- 1 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL No. 2641 OF 2024 (CPC) BETWEEN: SMT. B. SHAKUNTHALA, D/ B.L. BOREGWDA, AGED ABOUT 34 YEARS, R/AT BYRAVESHWARA NILAYA, AMARJYOTHI NAGARA, TUMAKURU – 572 105. …APPELLANT (BY SRI. SHIVARAMU H.C., ADVOCATE) AND: SRI. B. GOVINDARAJU S/O VENKATASHAMAIAH, AGED ABOUT 53 YEARS, R/AT AKSHAYA NIVASE, KEMPEGOWDA ROAD, AMARJYOTHI NAGAR, TUMAKURU – 572 105. …RESPONDENT (BY SRI. M.B. CHANDRACHOODA, ADVOCATE) THIS MFA FILED U/O.43 RULE 1(r) OF THE CPC, AGAINST THE ORDER DT.08.02.2024 PASSED ON IA NO.1 IN O.S.NO.883/2022 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING IA NO.1 FILED U/O.39 RULE 1 AND 2 R/W SEC.151 OF CPC. Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR JUDGMENT The appeal is filed by the plaintiff questioning the order dated 08.02.2024 passed on I.A.No.1 in O.S.No.883/2022 by III Addl. Senior Civil Judge & JMFC., Tumkuru, thereby, the application filed for temporary injunction was dismissed. 2. The rank of the parties are referred to as per their rankings before the trial Court. 3. It is the case of the plaintiff as pleaded in the plaint averments that the plaintiff has purchased site No.C-8. The defendant is claiming site No.Y-9 formed in Survey No.39/1A at Amarajyothinagara, Tumkuru. One Smt.Lakshmi has purchased site No.Y-10 under the registered sale deed dated 28.03.2005 and katha was mutated in her name. The plaintiff has purchased site - 3 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 No.C-8 under the registered sale deed dated 24.06.2011 and katha was mutated in her name. The aforesaid Smt.Lakshmi instead of putting up construction in her site No.Y-10, but erroneously put up construction on site No.C- 8 belonging to the plaintiff. The plaintiff and said Smt.Lakshmi after coming to know of this fact, mutually entered into an understanding and thereupon, deed of exchange was executed on 22.11.2021 between the plaintiff and said Smt.Lakshmi, wherein the plaintiff has become the owner of site No.Y-10 and said Smt.Lakshmi had become the owner of site No.C-8, wherein Smt.Lakshmi had constructed building. The defendant who is the adjacent owner of site No.Y-9 with the permission of Smt.Lakshmi had put up temporary shed on site No.Y-10 to accommodate his servants with an assurance to dismantle and clear the shed on demand. When this being the fact, the plaintiff after becoming the owner of site No.Y-10 entered into possession of the site and requested the defendant to dismantle the temporary shed put up by - 4 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 the defendant, but the defendant has refused and obstructed the plaintiff’s possession over site No.Y-10. Therefore, the plaintiff is constrained to file the suit for declaration that the plaintiff is the owner of suit schedule property i.e., site No.Y-10 and for permanent injunction. 4. Learned counsel for the appellant/plaintiff submitted that by virtue of deed of exchange, the plaintiff had become the owner of site No.Y-10, which is adjacent to site No.Y-9 and the defendant is interfering with the possession of the plaintiff. Site No.Y-10 is formed in Survey No.39/1A measuring 35 x 35 feet and also katha was mutated in the name of plaintiff, but the defendant erroneously claiming that there is no site No.Y-10 existed just to grab the site. When this being the fact, the trial Court has erroneously dismissed the application without considering the material produced before the Court. Therefore, prays for grant of an order of temporary injunction. - 5 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 5. On the other hand, learned counsel for the respondent/defendant submitted that site No.Y-10 is not in existence as the boundaries are not tallying. Further the plaintiff has not produced the sale deed for having purchased site No.C-8. Therefore, whatever the deed of exchange, is only an illusionary one. Hence, when there is no prima facie material to show that the plaintiff initially has purchased site No.C-8, therefore, there is no question of deed of exchange between the plaintiff and Smt.Lakshmi and hence, the plaintiff is falsely claiming that she has become the owner of site No.Y-10 and this is correctly appreciated by the trial Court and rightly dismissed the application filed for temporary injunction, which needs no interference. Therefore, prays to dismiss the appeal. 6. Upon hearing the submission of learned counsel appearing for the parties and on perusal of the material produced, the following points arise for my consideration: - 6 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 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 an order of temporary injunction? ii Whether, under the facts and circumstances of the case, the plaintiff makes out the 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? 