Karnataka High Court
Ayyappaswami @ Ayyappayyaswami vs Ambika on 29 May, 2025
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NC: 2025:KHC-K:2767
WP No. 201459 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.201459 OF 2025 (GM-CPC)
BETWEEN:
1. SRI AYYAPPASWAMI @ AYYAPPAYYASWAMI
S/O MALLAYYASWAMI,
AGED ABOUT 44 YEARS, OCC: AGRICULTURE,
R/O MASKI TOWN, TQ. MASKI, DIST. RAICHUR.
2. SRI SHIVKUMAR S/O SHANKRAPPA,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O MASKI TOWN,
TQ. MASKI, DIST. RAICHUR.
...PETITIONERS
Digitally signed
by LUCYGRACE (BY SRI SHRAVAN KUMAR MATH, ADVOCATE FOR
SRI GURUBASAVA BASANNA, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
SMT. AMBIKA W/O AMARAYYA,
AGED ABOUT 38 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O MASKI TOWN, TQ. MASKI,
DIST. RAICHUR-585 401.
...RESPONDENT
(BY SRI B.K. HIREMATH, ADVOCATE)
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WP No. 201459 of 2025
HC-KAR
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF WRIT OF CERTIORARI BY QUASHING THE
JUDGMENT PASSED IN M.A.NO.5043/2024 DATED 28.04.2025
BY THE COURT OF III ADDL. DISTRICT AND SESSIONS JUDGE
AT RAICHUR SITTING AT SINDHANUR WHICH IS AT
ANNEXURE-L AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE R.NATARAJ
ORAL ORDER
(PER: HON'BLE MR. JUSTICE R.NATARAJ)
The defendants in O.S.No.110/2024 pending
consideration before the Senior Civil Judge, Lingasugur are
before this Court in this writ petition, challenging an order
dated 28.04.2025 passed by the III Additional District and
Sessions Judge, Raichur, sitting at Sindhanur in
M.A.No.5043/2024, by which applications filed (I.A. Nos.I
and III) in O.S. No.110/2024 were allowed and defendant
No.2 was restrained from forming plots in the suit
schedule properties and from selling the schedule
properties till the disposal of the suit.
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2. The suit in O.S. No.110/2024 was filed for
declaration of title, for recovery of possession and for
cancellation of the sale deed executed by defendant No.1
in favour of defendant No.2 in respect of the suit
properties. The plaintiff claimed that the suit properties
belonged to her paternal aunt Smt. Kallamma and that she
bequeathed the same to the plaintiff in terms of a Will
dated 30.05.2016. She later died on 05.01.2022 and that
the plaintiff inherited the suit properties. She contends
that defendant No.1 claimed that he was fostered by
Smt. Kallamma and that after she died, he succeeded to
the suit properties. She contends that defendant No.1
conveyed the suit properties to defendant No.2 and that
the defendant No.2 got the same converted for non-
agricultural residential use and is attempting to form a
layout in the suit properties. She therefore, sought for
declaration of her title based on the Will dated 30.05.2016
and sought for recovery of possession and also for setting
aside the sale deed executed by defendant No.1 in favour
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of defendant No.2. Applications for interim injunction were
filed to restrain the defendant No.2 from alienating or
forming any plots in the suit properties.
3. The Trial Court granted an ex-parte order of
injunction restraining the defendant No.2 from forming
any layout or selling the sites formed therein.
4. The defendants entered appearance and filed
I.A.No.II for vacating interim injunction. The defendants
also filed objections to the applications filed by the plaintiff
for interim injunction. In the affidavit accompanying the
application for vacating the order of injunction, the
defendants contended that the properties bequeathed in
the Will were not the suit properties. It was also
contended that as on the date of the Will, Smt. Kallamma
had no valid title and possession of the suit properties and
therefore, the Will executed would not help the plaintiff in
any manner.
