[Cites 11, Cited by 0]
Karnataka High Court
Shri. Jai Prakash Reddy vs Smt. Prabhavathi on 31 January, 2026
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31st DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REVIEW PETITION NO.399 OF 2025
BETWEEN:
1. SHRI. JAI PRAKASH REDDY
S/O. LATE N.A. RAMAKRISHNA REDDY,
AGED ABOUT 64 YEARS,
R/AT. NO.90, DODDANEKUNDI VILLAGE
AND POST, BENGALURU - 560 037.
2. SHRI. RAJAREDDY,
S/O. SHRI. PAPAIAH,
AGED ABOUT 61 YEARS,
R/AT. NO.71/1, 3RD MAIN,
SRI. CHOWDESHWARI LAYOUT,
MARATHAHALLI, BENGALURU-560 037.
3. SHRI. B. A. BASAVARAJA,
Digitally signed
by RAMYA D
S/O LATE ANJINAPPA,
Location: High
Court of
AGED ABOUT 61 YEARS,
Karnataka,
Dharwad R/AT. NO.6, SRI RAMA NILAYA,
Bench
BYRATHI, SRK NAGAR POST,
BANGALORE - 560 077.
...PETITIONERS
(BY SRI. PRAKASH TIMMANNA HEBBAR, ADVOCATE)
AND:
1. SMT. PRABHAVATHI
D/O. LATE P. BALAPPA REDDY,
W/O. ANJINAPPA,
AGED ABOUT 72 YEARS,
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R/AT. NO.19/2,
BEHIND MAHILA SANGHA,
KYALASANAHALLI VILLAGE,
KOTHANUR POST, BENGALURU - 77.
2. SHRI. KRISHNA REDDY,
AGED ABOUT 68 YEARS,
S/O. LATE P. BALAPPA REDDY,
RESIDING AT NO.154/1,
BALAPPA COMPOUND,
7TH MAIN, 80 FEET ROAD,
SUBBAIAHNA PALYA EXTENSION,
BENGALURU - 560 033.
3. SHRI. JAYASHANKAR,
S/O. LATE P. BALAPPA REDDY,
AGED ABOUT 60 YEARS,
RESIDING AT NO.154/1,
BALAPPA COMPOUND,
7TH MAIN, 80 FEET ROAD,
SUBBAIAHNA PALYA EXTENSION,
BENGALURU - 560 033.
4. SHRI. RAMANJIJAPPA,
S/O. LATE P. BALAPPA REDDY,
AGED ABOUT 60 YEARS,
RESIDING AT NO.154/1,
BALAPPA COMPOUND,
7TH MAIN, 80 FEET ROAD,
SUBBAIAHNA PALYA EXTENSION,
BENGALURU - 560 033.
5. SMT. NANDAKUMARI,
D/O. LATE P. BALAPPA REDDY,
W/O. RAJAGOPAL REDDY,
AGED ABOUT 55 YEARS,
R/AT. NO.2004/2003,
VIVEKANDANAGARA,
NEAR J.P. PUBLIC SCHOOL,
BANGARPET TALUK, KOLAR - 563 114.
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6. SMT. PUSHPAVATHI,
D/O. LATE P. BALAPPA REDDY,
W/O. NARAYANASWAMY,
AGED ABOUT 53 YEARS,
R/AT. NO.158,
OMBATTHUGULI VILLAGE,
KARAMANGALA POST,
BANGARPET TALUK,
KOLAR-563 114.
7. SMT. CHANDRAKALA,
D/O. LATE P. BALAPPA REDDY,
AGED ABOUT 51 YEARS,
RESIDING AT NO.154/1,
BALAPPA COMPOUND,
7TH MAIN, 80 FEET ROAD,
SUBBAIAHNA PALYA EXTENSION,
BENGALURU - 560 033.
8. SHRI. GURURAJ,
D/O. LATE P. BALAPPA REDDY,
AGED ABOUT 51 YEARS,
RESIDING AT NO.154/1,
BALAPPA COMPOUND,
7TH MAIN, 80 FEET ROAD,
SUBBAIAHNA PALYA EXTENSION,
BENGALURU - 560 033.
9. SHRI. GURURAJ,
D/O. LATE P. BALAPPA REDDY,
AGED ABOUT 51 YEARS,
RESIDING AT NO.154/1,
BALAPPA COMPOUND,
7TH MAIN, 80 FEET ROAD,
SUBBAIAHNA PALYA EXTENSION,
BENGALURU - 560 033.
10. SHRI. MANJUNATH,
S/O. LATE P. BALAPPA REDDY,
AGED ABOUT 51 YEARS,
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RESIDING AT NO.154/1,
BALAPPA COMPOUND,
7TH MAIN, 80 FEET ROAD,
SUBBAIAHNA PALYA EXTENSION,
BENGALURU - 560 033.
