- 1 - HC-KAR NC: 2025:KHC:31560 MFA No. 886 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO. 886 OF 2025 (CPC) BETWEEN: 1. SMT. USHA P R W/O MANU, AGED ABOUT 42 YEARS, RESIDING AT MANAH, NO.2-34/10, BLUE BERRY HILLS ROAD, NEAR ABHIMAN HEIGHTS APARTMENTS, KONCHADY, MANGALORE, DAKSHINA KANNADA-575008 2. SMT. ASHA KIRAN AITHAL W/O KIRAN KUMAR ALTHAL, AGED ABOUT 38 YEARS, RESIDING AT NO 401, AASHRAYA SERENITY, 4TH FLOOR, BHAGYA LAKSHMI AVENUE, NYANAPANAHALLI ROAD, HULIMAVU, BENGALURU - 560068. …APPELLANTS (BY SRI. HEMANTH KUMAR K.,ADVOCATE) AND: 1. SRI. RAMESH RAO S/O LATE SUBBA RAO, AGED ABOUT 75 YEARS, PAIKAMANE, KODMAN VILLAGE, KODMAN POST, BANTWAL TALUK, DAKSHINA KANNADA-574211. Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31560 MFA No. 886 of 2025 2. SRI. RADHAKRISHNA RAO S/O LATE SUBBA RAO, AGED ABOUT 73 YEARS, YASHAS, OPP MAHA GANAPATHI TEMPLE MADHUMAN COMPOUND AND POST, NARIKOMBU, MOGARNADU, PANEMANGALORE, BANTWAL TALUK DAKSHINA KANNADA-574211. 3. SMT. SULOCHANA VAIDYA, W/O MANJUNATHA VAIDYA AGED ABOUT 80 YEARS, UPPUNDA MANE AND POST, KUNDAPURA TALUK, UDUPI DISTRICT-576201 4. SMT. N. PADMINI W/O N. ANANTHA, AGED ABOUT 78 YEARS, R/AT 252/1, NADUMANE, KUDUPU KATTE, KUDUPU POST, THIRUVAIL VILLAGE, VAMANJUR, MANGALORE, DAKSHINA KANNADA-575028. …RESPONDENTS (R1 TO R4 ARE SERVED) MFA FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 22.01.2025 PASSED ON I.A. NO.1 IN O.S.NO. 27/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, BANTWAL, DAKSHINA KANNADA, DISMISSING THE I.A. NO.1 FILED UNDER ORDER XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR - 3 - HC-KAR NC: 2025:KHC:31560 MFA No. 886 of 2025 ORAL JUDGMENT The present appeal is filed by the appellants/plaintiffs challenging the order dated 22.01.2025 passed on I.A.No.I in O.S.No.27/2024 by the Court of Senior Civil Judge and J.M.F.C., Bantwal, D.K. 2. The plaintiffs have filed suit for partition by metes and bounds. The application-I.A.No.1 under Order XXXIX Rule 1 and 2 read with Section 151 of CPC is filed seeking order of temporary injunction directing defendant No.1 or his agents not to alienate the suit item No.4 property. But, the trial Court has dismissed the application on the reason that the daughter was running a shop in KSRTC bus stand and made financial arrangements to defendant No.1 to purchase the suit item No.4 property. Therefore, the trial Court is of the opinion that there is no prima facie case to prove that the suit item No.4 property is joint family property. Thus, dismissed the application. 3. Though the respondents were served with notice, they remained absent. 4. It is the case of the plaintiffs that the suit item No.4 property is also a joint family property. Defendant No.1 in the - 4 - HC-KAR NC: 2025:KHC:31560 MFA No. 886 of 2025 Written Statement, has stated that the suit item No.4 property was under the threat of alienation by the Bank. Therefore, the daughter of defendant No.1 in order to avoid the said threat of alienation of the property to other parties and to retain within family, has purchased the said property in the name of defendant No.1. The reasons given by the trial Court for rejection of application is that the daughter of defendant No.1 has made financial assistance to defendant No.1 to purchase suit item No.4 property. Thus, it amounts to self acquired property of defendant No.1. But this averment as a pleading is found in the written statement filed by defendant No.1. The suit item No.4 property is standing in the name of defendant No.1. When the plaintiffs have pleaded that this suit item No.4 property is standing in the name of defendant No.1, whether that alone constitutes that it is a self acquired property of defendant No.1 is a question to be tried in the suit. When the trial Court has given a reasoning that the daughter of defendant No.1 has assisted financially in purchasing property by defendant No.1 and the said pleading is present in the written statement, therefore, presumably it could be considered that, item No.4 property is also a joint family property. - 5 - HC-KAR NC: 2025:KHC:31560 MFA No. 886 of 2025 Therefore, if suit item No.4 property is alienated, that would also prejudice the right of the plaintiff to claim the said property. Therefore, the plaintiffs have made out a prima facie case for granting temporary injunction so far as item No.4 property is concerned. Therefore, the relief sought for permanent injunction is not to alienate the suit item No.4 property is to be granted. Therefore, if the item No.4 suit property is not alienated, that would not cause any prejudice/injury to defendant No.1. Whereas, if suit item No.4 property is alienated, then that would lead to multiplicity of proceedings. Therefore, this court is inclined to grant temporary injunction so far as item No.4 property is concerned. Therefore, the appeal is liable to be allowed. Hence, the following: ORDER i) The Miscellaneous Second Appeal is allowed. The order dated 22.01.2025 passed on I.A.No.I in O.S.No.27/2024 by the Court of Senior Civil Judge and J.M.F.C., Bantwal, D.K. is hereby set aside, by granting an order of temporary injunction restraining defendant No.1 from alienating the suit item No.4 property, pending disposal of the suit. - 6 - HC-KAR NC: 2025:KHC:31560 MFA No. 886 of 2025 ii) What are the observations made above shall not be construed as merits, as the same are only on the basis of submissions made by the learned counsel for the appellants and the observations made by the trial Court. Therefore, the trial Court shall decide the suit independently on merits of the suit based on the evidence to be adduced. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE KA List No.: 1 Sl No.: 44