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5. The Trial Court after considering the
contentions urged in the application for vacating the
interim injunction, allowed the application filed by the
defendants and vacated the order of injunction granted.
Feeling aggrieved by the said order, the plaintiff filed
M.A.No.5043/2024. The Appellate Court noticed that both
defendant No.1 and the plaintiff were claiming title to the
suit properties through Smt. Kallamma. The Appellate
Court held that since the plaintiff claimed title to the suit
properties in terms of the Will executed by Kallamma, the
Trial Court was bound to decide whether the Will was
genuine or not and whether defendant No.1 being the
foster son of Kallamma had acquired any right, title or
interest after the death of Kallamma. It also held that the
plaintiff was the niece of Kallamma, while defendant No.1
claimed to be the foster son of Kallamma and hence, it
held that the plaintiff being the nearest legal heir of
Kallamma was entitled to inherit the suit properties and
not the defendant No.1. Therefore, it held that the
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plaintiff had a fair chance of success in the suit and had
made out a prima facie case. Consequently, it allowed the
appeal and set aside the order passed by the Trial Court
and allowed the applications filed by the plaintiff and
restrained the defendant No.2 from forming plots in both
suit properties and restrained the defendant No.2 from
encumbering or alienating the suit properties till the
disposal of the suit.
6. Being aggrieved by the said order, the
defendants are before this Court in this writ petition.
7. Learned counsel for the petitioners/defendants
submits that defendant No.2 had purchased the suit
properties from defendant No.1 and had spent substantial
sums of money for conversion of the land for
non-agricultural residential use and also had obtained a
plan from the competent authority. He contends that
defendant No.2 would therefore be put to great loss and
injury, if he is restrained from forming the layout or from
selling the plots formed therein. He contends that the
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details of the properties mentioned in the Will shows that
the properties allegedly bequeathed in favour of the
plaintiff are not the properties which are the subject
matter of the suit and therefore, the Appellate Court must
have considered this question.
8. Learned counsel for the respondent/plaintiff, on
the other hand contended that the only two properties that
were left behind by Smt. Kallamma are the suit properties
which were bequeathed to the plaintiff. Therefore, he
contends that it is for the plaintiff to establish the lawful
execution of the Will and defendant No.1, who claims to be
a foster son, has no caveatable interest to deny the lawful
execution of the Will. He contends that therefore, the
Appellate Court was justified in granting the order of
injunction.
9. I have considered the submissions of the
learned counsel for the petitioners/defendants and the
learned counsel for the respondent/plaintiff.
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10. The plaintiff claims to be the niece of
Smt. Kallamma, who was the owner of the suit schedule
properties. The plaintiff claimed that Kallamma executed
a Will dated 30.05.2016 bequeathing the suit properties
and that after the death of Kallamma, she had inherited
the same. Defendant No.1, on the other hand claimed to
be the nephew of Smt. Kallamma and that he was fostered
by Smt. Kallamma and that after her death, he had
succeeded the suit properties. Therefore, there is no
dispute about the antecedent title of Smt. Kallamma to the
suit properties. The question is whether Smt. Kallamma
had bequeathed the suit properties to the plaintiff. If the
answer to the above question is in the affirmative, then
the plaintiff would succeed in the suit. In case the plaintiff
failed to prove the lawful execution of the Will, the
defendant No.1, who claims to be the nephew also stood a
chance to succeed to an undivided share in the suit
properties of Smt. Kallamma. Therefore, as rightly held by
the Appellate Court, the plaintiff had made out a triable
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case and hence, an order of injunction had to follow to
restrain the defendant No.2 from forming any layout or
encumbering any plots formed therein.
11. In that view of the matter, no interference is
warranted with in the impugned order. Hence, the writ
petition is dismissed.
12. Any observation made in this writ petition shall
not come in the way of the Trial Court deciding the suit on
merits.
Sd/-
(R.NATARAJ)
JUDGE
LG