11. SMT. THIPPPAMMA
SINCE DEAD BY HER LRS
SMT. AMITHA REDDY,
D/O. LATE THIPPAMMA
AND CHIKKAYELLAPPA,
AGED ABOUT 70 YEARS,
R/AT. NO.88,
RAMASWAMYPALYA,
BANASWADI MAIN ROAD,
BENGALURU-560 033.
12. SMT. PARVATHI,
D/O. LATE NARAYANAPPA,
AGED ABOUT 74 YEARS,
ARE R/AT. CHIKKABANASWADI,
BANASWADI POST,
BENGALURU-560 033.
13. SHRI. PRAKASH,
S/O. LATE NARAYANAPPA,
AGED ABOUT 72 YEARS,
ARE R/AT. CHIKKABANASWADI,
BANASWADI POST,
BENGALURU-560 033.
14. SHRI. KANNA
S/O. LATE NARAYANAPPA,
AGED ABOUT 70 YEARS,
ARE R/AT. CHIKKABANASWADI,
BANASWADI POST,
BENGALURU-560 033.
15. SHRI. CHANDRU,
S/O. LATE NARAYANAPPA,
AGED ABOUT 68 YEARS,
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ARE R/AT. CHIKKABANASWADI,
BANASWADI POST,
BENGALURU-560 033.
16. SHRI. VASU,
S/O. LATE NARAYANAPPA,
AGED ABOUT 66 YEARS,
ARE R/AT. CHIKKABANASWADI,
BANASWADI POST,
BENGALURU-560 033.
17. SMT. SARASWATHI,
S/O. LATE NARAYANAPPA,
AGED ABOUT 64 YEARS,
ARE R/AT CHIKKABANASWADI,
BANASWADI POST,
BENGALURU-560 033.
18. SMT. HEMALATHA,
W/O. LATE S. RAGHU,
AGED ABOUT 52 YEARS,
R/AT NO.1/81,
SIDDARAMAPPA GARDEN,
LINGARAJAPURAM,
BENGALURU - 560 084
19. SMT. R. SHALINI,
D/O. LATE S. RAGHU,
AGED ABOUT 52 YEARS,
R/AT NO.1/81,
SIDDARAMAPPA GARDEN,
LINGARAJAPURAM,
BENGALURU - 560 084
20. SHRI. R. SOMASHEKAR,
S/O. LATE S. RAGHU,
AGED ABOUT 49 YEARS,
R/AT NO.1/81,
SIDDARAMAPPA GARDEN,
LINGARAJAPURAM,
BENGALURU - 560 084
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21. SMT. R. RAJALAKSHMI,
D/O. LATE S. RAGHU,
AGED ABOUT 48 YEARS,
R/AT NO.1/81 SIDDARAMAPPA GARDEN,
LINGARAJAPURAM,
BENGALURU - 560 084
22. SHRI. VENKATESH B.,
S/O. LATE BUDDA REDDY,
AGED ABOUT 61 YEARS,
R/AT NO.1/81 SIDDARAMAPPA GARDEN,
LINGARAJAPURAM,
BENGALURU - 560 084
...RESPONDENTS
(BY SRI. NANDA KISHORE, ADVOCATE)
THIS RP FILED UNDER ORDER 47 RULE 1 R/W SEC. 114
OF CPC, PRAYING TO ALLOW THIS REVIEW PETITION AND
REVIEW THE JUDGMENT DATED 11.08.2025 PASSED BY THIS
HONBLE COURT IN MISCELLANEOUS FIRST APPEAL
NO.1336/2025. THE ABOVE APPEAL CAME UP FOR
PRONOUNCEMENT ON 11.08.2025 BEFORE THE HONBLE MR.
JUSTICE RAMACHANDRA D. HUDDAR THE APPEAL WAS
ALLOWED IN TIME CF SUFFICIENT.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
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CAV ORDER
The review petitioners are defendant Nos.9 and 10 in
O.S.No.1168/2004, appellants in R.A.No.98/2020 and
impleading applicant as respondent No.15 in MFA
No.1336/2025 have filed this review petition under Order
XLVII Rule 1 r/w Section 114 of CPC praying to review the
order passed in MFA No.1336/2025 dated 11.08.2025
passed by this Court.
2. One Peddanna is the original propositus and he
had five children namely, Lakshmi Bai, Gurramma,
Thippamma, Narayanappa and Balappa Reddy and among
them, it is stated that Lakshmi Bai died unmarried.
