- 1 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.6366 OF 2024 (CPC) BETWEEN: 1. SMT. RADHAMMA D/O DAYAVAPPA W/O KARIYALLAPPA AGED ABOUT 58 YEARS, R/AT CHIKKACHURAKANAHALLI, HOSUR TALUK, KRISHNAGERI DISTRICT – 635 109. 2. SMT. RAMAKKA D/O DAYAVAPPA W/O GATTAPPA, AGED ABOUT 54 YEARS, R/AT MUTTAALI, HOSUR TALUK, KRISHNAGERI DISTRICT – 635 109. 3. SMT. KRISHNAMMA D/O DAYAVAPPA, W/O KANTHAPPA, AGED ABOUT 45 YEARS, R/AT ARISHNAHATTI, HOSUR TALUK, KRISHNAGERI DISTRICT – 635 109. 4. SMT. SAROJAMMA D/O DAYAVAPPA, W/O RAJAPPA, AGED ABOUT 43 YEARS, R/AT KYALASANAHALLI VILLAGE, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 SARJAPURA HOBLI, ANEKAL TALUK, BENGALURU DISTRICT – 562 106. …APPELLANTS (BY SRI. UMA SHANKAR M.N., ADVOCATE) AND: 1. SRI THOTAPPA S/O JAYAVAPPA AGED ABOUT 63 YEARS 2. SMT. GOWRAMMA W/O LATE VENKATESH, AGED ABOUT 51 YEARS 3. SRI YOGITHA D/O LATE VENKATESH, AGED ABOUT 30 YEARS 4. SRI BINDU D/O LATE VENKATESH, AGED ABOUT 28 YEARS 5. SRI HEMANTH D/O LATE VENKATESH, AGED ABOUT 24 YEARS RESPONDENT NO.3 TO 5 SINCE MINORS REP. BY THEIR MOTHER AND NATURAL GUARDIAN SMT. GOWARAMMA, I.E., RESPONDENT NO.2 6. SRI. MUNIRAJU S/O DAYAVAPPA AGED ABOUT 52 YEARS 7. SRI. RAMACHANDRA S/O DAYAVAPPA - 3 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 AGED ABOUT 48YEARS THE RESPONDENTS NO.1 TO 7 ARE SITUATED AT ITTANGOOR VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BENGALURU – 562 106. 8. CONGLOME TECHNO CONSTRUCTIONS PVT., LIMITED BY ITS DIRECTOR NO.33, 34, 1 AND 2, 8TH MAIN, 4TH CROSS, RMV EXTENSION, SADASHIVANAGAR, BENGALURU-560 080 …RESPONDENTS (BY SRI.AMSHITH HEGDE, ADVOCATE FOR R8 THROUGH V/C; R1, R2, R3, R4, R5, R6, R7 ARE SERVED) THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 03.09.2024 PASSED ON I.A.NO.9 IN OS.NO.829/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ANEKAL, REJECTING THE I.A.NO.IX FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC AS INFRUCTUOUS AND ETC., THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The plaintiffs being aggrieved by the order dated 03.09.2024 dismissing the application i.e., I.A.No.IX filed - 4 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC in O.S.No.829/2011 by II Addl. Senior Civil Judge and JMFC, Anekal, thereby praying to restrain defendant No.8 from altering the nature of schedule property or from construction in the schedule property is dismissed. 2. The plaintiffs are daughters of Dayavappa, defendant Nos.1, 6 and 7 and the husband of defendant No.2 and father of defendant Nos.3 to 5 namely Venkatesh are the sons of Dayavappa. Defendant No.8 is being the holder of agreement of sale dated 26.11.2010. It is stated that the suit schedule properties are joint family and ancestral properties of plaintiff and defendant Nos.1 to 7. The plaintiffs have claimed share in the suit schedule properties, but the same has been refused. Therefore, the plaintiffs are constrained to file the suit for partition and separate possession by metes and bounds by claiming 4/8th share in the suit schedule properties. Defendant Nos.1 to 7 have not filed the written statement. Defendant No.8 being the holder of agreement of sale dated - 5 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 26.11.2010 and holder of registered sale deed dated 02.07.2011 by purchasing the part of suit schedule property has filed the written statement. Defendant No.8 is stranger to the family of plaintiffs and defendant Nos.1 to7. 3. The plaintiffs have filed the application i.e., I.A.No.IV under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC praying to restrain defendant No.8 from altering the nature of schedule property, which is filed on 21.03.2012. This application is not considered by the trial Court and was pending till the order passed on I.A.No.1 on 03.09.2024. 4. I.A.No.VII is filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC praying to restrain defendant No.8 from alienating the schedule properties which is filed on 04.07.2014 and was also pending till the order dated 03.09.2024, on which date, the impugned order is passed. - 6 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 5. I.A.No.IX is filed by the plaintiffs under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC praying to restrain defendant No.8 from altering the nature of schedule property or from construction in the schedule property. 