court has observed that the registered sale transactions dated 07.04.1947 and 25.06.1952 are not averred in the plaint. 13. The trial Court observed on the basis of oral argument addressed by the counsel for the plaintiff. When this being the fact, the lands are sold out much prior to institution of the suit, therefore, the plaintiff has not made out prima facie case and balance of convenience. If an order of temporary injunction is not granted, then what would be the injury or loss to the plaintiff is not convinced - 12 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 by the plaintiff, but on the contrary, if the order of temporary injunction is granted, then it would cause injury to the purchasers who have purchased the suit schedule land even much prior to institution of the suit. Therefore, the trial Court is correct in dismissing the application, which needs no interference. 14. Though, the learned counsel for the appellants/plaintiffs submitted that still there is remaining 6 acres 21 guntas of land, but that alone is not a criteria so as to grant an order of temporary injunction for the reasons above discussed. The suit is filed for partition and separate possession, therefore still there is right to the plaintiff to establish his claim for seeking decree of 1/3rd share in the suit schedule land, but the plaintiff has failed to make out prima facie case and balance of convenience and if an order of temporary injunction is not granted, then what would be the injury to the plaintiff loss to the plaintiff is not convinced. Accordingly, point Nos.i, ii and iii - 13 - HC-KAR NC: 2025:KHC:33719 MFA No. 8021 of 2024 are answered in negative. Therefore, appeal is liable to be dismissed. Accordingly, appeal is dismissed. The suit is of the year 2016, therefore, the trial Court shall expedite the trial and dispose of the suit as early as possible. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 68