Thippamma had filed the suit for partition in
O.S.No.1168/2004, which is dismissed. Thereafter,
R.A.No.98/2020 came to be filed, which is pending before
the First Appellate Court. In R.A.No.98/2020, the
appellant - Balappa Reddy has filed an application for
temporary injunction by invoking the provision under
Order XXXIX Rules 1 and 2 of CPC, but the same is
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dismissed by the order dated 19.12.2024. Being
aggrieved by dismissal of the said application, his legal
heirs have filed MFA No.1336/2025 praying for an interim
order of injunction. This Court on 11.08.2025 has allowed
the said MFA No.1336/2025 and granted an order of
temporary injunction restraining the defendant Nos.9 and
10 in O.S.No.1168/2004 and appellants R.A.No.98/2020
from interfering with the possession of suit schedule
properties and damaging any structure including the tomb
of Smt. Gurramma till the final disposal of
R.A.No.98/2020. Being aggrieved by allowing MFA
No.1336/2024 and granting an order of temporary
injunction, the present review petition is filed on the
ground that certain observations made by this Court in the
said MFA are error apparent on the face of the record.
Therefore, prays to review the order and modify the order
passed in MFA No.1336/2024.
3. The daughter of Peddanna namely, Thippamma
has filed the suit for partition and separate possession
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against the husband of defendant i.e., late Narayanappa.
It is stated that Pedanna during his lifetime has acquired
ancestral properties, which is land bearing Sy.No.12 to the
extent of 8 acre 16 guntas for sale consideration through
registered sale deed dated 02.10.1952. After acquiring
the same he was cultivating the suit schedule properties
and after his death, the husband of defendant No.1
namely, Narayanappa and defendant No.2 namely,
Balappa Reddy are cultivating the said land jointly.
Therefore, filed the suit for partition and separate
possession in the suit schedule properties and the said suit
O.S.No.1168/2004 is dismissed.
4. The plaintiff - Thippamma has not preferred any
appeal against the dismissal of suit, but the daughter of
Balappa Reddy has preferred an appeal in R.A.No.98/2020
before the first appellate court, which is pending for
consideration. In the said R.A.No.98/2020 the appellant,
who is daughter of Balappa Reddy has filed an
interlocutory application under Order XXXIX Rules 1 and 2
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of CPC, which also came to be dismissed. Against which,
MFA No.1336/2025 was filed and is allowed by granting an
order of temporary injunction.
SUBMISSION OF COUNSEL FOR REVIEW PETITIONERS:
5. Learned counsel for the review petitioner -
Sri.Prakash T. Hebbar submitted that Peddanna had
purchased 8 acre 18 guntas of land in Sy.No.12 (new
No.85) of Kyasanahalli Village under registered sale deed
dated 02.10.1952. Thereafter there was partition between
Peddanna, Narayanappa and Balappa Reddy and according
to the said partition Narayanappa continued in exclusive
possession of 4 acre 9 guntas (northern portion) and
Balappa Reddy has obtained 4 acre 9 guntas (southern
portion). On 28.06.1973 Balappa Reddy executed a
registered release deed relinquishing all his rights in the
said property by accepting the other properties and
severed from Hindu Undivided Family. Peddanna died in
the year 1978. It was the contention of Balappa Reddy
that his father Peddanna had executed a Will bequeathing
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southern portion of the property of 4 acre 9 guntas in his
favour and therefore, filed the suit O.S.No.1167/1982 for
declaration and injunction based on the Will, but said suit
came to be dismissed for default. Miscellaneous
No.490/1985 was filed for restoration of
O.S.No.1167/1982, but the same was also dismissed.
Again the said Balappa Reddy has filed O.S.No.590/1988
for declaration and injunction based on the Will dated
11.07.1974, but said suit was dismissed on 04.04.2000 as
the Will is not proved.
6. The Assistant Commissioner on 21.10.1982
allowed Narayanappa's appeal initiated under Section
136(2) of the Karnataka Land Revenue Act, 1964 and set
aside the mutation, which was in the name of Balappa
Reddy and restored the entries in Narayanappa's name.
Thereafter, Thippamma, the daughter of Peddanna has
filed O.S.No.1168/2004 seeking partition and separate
possession over the land measuring 8 acre 18 guntas, but
said suit is dismissed. Against dismissal of
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O.S.No.590/1988, (above stated) Balappa Reddy has filed
RFA No.509/2000, which is also dismissed.
7. Legal heirs of Narayanappa executed two
registered sale deeds in favour of review petitioners (4
acre 9 guntas) and the review petitioners took possession
and mutations were made in their names. Against
dismissal of RFA No.509/2000, Balappa Reddy has filed
Review Petition No.39/2005 and this Court held the finding
that Will is not proved, is sound and proper and has
upheld the said decision but gave liberty to seek share in
O.S.No.1168/2004, which is filed by his sister Thippamma.
Also Balappa Reddy filed O.S.No.1452/2009 for declaration
based on unregistered Panchayat Parikhat, which is also
dismissed. Against which, RFA No.1795/2015 is pending.