6. The trial Court has passed the common order on all the above said applications on 03.09.2024 dismissing the applications on the reason that defendant No.8 is the purchaser of suit schedule properties and agricultural land was converted and layout was formed and sold all 47 sites to different purchasers. Therefore, defendant No.8 is not in possession and sold all the properties from the said layout. Therefore, the applications have become infructuous. With these reasonings, the trial Court dismissed all the three applications. 7. Heard the argument from the learned counsel appearing for both sides and perused the material available at this stage in the appeal. - 7 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 8. 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? 9. Learned counsel for the appellants/plaintiffs vehemently submitted that the manner in which the trial Court has dealt with the applications when the suit is filed for partition and separate possession claiming share in the schedule properties and if the properties are alienated or - 8 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 altering the nature of the properties, then it could be difficult for the plaintiff to claim their legitimate share. Therefore, I.A.No.4 is filed on 21.03.2012, but the same is not considered and kept pending for more than 12 years. Further submitted that once again the plaintiffs were constrained to file IA.No.VII on 04.07.2014, but the same is also not considered and simply kept pending. During the pendency of the suit and applications, defendant No.8 had purchased the suit schedule properties from defendant Nos.2 to 7 pendente lite of the suit and formed layout and sold out the sites. 10. It is submitted that when the plaintiffs requested the trial Court to consider I.A.Nos.IV & VII and when they have not been considered, therefore, once again the plaintiffs were constrained to file one more application i.e., I.A.No.IX on 23.07.2024. The trial Court has clubbed all the three applications and passed the common order on all I.A.Nos.IV, VII and IX on 03.09.2024. Further submitted that the impugned order is - 9 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 only cryptic in nature without considering prima facie case and balance of convenience and also not considered, if an order of temporary injunction is not granted, then what would be the injury and loss to the plaintiffs. Therefore, the entire approach of the trial Court while dealing with these applications are without application of mind causing grave injustice to the plaintiffs. Therefore, prays to allow the application i.e., I.A.No.IX. 11. On the other hand, learned counsel for respondent No.8/defendant No.8 vehemently submitted that the trial Court is correct in dismissing the applications as having become infructuous, since respondent No.8 /defendant No.8 has sold all the sites in favour of defendant-purchasers. Defendant No.8 is not in possession and this is rightly considered by the trial Court and rightly dismissed the applications. Therefore, prays to dismiss the appeal. - 10 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 12. Upon considering the materials available at this stage and also the impugned order and pleadings made in the plaint and written statement filed by defendant No.8, the entire approach of the trial Court is found to be shocking to the conscious of the Court as the applications filed under Order XXXIX Rules 1 and 2 r/w Section 151 of CPC were simply kept pending for more than 12 years. When the application is filed under Order XXXIX Rules 1 and 2 r/w Section 151 of CPC, as per Order 39 Rule 3(A) of CPC, the application shall be considered and disposed of within a period of 30 days. 13. I.A.No.IV under Order XXXIX Rules 1 and 2 r/w Section 151 of CPC is filed on 21.03.2012 praying to restrain defendant No.8 from altering nature of schedule property. I.A.No.VII is filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC praying to restrain defendant No.8 from alienating the schedule properties. When these applications are pending for 10 to 12 years respectively - 11 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 which is nothing but causing grave injustice to the plaintiff. 14. The trial Court ought to have considered these two applications either in favour of plaintiffs or in favour of defendants, but simply kept pending for long period as above stated. Then once again the plaintiffs were constrained to file application i.e., I.A.No.IX on 23.07.2024 and the trial Court has passed the common order on 03.09.2024 on all the above said three applications. The approach of the trial Court in this regard is completely illegal, without application of mind to the facts and circumstances pleaded in the plaint and written statement. 