- 1 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.5056 OF 2025 (CPC) C/W MISCELLANEOUS FIRST APPEAL NO.4675 OF 2025(CPC) IN MFA No.5056/2025: BETWEEN: S.G. RAMAPPA, S/O LATE GANGANNA, AGED ABOUT 82 YEARS, AGRICULTURIST R/O SHETTIHALLI VILLAGE, K BIDRE POST, SINGATAGERE HOBLI, KADUR TALUK, CHIKKAMAGALURU DIST. …APPELLANT (BY SRI. JAYAKUMAR.S.PATIL, SR. COUNSEL FOR SRI. VARUN JAYKUMAR PATIL, ADVOCATE) AND: 1. S C CHANDRASHEKHARAPPA S/O. CHANNABASAPPA, AGED ABOUT 69 YEARS, AGRICULTURIST. 2. S.C. BASAVARAJA, S/O S.C. CHANDRASHEKHARAPPA, AGED ABOUT 41 YEARS, AGRICULTURIST. BOTH ARE R/O.SHETTIHALLI VILLAGE, Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 K. BIDRE POST, SINGATAGERE HOBLI, KADUR TALUK, 3. SMT. SOUBHAGYA W/O BASAVARAJ, D/O CHANDRASHEKHARAPPA, AGED ABOUT 47 YEARS, HOUSE KEEPER, R/O NAGASAMUDRA. ARSIKERE TALUK, 4. SMT. SUKANYA W/O RUDRESH, AGED ABOUT 57 YEARS, HOUSE WIFE, R/O NAGASAMUDRA, ARSIKERE TALUK, 5. SMT. KASHAMMA W/O VIRUPAKSHAPPA, AGED ABOUT 75 YEARS, HOUSE WIFE, R/O MARUTHI NAGARA, SHAKTHI MARGA, NISARGA NILAYA, ARSIKERE TOWN, HASSAN DIST. 6. SMT. JAYAMMA W/O K. RUDRAPPA , AGED ABOUT 72 YEARS HOUSEWIFE, R/O KALLESHWARA NILAYA K.P.S LAYOUT, B.R.ROAD, ARASIKERE TOWN, HASSAN DIST. …RESPONDENTS (BY SRI.K.S.GANESHA, ADVOCATE FOR R1 TO R6) THIS MFA FILED U/O.43 RULE 1(r) OF CPC, AGAINST THE ORDER DT.09.04.2025 ON IA NO.1 IN R.A.NO.28/2025 ON THE - 3 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KADUR, CHIKKAMAGALURU DISTRICT, DISMISSING IA NO.1 FILED U/O.53-A OF TRANSFER OF PROPERTY ACT, R/W SEC.151 OF CPC. IN MFA NO.4675/2025: BETWEEN: S.G. RAMAPPA, S/O LATE GANGANNA, AGED ABOUT 82 YEARS, AGRICULTURIST, R/O SHETTIHALLI VILLAGE, K BIDRE POST, SINGATAGERE HOBLI, KADUR TALUK, CHIKKAMAGALURU DIST. …APPELLANT (BY SRI. JAYAKUMAR.S.PATIL, SR. COUNSEL FOR SRI. VARUN JAYKUMAR PATIL, ADVOCATE) AND: 1. S C CHANDRASHEKHARAPPA S/O. CHANNABASAPPA, AGED ABOUT 69 YEARS, AGRICULTURIST. 2. S.C. BASAVARAJA, S/O S.C. CHANDRASHEKNARAPPA, AGED ABOUT 41 YEARS, AGRICULTURIST. BOTH ARE R/O.SHETTIHALLI VILLAGE, K. BIDRE POST, SINGATAGERE HOBLI, KADUR TALUK, 3. SMT. SOUBHAGYA W/O BASAVARAJ, D/O CHANDRASHEKHARAPPA, AGED ABOUT 47 YEARS, HOUSE KEEPER, - 4 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 R/O NAGASAMUDRA, ARSIKERE TALUK, 4. SMT. SUKANYA W/O RUDRESH, AGED ABOUT 47 YEARS, HOUSE WIFE, R/O NAGASAMUDRA, ARSIKERE TALUK, 5. SMT. KASHAMMA W/O VIRUPAKSHAPPA, AGED ABOUT 65 YEARS, HOUSE WIFE, R/O MARUTHI NAGARA, SHAKTHI MARGA, NISARGA NILAYA, ARSIKERE TOWN, HASSAN DIST. 6. SMT. JAYAMMA W/O K. RUDRAPPA , AGED ABOUT 63 YEARS HOUSEWIFE, R/O KALLESHWARA NILAYA K.P.S LAYOUT, B.R ROAD, ARASIKERE TOWN, HASSAN DIST. …RESPONDENTS (BY SRI. K S GANESHA, ADVOCATE FOR R1 TO R6) THIS MFA FILED U/O 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 09.04.2025 PASSED ON I.A.NO.III IN R.A.NO.28/2025 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KADUR, CHIKKAMGALURU DISTRICT, DISMISSING THE I.A.NO.III FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC. THESE APPEALS, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The appellant in these two appeals is the plaintiff in O.S.No.439/2015 has filed the suit for a specific performance of contract and the said suit was dismissed. Being aggrieved by it the plaintiff has preferred an appeal in R.A.No.28/2025 and in the said regular appeal the plaintiff/appellant has filed I.A.No.I under Section 53A of the Transfer of Property Act, 1882 (for short ‘TP Act’) r/w Section 5 of CPC and I.A.No.III filed under Order 39 Rules 1 and 2 of CPC seeking protection of his possession over the suit schedule property based on the agreement of sale dated 16.04.2008 and I.A.No.II is filed under Order 39 Rule 1 and 2 r/w Section 151 of CPC seeking to restrain the defendant from alienating or creating any third party interest or encumbering of any sort over the suit schedule property. - 6 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 2. The appellate court has dismissed the I.A.Nos.I and III and allowed I.A.No.II. By virtue of order passed on I.A.No.II the defendant is restrained from alienating or creating any third party interest over the suit schedule property. 