8. O.S.No.1168/2004 came to be dismissed on
merits on 25.10.2019, against which R.A.No.98/2020 is
filed by Balappa Reddy and during the pendency of the
appeal he died. Therefore, his legal heirs have continued
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the said appeal and also filed an application under Order
XXXIX Rules 1 and 2 CPC seeking for temporary
injunction, but same is dismissed. Against which, MFA
No.1336/2025 is filed and this Court by order dated
11.08.2025 has allowed the said MFA and granted an
order of temporary injunction by raising various grounds
that the order suffers error apparent on the face of the
record.
9. Learned counsel for the review petitioner
submitted that on 02.10.1952 Peddanna had purchased
land to the extent of 8 acre 18 guntas through registered
sale deed and thereafter it was divided between
Narayanappa and Balappa Reddy and Narayanappa
obtained 4 acre 9 guntas and Balappa Reddy had got 4
acre 9 guntas. Thereafter on 26.06.1992 Balappa Reddy
executed registered relinquishment deed relinquishing all
his rights in favour of Peddanna (father) and
Narayanappa. Therefore, Balappa Reddy has relinquished
all his shares by accepting other properties, which was a
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family arrangement. Further submitted that Balappa
Reddy has filed a suit for declaration and injunction in
O.S.No.1167/1982 based on the Will by contending that
Peddanna had executed a Will and bequeathed the
property, but said suit is dismissed for default. Against
which, Miscellaneous No.490/1985 filed for restoration of
said suit, is also dismissed. Therefore, submitted that
claim of Balappa Reddy based on the Will is rejected.
Further once again Balappa Reddy had filed
O.S.No.590/1988 for declaration and injunction based on
the very same Will, but his contest was dismissed on
04.04.2000 as the Will is not proved.
10. Further argued that Balappa Reddy had filed
RFA No.509/2000 against the dismissal of suit
O.S.No.590/1988, which is also dismissed. Therefore,
finding on the Will is proved to be not executed.
Therefore, Balappa Reddy did not have any claim over suit
schedule land by virtue of Will. Against which, Balappa
Reddy has filed a R.P.No.39/2005 in which it is held that
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the execution of Will is not proved and dismissed the claim
of the Balappa Reddy claiming his right through Will, is not
established, but this Court gave liberty to seek share in
the properties. In the meantime, Thippamma filed the suit
for partition in O.S.No.1168/2004, which is dismissed.
Thippamma has not preferred an appeal and she has
accepted the decree of dismissal of suit. In
O.S.No.1168/2004 Balappa Reddy being one of the
defendants, had asserted his claim once again on the basis
of the Will claiming exclusive ownership, but same is
dismissed. Therefore, R.A.No.98/2020 filed by Balappa
Reddy and continued by legal heirs, does not survive for
consideration. Therefore, Balappa Reddy does not have
any share in the suit schedule properties as he is estopped
from claiming share in the suit properties. Therefore,
though this Court in R.P.No.39/2005 gave liberty to seek
share in the property, but his assertion of right to claim
share in the property does not arise. Therefore, Balappa
Reddy is estopped by virtue of judicial pronouncement as
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above stated. When this being the fact that basically
regular appeal above stated is not maintainable, Balappa
Reddy and his legal heirs are not entitled for any share.
Therefore, submitted that by filing R.A.No.98/2020 the
appellants in regular appeal cannot seek partition.
11. Further submitted that this Court in MFA
No.1336/2025 dated 11.08.2025 at para 7 of the order
has given erroneous finding that the observation that
Peddanna executed a registered Will whereby he
bequeathed southern properties including the entire
northern portion of the suit schedule property to Balappa
Reddy alone is established, is not the correct observation
as the said observation goes contrary to the findings in the
suit, appeal and in review petition that the Will is not duly
proved. Therefore, observing that relying on the said Will
still Balappa Reddy and his legal heirs are having right to
share is contrary to the admitted materials on record and
error apparent on the face of the record. Therefore,
submitted that main reason of granting an order of
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temporary injunction based on the Will is not correct as by
judicial pronouncement as above stated the execution of
Will is not proved. Therefore, the order of grant of
temporary injunction is not correct.
12. Further submitted that this Court in the said
appeal MFA No.1336/2025 by the order dated 11.08.2025
has given finding on the Will as if it is proved and as such
this is judicial over reach. Therefore, when Balappa Reddy
has failed to prove the execution of Will, but on the very
same Will granting temporary injunction is not correct.