15. When the plaintiffs have filed the suit for partition and separate possession and filed application for temporary injunction restraining defendant No.8 from alienation, then the said applications ought to have considered within a period prescribed as per Order 39 Rule - 12 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 3(A) of CPC, otherwise, the plaintiffs would be put into irreparable loss and injury. This is lost sight by the trial Court. When the duty is cast on the trial Court to do a particular thing, the same shall be followed in a letter and spirit by the trial Courts. 16. If there are circumstances beyond the reach of the trial Court, then the thing would be different. But when these applications are pending for more than 10 to 12 years respectively, the trial Court did not brother to consider the applications on merits. When the plaintiffs have filed the suit for partition and separate possession and defendant Nos.1 to 7 have not filed the written statement and they have not disputed the nature of properties as they are ancestral and joint family properties and also relationship between the plaintiffs and defendant Nos.1 to 7 is not disputed, then the plaintiffs have made out prima facie case and balance of convenience to claim their share in the suit schedule properties. - 13 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 17. The action of defendant Nos.2 to 7 in selling the land in favour of defendant No.8 during the pendency of the suit is hit by Section 52 to Transfer of Property Act. When this being the fact, the plaintiffs have successfully made out prima facie case and balance of convenience. Therefore, if the suit properties are alienated and altered the nature of land, then it would cause irreparable loss and injury to the plaintiffs. Even if decree is passed, but getting fruit from decree is almost impossible for the plaintiffs and also it would lead to multiplicity of proceedings. All these facts and circumstances have not been considered by the trial Court resulting into causing loss and injury to the plaintiffs. 18. The trial Court has simply assigned the reason that the suit property is agricultural land, which is later converted, and layout is formed and all the sites were sold to different purchasers, hence, defendant No.8 is not in possession, therefore, dismissed the applications. The plaintiffs may not be in physical possession of the - 14 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 property, but they have inherent right to claim share in the suit schedule properties as according to the plaintiffs’ averments in the plaint, the suit properties are ancestral and joint family properties. Therefore, the plaintiffs are deemed to be in constructive possession. 19. When this being so, the rights of the plaintiffs ought to have been protected by the trial Court, but this is not done in this regard. Thus, the entire approach of the trial Court is probably without application of mind amounting to gross injustice to the plaintiffs. Therefore, the plaintiffs are entitled for the relief as claimed in their applications. Therefore, point Nos.i, ii and iii are answered in affirmative. 20. The Principal District Judge, Bengaluru rural District, is requested to conduct enquiry in this regard when application i.e., I.A.No.IV under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC is filed on 21.3.2012 and I.A.No.VII under Order XXXIX Rule 1 and 2 r/w Section - 15 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 151 of CPC is filed on 04.07.2014, but they are made pending for more than 10 and 12 years respectively. Therefore, the Registrar General shall conduct enquiry as to who are responsible in this regard in keeping pending the applications for decades together and submit report to this Court. 21. Hence, I proceed to pass the following ORDER i. The appeal is allowed. ii. The order dated 03.09.2024 dismissing the application i.e., I.A.No.IX filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC in O.S.No.829/2011 by II Addl. Senior Civil Judge and JMFC, Anekal, is hereby set aside. iii. I.A.No.IX is allowed. iv. There shall be an order of temporary injunction restraining defendant No.8/respondent No.8 from altering the nature of suit schedule - 16 - HC-KAR NC: 2025:KHC:34057 MFA No. 6366 of 2024 property and from construction on the suit schedule property till disposal of the suit. v. No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 23