- 1 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.8513 OF 2024 (CPC) BETWEEN: SRI. SANTHOSH K.S. S/O K.V. SATYANARAYANA SHETTY, AGED ABOUT 47 YEARS, RESIDING AT NO. 152, 3RD CROSS, MANASARA ROAD, INDHIRANAGARA, MYSORE – 570 010 …APPELLANT (BY SRI. RAJESH A.,ADVOCATE) AND: 1. SMT.J. MEENA KUMARI D/O LATE J.R. PRASAD, AGED ABOUT 61 YEARS, RESIDING AT NO. 10/1, LANCER ROAD, RT NAGAR, BANGALORE 560 032. 2. SRI. RAJESH TIWARI, FATHER NAME NOT KNOWN AGED ABOUT 52 YEARS, NO. 113, GROUND FLOOR, 15TH CROSS, VYALIKAVAL, BANGALORE - 560 003. 3. SMT. ANITHA TIWARI W/O NOT KNOWN TO THE PLAINTIFF, AGED ABOUT 46 YEARS, RESIDING AT NO. 358/A, 15TH MAIN ROAD, MC LAYOUT, VIJAYANAGAR, BANGALORE 560 040. Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 4. SMT. PADMINI ASHOK W/O ASHOK, AGED ABOUT 65 YEARS, RESIDING AT NO. 1130, OUT HOUSE, VYALIKAVAL, 15TH CROSS, MALLESWARAM, BANGALORE - 560 003. …RESPONDENTS (BY SRI. DELHI CUCKOO, ADVOCATE FOR R2; SRI. H. PAVANACHANDRA SHETTY, ADVOCATE FOR R1; R3 AND R4 ARE SERVED) THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 21.10.2024 PASSED ON I.A.NO.1 IN OS.NO.434/2024 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CCH-32, BENGALURU, DISMISSING THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT This appeal is filed by the plaintiff questioning the order dated 21.10.2024 passed on I.A.No.I filed under Order XXXIX Rules 1 and 2 read with Section 151 of CPC in O.S.No.434/2024 on the file of XX Additional City Civil and Sessions Judge (CCH-32), Bengaluru City1, thereby, 1hereinafter referred to as ‘the Trial Court’ for short - 3 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 the application filed by the plaintiff seeking to grant an order of temporary injunction was dismissed. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 3. The appellant/plaintiff has filed the suit for permanent injunction claiming that one G. Shyamsundar had executed the registered Will dated 24.09.2021. The wife of G. Shyamsundar, namely Vani had inherited the suit schedule property in the partition deed dated 04.11.1989 among her sisters; hence, Vani had inherited the suit schedule property from her parents. Vani died on 29.08.2019; therefore, it is the case of plaintiff that after the death of Vani, her husband G. Shyamsundar had become the owner of the suit schedule property and this G. Shyamsundar was being looked after by the plaintiff. Hence, out of love and affection, the plaintiff had taken care of G. Shyamsundar; therefore, he had executed the Will in favour of plaintiff. Thus, claiming to be the title - 4 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 holder, the plaintiff has filed the suit for permanent injunction that he is in possession over the suit schedule property. 4. It is the averment in the written statement of the defendants that G. Shyamsundar did not have any competency or authority to execute the Will in favour of the plaintiff. Admittedly, the suit schedule property was devolved upon Vani, who is the wife of G. Shyamsundar. In the partition, she obtained share through her parents; hence, as per Section 15 (2) (a) of the Hindu Succession Act, 1956 (for short 'the HS Act, 1956’), the defendants have inherited the suit schedule property, but not the said G. Shyamsundar. 5. Further submitted that the defendants are in possession over the suit schedule property and the cause title of the plaint filed by the plaintiff himself shows that the address of the defendants as that of suit schedule property. Therefore, the plaintiff himself admitted that the defendants are in possession. Further submitted that the - 5 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 title and ownership still lies with the Bengaluru Development Authority (for short ‘the BDA’) over the suit schedule property as Vani’s father was the only allottee of the suit schedule property and he did not get execution of the registered sale deed in his favour and therefore, still the BDA is the owner of the suit schedule property. Hence, on this count also, the defendants have questioned the competency of G. Shyamsundar regarding execution of the Will in favour of the plaintiff. Therefore, submitted that when this being a serious question of title involved and moreover the plaintiff’s prima facie failed to show that he is in possession over the suit schedule property as the cause title of the plaintiff himself shows that he is residing in Mysore, the Trial Court has dismissed the application. Thus, prays to dismiss the appeal. 6. Upon hearing the rival submissions made by both the learned counsel appearing for the parties and upon perusal of the materials placed on record, the following points would arise for my consideration: - 6 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 i. Whether, under the facts and circumstances involved in the case, the plaintiff has made out a prima facie case so as to grant an order of temporary injunction? ii. Whether, under the facts and circumstances involved in the case, the plaintiff has made out balance of convenience so as to grant an order of temporary injunction? iii. Whether under the facts and circumstances involved in the case, if an order of temporary injunction is not granted, then the plaintiff would suffer irreparable loss and injury? iv. Whether, the order passed by the Trial Court requires interference by this Court? 