13. Further submitted that observations made at
para 8 in the order that after death of Peddanna in the
year 1978 Balappa Reddy took possession and began
cultivating the land, is not correct. Balappa Reddy has
already executed registered release deed relinquishing his
share over the suit schedule land by accepting the other
properties. Therefore, Balappa Reddy and his legal heirs
were never in possession, but this is not correctly
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appreciated by this Court and wrongly held that Balappa
Reddy was in possession, which is contrary to the evidence
and thus, error apparent on the face of the record. When
the appellants in R.A.No.98/2020 do not have prima facie
case and balance of convenience to get share in
R.A.No.98/2020, granted an order of temporary
injunction, which is not correct. Therefore, justified the
order of the trial court in rejecting the application filed for
temporary injunction in O.S.No.1168/2004.
14. Further submitted that the review petitioners
have purchased the suit schedule property from legal heirs
of Narayanappa on 24.11.2024. The O.S.No.1168/2004 is
dismissed on 25.10.2019, RFA No.509/2000 is dismissed
on 03.09.2004 and also R.P.No.39/2005 in RFA
No.509/2000 is dismissed on 13.10.2006. After dismissal
of RFA No.509/2000 and O.S.No.1168/2004, the review
petitioners have purchased the property on 24.09.2004,
hence the doctrine of lis pendens as per Section 52 of the
Transfer of Property Act, 1882, is not applicable.
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Therefore, review petitioners are bonafide purchasers for
valuable consideration. The finding on the Will that its
execution is not proved is confirmed and as such the
appellants in R.A.No.98/2020 cannot claim any right over
the suit schedule property. Balappa Reddy had attempted
three times by filing O.S.No.1186/1982, O.S.No.590/1988
and O.S.No.1452/2009 and in all these attempts he failed
to establish his rights through the Will. When this being
the fact and also in R.A.No.98/2020 the appeal filed by
Balappa Reddy is only against the Will is concerned, which
is already held not proved in RFA No.509/2000, hence
submitted that the appellants in R.A.No.98/2020 do not
have any right over the suit properties, but this Court in
the above said MFA No.1336/2025 has wrongly given
finding, which is error apparent on face of the record.
15. Further submitted that this Court in the said
MFA as if it has given finding on the execution of the Will
and based on which granted order of temporary injunction,
is not correct. Therefore, submitted that it is error
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apparent on the face of the record and thus, reviewable by
all the documents produced. Therefore, submitted that
the above facts are also not disputed by the respondents.
Therefore, the observations and granting order of
temporary injunction is error apparent on the face of the
record. Therefore, prays for review of the order.
16. Further learned counsel for the review
petitioners by placing reliance on the judgments of Hon'ble
Supreme Court in ELUMALAI ALIAS VENKATESAN AND
ANR. v. M.KAMALA AND ORS. AND ETC.1 submitted
that this case is squarely applicable to the case on hand
since Balappa Reddy has executed the release deed
relinquishing his right in favour of Narayanappa and
Peddanna by receiving other properties, as he has
estopped to make claim again. Therefore, once again he
cannot claim right over it and submitted that the factual
matrix in the above said case are same as involved in the
present review petition. Therefore, prays to review the
1
AIR 2023 SC 659
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order on the principle of law laid down by the Hon'ble
Supreme Court in the above said decision.
SUBMISSION OF COUNSEL FOR RESPONDENTS:
17. On the other hand, learned counsel for the
respondents, who are appellants in R.A.No.98/2020
submitted that though the contention of Balappa Reddy
regarding claiming exclusive right over the suit property is
dismissed, but by virtue of liberty granted in
R.P.No.39/2005 the respondents (appellants in
R.A.No.98/2020) are pursuing their shares. Therefore, the
respondents cannot be deprived off their rights. Further
submitted that upon considering genealogy produced in
O.S.No.1168/2004 the respondents who are legal heirs of
Balappa Reddy are also having right to claim share and
also submitted that even if accepting the registered
release deed executed by Balappa Reddy, still the legal
heirs of Balappa Reddy are having right of share as per
principle of notional share in the partition upon death of
Peddanna. Therefore, under these circumstances, if the
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nature of property is altered then the legal heirs of
Balappa Reddy would be put into much loss and injury.
Hence, justified the order of temporary injunction.
18. Further submitted that Balappa Reddy had
executed deed of exchange but not registered release
deed though the nomenclature is release deed, but on
merits the documents speak it is deed of exchange. Also
submitted that suit filed by Narayanappa for injunction in
O.S.No.3358/1996 is dismissed. Therefore, plea of
Narayanappa that he is in possession is rejected in the
said suit O.S.No.3358/1996. Therefore, submitted that
the legal heirs of Balappa Reddy are in possession of the
property.
19. Further submitted that after the death of
Gurramma she was buried in the said land and her tomb is
in existence. Therefore, if the nature of land is altered
that would destroy the tomb hurting the sentiments of
legal heirs of Balappa Reddy. Therefore, considering this
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the Court has rightly granted the order of temporary
injunction. Therefore, prays to dismiss the review petition
by upholding the order of temporary injunction granted in
MFA No.1336/2025.