3. Being aggrieved by the order passed on I.A.Nos.I and III the present appeal is filed. 4. The learned Senior Counsel appearing for the appellant/plaintiff submitted that by virtue of agreement of sale the defendant has put the plaintiff in possession of the suit schedule property and till today he is in possession and during the pendency of the suit the plaintiff has been enjoying the order of injunction. Thus, the plaintiff has protected his possession over the suit schedule property. 5. By placing reliance on Ex.P-1 - agreement of sale he submitted that there was an oral agreement on 10.02.1994 and from that date onwards, the plaintiff is in - 7 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 possession over the property and it is unequivocally stipulated in the said agreement of sale, but the first appellate court has not considered this and rejected the applications. Further submitted that the trial court has observed in the judgment and gave findings that the plaintiff is in possession over the suit schedule property. Also PW4 and PW5 have deposed that the plaintiff is in possession over the suit schedule property. Though the suit is dismissed on other reasons, but there is categorical finding by the trial court that the plaintiff is in possession over the suit schedule property and that ought to have been protected, but the first appellate court has not considered this aspect, which has resulted in passing erroneous order rejecting I.A.Nos.I and III. Therefore, prays to allow the appeals and requested to grant an order of injunction protecting the possession of the plaintiff. 6. On the other hand, learned counsel for the respondents/defendants submitted that the alleged agreement of sale is unregistered agreement and - 8 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 possession was not conveyed to the plaintiff and also submitted that Section 53A of the TP Act is applicable only when the document is registered one. Since the agreement of sale is dated 16.04.2008, therefore to protect the possession over the property but the agreement of sale as per Section 53A of the TP Act the document must be registered as per Section 17 of the Registration Act, 1908, but in the present case the agreement of sale is not registered one. Therefore, the plaintiff is disentitled to base his claim on Section 53A of the TP Act. 7. Further submitted that PW1 in the cross examination admitted that as on today the defendants are in possession of the property. Therefore submitted that the defendants are in possession over the suit schedule property. 8. Further submitted that by virtue of agreement of sale, if handing over possession of the property is to be - 9 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 considered that must be only through registered agreement of sale, otherwise there is no handing over of the possession to the plaintiff. Further submitted that whatever claim is based on the agreement of sale and that is unregistered one. Hence, possession was not conveyed and still the possession is remained with the defendants. Hence, prays to dismiss the appeal. 9. Upon considering the rival submissions and the materials placed before this Court at this stage, the points that arise for consideration are: (i) Whether, under the facts and circumstances of the case, the plaintiff/appellant makes 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/appellant 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 temporary injunction is - 10 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 not granted then plaintiff/appellant would suffer any irreparable loss or injury? 10. The appellant/plaintiff has filed the suit for a specific performance of contract. The said suit is dismissed. It is submitted that the plaintiff was enjoying the order of temporary injunction and thus, it is his submission that the plaintiff was in possession till the date of judgment in the suit. The plaintiff is mainly relying on the recitals of Ex.P-1 (agreement of sale) by stating that there was earlier oral agreement of sale dated 10.02.1994 and later on it was reduced into writing on 16.04.2008 and in the said Ex.P-1 dated 16.04.2008 it is recited that the defendant has handed over possession to the plaintiff from the date 10.02.1994. 