7. The trial Court has dismissed the application on the reason that the plaintiff has not produced the document of registered sale deed for having purchased site No.C-8. Therefore, doubted as to how the plaintiff has become the owner of site No.C-8. Therefore, by finding fault with non-production of documents pertaining to site No.C-8 and formed opinion that the said document has not been produced. Hence, the plaintiff has not made out prima facie case, thus, dismissed the application. - 7 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 8. In the plaint, the plaintiff has pleaded that he has purchased site No.C-8 through the registered sale deed dated 24.06.2011. During the course of argument in the appeal, the learned counsel for the appellant has filed the application under Order XLI Rule 27 r/w Section 151 of CPC for production of documents. Though, at this stage, the documents produced are not to be considered as evidence as pleaded before the trial Court during trial, but the documents produced along with the application ought to be considered as a prima facie document only for the purpose of considering the appeal whether to grant temporary injunction or not. The plaintiff has produced the copy of sale deed dated 24.06.2011 that she has purchased site No.C-8 at Upparahalli Layout having dimension of 35 x 35 feet. 9. It is the case of the plaintiff that one Smt.Lakshmi was the owner of site No.Y-10, but said Smt.Lakshmi had put up construction on site No.C-8 - 8 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 belonging to the plaintiff and later came to know of the fact that both the plaintiff and said Smt.Lakshmi have come to the understanding and executed the registered deed of exchange dated 22.11.2021, thereby, the plaintiff has become the owner of site No.Y-10 and Smt.Lakshmi has become the owner of site No.C-8. The said registered deed of exchange was produced before the trial Court. Therefore, there is prima facie case is made out that the plaintiff has acquired the ownership over site No.Y-10. The plaintiff has produced the copy of registered sale deed dated 28.03.2005 that Smt. Lakshmi had purchased the property in site No.Y-10 on 28.03.2005 from her vendor A.S.Yashoda. Therefore, the plaintiff has produced the prima facie materials to show that, initially, the plaintiff had purchased the property in site No.C-8 and Smt.Lakshmi had purchased site No.Y-10. Later on as stated above, the exchange deed was executed. Thus, in this way, the plaintiff had become the owner of site No.Y-10. - 9 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 10. Initially, site No.C-8 was standing in the name of plaintiff and site No.Y-10 was standing in the name of Smt.Lakshmi and after execution of registered deed of exchange, they have become the owner of sites respectively as above discussed. The plaintiff has produced the copy of layout approval order that katha was effected in respect of site No.C-8 along with other sites. Therefore, all these documentary materials prima facie show that there is existence of site Nos.C-8 and Y-10. Therefore, on the existence of these two sites, there was execution of exchange deed between the plaintiff and Smt.Lakshmi. Thus, the plaintiff has become the owner of site No.Y-10. The defendant is the owner of adjacent site No.Y-9. 11. The trial Court has found fault with the plaintiff that the plaintiff has not produced the document to show that originally she has purchased site No.C-8 and katha effected in her name. On the basis of non-production of the said documents, the trial Court has dismissed the - 10 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 application filed for temporary injunction. But in this appeal, the plaintiff has produced the sale deeds that originally belong to site No.C-8, which she has purchased earlier. Therefore, the plaintiff has made out prima facie case and balance of convenience. The other reason assigned by the trial Court in rejecting the application that there was recitals in the exchange deed dated 22.11.2021 would go to show that there is yet another exchange deed dated 02.11.2021, but this is not produced before the Court. 12. Upon considering the prima facie document i.e., deed of exchange dated 22.11.2021, there is only rectification of mentioning the survey number, originally, it was Survey No.39/1 and later it was rectified as survey No.39/1A by way of rectification deed dated 02.11.2021. This is not the reason just for non-production of rectification deed disentitles the plaintiff to claim equitable relief of injunction. Therefore, only on this non-production of documents in this regard, the trial Court magnified this - 11 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 lapse on the plaintiff, thus, dismissed the application for injunction. But as discussed above, the plaintiff has made out prima facie case. Thus, if prima facie case and balance of convenience is made out by the plaintiff, and if an order of temporary injunction is not granted that would cause injury to the plaintiff. Therefore, the order passed by the trial Court requires interference. Thus, the appeal is liable to be allowed. Accordingly, answered point Nos.i, ii and iii in affirmative. 13. Hence, I proceed to pass the following ORDER i. The appeal is allowed. ii. The order dated 08.02.2024 passed on I.A.No.1 in O.S.No.883/2022 by III Addl. Senior Civil Judge & JMFC., Tumkuru, is hereby set aside. iii. An order of temporary injunction restraining the defendant, his agents, servants or anybody acting on his behalf from causing interference - 12 - HC-KAR NC: 2025:KHC:32004 MFA No. 2641 of 2024 or any attempts to cause interference over the suit schedule property is granted. iv. No order as to costs. SD/- (HANCHATE SANJEEVKUMAR) JUDGE PB List No.: 1 Sl No.: 74