20. Learned counsel for the respondents places
reliance on the following judgments of Hon'ble Supreme
Court:
(i) ILR (1935) 62 CAL 701: HARACHANDRA
DAS v. BHOLANATH DAS
(ii) (1974) 2 SCC 393: GANGA BAI v. VIJAY
KUMAR AND OTHERS
(iii) AIR 1996 KAR 296: HANUMANTHA RAO v.
CORPORATION OF THE CITY OF BANGALORE
(iv) AIR 1953 MAD 485: SRIMATHI K.
PONNALAGU AMMANI v. THE STATE OF
MADRAS
(v) (2020) 9 SCC 501: V.N. KRISHNA MURTHY
AND ANOTHER v. RAVIKUMAR AND OTHERS
(vi) AIR 1957 HYD 23: PHOOLA BHANNA v.
REKHA DEVA
(vii) 1983 SCC ONLINE SC 373: DR. P. NALLA
THAMPY THERA v. B.L.SHANKER AND OTHERS
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(viii) (1983) 2 SCC 132: BHAGWAN SWAROOP
AND OTHERS v. MOOL CHAND AND OTHERS
(ix) (2010) 2 SCC 107: DWARIKA PRASAD v.
NIRMALA AND OTHERS
(x) W.P.NO.23410/2025 (GM-CPC):
K.G.SHANKAR BABU v. M. CHANDRA SHEKAR
AND OTHERS
(xi) (2022) 10 SCC 461: GREGORY PATRAO AND
OTHERS v. MANGALORE REFINERY AND
PETROCHEMICALS LIMITED AND OTHERS
(xii) ILR 2001 KAR 638: D.V.LAKSHMANA RAO v.
STATE OF KARNATAKA AND OTHERS
(xiii) (2020) 270 DLT 36: TRIPTA KAUSHIK v.
SUB REGISTRAR VI-A AND ANOTHER
(xiv) AIR 1968 MAD 159 (FB): THE CHIEF
CONTROLLING REVENUE AUTHORITY v.
RUSTORN NUSSERWANJI PATEL
(xv) 2015 SCC ONLINE ALL 5678:
RAGHVENDRA JEET SINGH v. BOARD OF
REVENUE AND OTHERS
(xvi) AIR 1986 AP 42: KOTHURI VENKATA SUBBA
RAO v. STATE OF A.P.
(xvii) 2019 SCC ONLINE DEL 11153: HARI
KAPOOR v. SOUTH DELHI MUNICIPAL
CORPORATION
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(xviii) (1977) 1 SCC 17: PUZHAKKAL KUTTAPPU v.
C. BHARGAVI AND OTHERS
(xix) (2015) 16 SCC 787: YELLAPU UMA
MAHESWARI AND ANOTHER v. BUDDHA
JAGADEESWARARAO AND OTHERS
(xx) 1986 OLR 2 145: NARAYAN BISOI AND
ANOTHER v. RAGHUNATH BISOI
(xxi) FMAT 227 OF 2022 WITH CAN 1 OF 2022:
PRASANTA MAJI & ORS. v. SUKHBINDAR
SINGH & ORS.
(xxii) (2001) 5 SCC 568: ANAND PRASAD
AGARWALA v. TARKESHWAR PRASAD AND
OTHERS
(xxiii) (1992) 1 SCC 719: DALPAT KUMAR AND
ANOTHER v. PRAHLAD SINGH AND OTHERS
(xxiv) (1995) 1 SCC 170: MEERA BHANJA (SMT) v.
NIRMALA KUMARI CHOUDHURY
(xxv) (1995) 5 SCC 545: GUJARAT BOTTLING CO.
LTD. AND OTHERS v. COCA COLA CO. AND
OTHERS
(xxvi) 2017 SCC ONLINE DEL 8122: COLUMBIA
SPORTSWEAR COMPANY v. HARISH
FOOTWEAR & ANR.
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21. Having heard the arguments made by both the
learned counsels, the following points would arise for
consideration:
(i) Whether, the order passed in MFA
No.1336/2025 dated 11.08.2025 suffers
from error apparent on the face of the
record and thus, same is reviewable as
per Order XLVII Rule 1 of CPC?
(ii) Whether, the respondent Nos.2 to 9 in
this review petition, who are appellants
in MFA No.1336/2025 have made out
prima facie case so as to grant order of
temporary injunction?
(iii) Whether, under the facts and
circumstances involved in the case, the
appellants in MFA No.1336/2025 have
made out balance of convenience so as
to grant order of temporary injunction?
(iv) Whether, under the facts and
circumstances involved in the case, if
the order of temporary injunction is not
granted then the appellants in MFA
No.1336/2025 would suffer any injury or
loss?