7. Admittedly, Vani is the wife of G. Shyamsundar and she has obtained the suit schedule property under the partition deed dated 04.11.1989, which took place between Vani and her sisters; therefore, Vani has inherited the suit schedule property through her parents. Vani died on 29.08.2019. It is a contention raised by the learned counsel for the respondents/defendants that in the context of the case, the governing law is Section 15 (2) (a) of the HS Act, 1956, but not Section 15 (1) of the HS Act, 1956. - 7 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 Hence, as per this, the suit schedule property devolved upon the defendants, who are legal heirs of the sisters of Vani. 8. On the other hand, the plaintiff is claiming ownership through the Will stated to have been executed by G. Shyamsundar, but the suit filed is only for bare injunction; hence, here there is a serious question of title is involved. The plaintiff has filed the suit for permanent injunction only, but on the other hand, the defendants have filed written statement and have also filed counterclaim denying the competency or authority of G. Shyamsundar to execute the Will in favour of plaintiff. The defendants have questioned the very competency or authority of G. Shyamsundar for execution of the Will. Moreover, in the written statement, the defendants have taken contention that Vani’s father, namely K.M. Prasad was the only allottee of the suit schedule property/site from the City Improvement Trust Board (for short ‘the CITB’) erstwhile BDA and the CITB/BDA has not executed - 8 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 any sale deed in favour of K.M. Prasad. Hence, the BDA is the owner till today and when this being the fact pleaded in the written statement and contention taken in the counterclaim, the question for consideration is how G. Shyamsundar was having competency or authority to execute the Will. 9. The defendants have questioned the very execution of the Will by filing counterclaim, but at the same time, the suit filed is only for permanent injunction. In the suit for permanent injunction, the question of title cannot be decided; hence, when this being the facts and circumstances revealed, there is a serious dispute regarding the title over the suit schedule property/site. 10. When this being the fact, in order to show the prima facie possession over the suit schedule property, since the suit is only filed for permanent injunction, it is incumbent upon the plaintiff to show prima facie who is in possession over the suit schedule property/site. The plaintiff has only produced endorsement and Khatha - 9 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 issued by the BBMP. Here the question as above discussed that is when the BDA had not executed the registered sale deed in favour of K.M. Prasad, then on this count also, the question of ownership is to be decided in the suit before the Trial Court. Hence, the question prima facie appears for consideration is what the competency or authority of G. Shyamsundar to execute the Will in favour of plaintiff when the competency or authority of G. Shyamsundar itself is questioned by contending that the BDA is the owner of the suit schedule property/site. 11. If the plaintiff had filed the suit for declaration to declare his title on the basis of the Will stated to have been executed by G. Shyamsundar and shown prima facie materials that he is in possession over the suit schedule property, then the thing would have different and the case of the plaintiff would have been accepted for grant of an order of temporary injunction. But, when there is serious question of title involved as above discussed and moreover, the suit is only filed for permanent injunction, - 10 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 the plaintiff himself has shown in the cause title of the plaint that defendant No.2 is in possession over the suit schedule property as the address shown therein tallies with the suit schedule property and the very same cause title prima facie shows that the plaintiff is residing in Mysore. In an endorsement and khatha issued by BBMP, it shows the suit schedule property No.8/5, 15th Cross, Vyalikaval; also there is no prima facie materials to show that whether this No.8/5, is the same number of suit schedule property/site No.115. Hence, the plaintiff has not shown prima facie that he is in possession over the suit schedule property/site by producing some materials. Whereas, the materials produced by the defendants viz., Aadhar Card, Driving Licence, Voters ID and Karnataka State Bar Council Identity Card, all prima facie show that defendant No.2 is residing in the address given by the plaintiff in the plaint schedule. Therefore, the Trial Court is correct in coming to conclusion that the plaintiff has not made out prima facie and accordingly, the Trial Court has - 11 - HC-KAR NC: 2025:KHC:45509 MFA No. 8513 of 2024 rightly dismissed the application filed seeking to grant an order of temporary injunction. Accordingly, I answer point Nos.(i) to (iv) in the Negative. Hence, there is no need to make interference as there is no perversity found in the order passed by the Trial Court. Thus, the appeal is liable to be dismissed. 12. Accordingly, the appeal is dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 1 Sl No.: 22