11. The entire submission of learned counsel for the appellant/plaintiff is based on this Ex.P-1 agreement of sale. Admittedly, the agreement of sale dated 16.04.2008 is unregistered document. Though in the said agreement it is stated that there was oral agreement on 10.02.1994 - 11 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 and recited in the agreement that possession was handed over to the plaintiff, but it is only appeared as oral agreement. Though it was reduced into writing on 16.04.2008, but by virtue of the fact that the agreement of sale is unregistered one it cannot be said that the possession was validly and legally handed over to the plaintiff. 12. Therefore, based on the oral and unregistered agreement of sale the claim of the plaintiff is that the defendants have handed over possession of the plaintiff, is not found to be having any merit so far as possession is concerned. By virtue of agreement of sale if plaintiff is protecting his possession, then the document must be registered one then such possession could be recognized as per law. 13. Further to take the benefit of Section 53A of TP Act, upon principle of “part performance of contract” the possession is to be protected only when the instrument is - 12 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 registered one. There is an amendment to the Section 53A of the TP Act with effect from 24.09.2001 that the benefit of Section 53A of the TP Act is applicable where the instrument is registered one otherwise not. Then in the present case there might be contention of the plaintiff that there was oral agreement on 10.02.1994, but Section 53A of the TP Act is applicable only when there is written instrument. The written instrument in the present case is dated 16.04.2008. Therefore, considering this factual matrix the plaintiff is not entitled for protection under Section 53A of the TP Act. 14. Further considering the admission of the plaintiff during the cross examination he has admitted that the defendants are in possession over the suit schedule property. The learned Senior Counsel for the appellant/plaintiff submitted with respect to this submission that this admission arose in the context of the suit filed for partition between the family members of the defendants. Therefore, in the context of the suit for - 13 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 partition between the family members of the defendants such admission was made, therefore that admission cannot be applied to the present suit, which is filed for specific performance of contract. Whatever may be the nature of suit whether it is suit for specific performance of contract or for partition, but the fact of possession is always the same. Though that admission arose in the context of the suit filed for partition, but the plaintiff is contending to be a holder of agreement of sale he knew the fact who is in possession. This being the fact of possession is not supposed to be altered by nature of property. Therefore, this admission of PW1 in cross examination goes to show that the plaintiff is not in possession but defendant is in possession of the suit schedule property. 15. Therefore, considering all these materials available at this stage while considering this appeal the trial court is correct in dismissing the applications filed for temporary injunction by the first appellate court. - 14 - HC-KAR NC: 2025:KHC:34552 MFA No. 5056 of 2025 C/W MFA No. 4675 of 2025 Therefore, the first appellate court has correctly considered the applications which are not found with any perversity. Hence, the appeals deserve to be dismissed. Accordingly, I answer Point Nos.(i) to (iii) in the negative. Accordingly, the appeals are dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE DR List No.: 1 Sl No.: 45