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22. The Hon'ble Supreme Court in the case of
BOARD OF CONTROL FOR CRICKET IN INDIA AND
ANOTHER v. NETAJI CRICKET CLUB AND OTHERS2
has laid down the principle of law regarding scope of
review under Order 47 Rule 1 of CPC, which reads as
under:
"88. We are, furthermore, of the opinion that the
jurisdiction of the High Court in entertaining a review
application cannot be said to be ex facie bad in law.
Section 114 of the Code empowers a court to review
its order if the conditions precedents laid down therein
are satisfied. The substantive provision of law does not
prescribe any limitation on the power of the court
except those which are expressly provided in Section
114 of the Code in terms whereof it is empowered to
make such order as it thinks fit.
89. Order 47 Rule 1 of the Code provides for
filing an application for review. Such an application for
review would be maintainable not only upon discovery
of a new and important piece of evidence or when
there exists an error apparent on the face of the
record but also if the same is necessitated on account
of some mistake or for any other sufficient reason.
90. Thus, a mistake on the part of the court
which would include a mistake in the nature of the
undertaking may also call for a review of the order. An
application for review would also be maintainable if
2
(2005) 4 SCC 741
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there exists sufficient reason therefor. What would
constitute sufficient reason would depend on the facts
and circumstances of the case. The words 'sufficient
reason' in Order 47 Rule 1 of the Code are wide
enough to include a misconception of fact or law by a
court or even an Advocate. An application for review
may be necessitated by way of invoking the doctrine
"actus curiae neminem gravabit".
91. It is true that in Moran Mar Basselios
Catholicos Vs. The Most Rev. Mar Poulose Athanasius,
this Court made observations as regard limitations in
the application of review of its order stating: (SCR
p.529)
"Before going into the merits of the case
it is as well to bear in mind the scope of the
application for review which has given rise to
the present appeal. It is needless to
emphasise that the scope of an application for
review is much more restricted than that of an
appeal. Under the provisions in the
Travancore Code of Civil Procedure which is
similar in terms to Order XLVII, Rule 1 of
our Code of Civil Procedure, 1908, the Court of
review has only a limited jurisdiction
circumscribed by the definitive limits fixed by
the language used therein. It may allow a
review on three specified grounds, namely (i)
discovery of new and important matter or
evidence which, after the exercise of due
diligence, was not within the applicant's
knowledge or could not be produced by him at
the time when the decree was passed, (ii)
mistake or error apparent on the face of the
record and (iii) for any other sufficient reason.
It has been held by the Judicial Committee
that the words 'any other sufficient reason'
must mean 'a reason sufficient on grounds, at
least analogous to those specified in the rule'."
but the said rule is not universal.
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92. Yet again in Lily Thomas (supra), this Court
has laid down the law in the following terms: (SCC pp.
247-48, para 52)
"52. The dictionary meaning of the word
"review" is "the act of looking, offer something
again with a view to correction or
improvement". It cannot be denied that the
review is the creation of a statute."
This Court in Patel Narshi Thakershi v.
Pradyumansinghji Arjunsinghji, held that the power of
review is not an inherent power. It must be conferred
by law either specifically or by necessary implication.
The review is also not an appeal in disguise. It cannot
be denied that justice is a virtue which transcends all
barriers and the rules or procedures or technicalities of
law cannot stand in the way of administration of
justice. Law has to bend before justice. If the Court
finds that the error pointed out in the review petition
was under a mistake and the earlier judgment would
not have been passed but for erroneous assumption
which in fact did not exist and its perpetration shall
result in miscarriage of justice nothing would preclude
the Court from rectifying the error."
(Emphasis supplied)
23. On the basis of principle of law laid down, as
above stated, the instant review petition is taken up for
consideration on the materials produced by both sides,
which were already produced in MFA No.1336/2025.
24. The learned counsel for the review petitioners
submitted that defendant Nos.12, 13 and 15 in
O.S.No.1168/2004 and appellants in MFA No.1336/2025
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have filed this review petition praying to review the order
dated 11.08.2025 on the ground that Balappa Reddy had
consecutively failed in his attempt to get declaration of his
exclusive ownership over the suit property, but this Court
by the impugned order has granted an order of temporary
injunction by making observation that the appellants, who
are respondent Nos.1 to 9 have proved prima facie case
that they are the owners and balance of convenience lies
with them and thus granted an order of temporary
injunction, is nothing but an error apparent on the face of
the record.
25. Learned counsel for the review petitioners has
taken the Court to various documents to show that
Balappa Reddy had filed the suit in O.S.No.1167/1982 for
declaration against Narayanappa based on the Will, which
is dismissed for default. Against which, Miscellaneous
No.490/1985 for restoration was filed, which is also
dismissed. Again Balappa Reddy filed O.S.No.590/1988
for declaration to declare that he is the owner of suit
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property based on the Will. After contest, the said suit
was dismissed on 04.04.2000. Against which, RFA
No.509/2000 is filed, which is also dismissed on
03.09.2004. Against which, R.P.No.39/2005 is filed and in
this review petition it is categorically held that in suit
O.S.No.590/1988 dated 04.04.2000 and in RFA
No.509/2000 dated 03.09.2004 the Will is not proved, is
sound and proper. Therefore, when Balappa Reddy had
repeatedly failed in his claim to establish that he is the
exclusive owner but this Court in the above said MFA had
formed an opinion that the appellant Nos.1 to 9 have
made out prima facie case, is nothing but error apparent
on the face of the record.
26. The suit is filed for partition and for separate
possession. It is relevant to mention here the genealogy
as shown by the plaintiffs in O.S.No.1168/2004 and in
R.A.No.98/2020.
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Peddanna Reddy
Thippamma Narayanappa Lakshmi Bai Gouramma Balappa Reddy
27. Thippamma has filed the suit for partition and
separate possession against the legal heirs of
Narayanappa and the legal heirs of Balappa Reddy for
claiming 1/3rd share, but said suit is dismissed. Against
which, R.A.No.98/2020 is filed by the legal heirs of
Balappa Reddy, which is pending for consideration. It is
worthwhile to refer the pleadings taken by Balappa Reddy
in his written statement in the said suit that the legal heirs
of Balappa Reddy had taken contention that Peddanna had
executed a Will in favour of Balappa Reddy. But the
record shows that Balappa Reddy filed a suit in
O.S.No.590/1988 claiming ownership over the property
based on the Will and after contesting the suit, the said
suit O.S.No.590/1988 is dismissed on 04.04.2000.
Against which, RFA No.509/2000 is filed which is also
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dismissed. Against which, the review petition is filed in
R.P.No.39/2005. The findings on the Balappa Reddy that
he has failed to prove the execution of Will in his favour is
sound and proper, but in review petition this Court has
given liberty to claim his share through Peddanna in a suit
filed for partition, which is pending in R.A.No.98/2020.
Thippamma has accepted the decree of dismissal of the
suit, but Balappa Reddy against his own claim of seeking
exclusive ownership of the property is claiming share now
through Peddanna Reddy, which is not dealt with by this
Court in MFA No.1336/2025.
28. The records produced by both sides show that
Peddanna purchased land in Sy.No.12 (old) new No.85 to
the extent of 8 acres 18 guntas in the year 1952. It was
partition between Narayanappa and Balappa Reddy.
Narayanappa is claiming exclusive ownership right towards
north and Balappa Reddy has taken southern half portion
to the extent of 4 acre 9 guntas towards southern side.
Balappa Reddy had executed registered released deed
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dated 28.06.1973 in favour of Peddanna and Narayanappa
by receiving other properties. Peddanna died in the year
1978. Narayanappa continued to hold possession and
enjoy exclusively the suit property exercising his right of
ownership. Balappa Reddy had approached Revenue
Authorities stating that by Will dated 11.07.1974 having
executed by Peddanna claiming ownership over northern
portion of 4 acre 9 guntas and the Revenue Authorities
have mutated Balappa Reddy's name in the revenue
records to the extent of 4 acre 9 guntas. Thereafter,
Narayanappa filed the appeal under Section 136(2) of the
Karnataka Land Revenue Act, 1964, before the Assistant
Commissioner and the Assistant Commissioner has set
aside the said mutation and entries and remanded the
matter to the Tahsildar for fresh consideration vide order
dated 21.10.1982. Thereafter, the Tahsildar mutated the
entries in the RTC in the name of Narayanappa.
Narayanappa died leaving behind his wife and children,
who are defendant Nos.1(a) to 1(f) and these legal heirs
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of Narayanappa have become exclusive owners of the
property and later on sold the land measuring 4 acre 9
guntas in Sy.No.85 in favour of review petitioners, who are
defendant Nos.4 and 5 in the suit O.S.No.1168/2004
through registered sale deeds dated 24.11.2004 and put
them in possession. Thus, the review petitioners have
become owners of the land to the extent of 4 acre 09
guntas.
29. The suit O.S.No.1168/2004 is instituted on
03.12.2004. Upon considering the above documents the
property sold out by the legal heirs of Narayanappa in
favor of review petitioners is much before filing the suit
O.S.No.1168/2004. Therefore lis pendens of Section 52 of
the Transfer of Property Act, 1882, is not applicable.
30. The Hon'ble Supreme Court in the case of
ELUMALAI ALIAS VENKATESAN AND ANR. v.
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M.KAMALA AND ORS. AND ETC.3 has observed as
under:
"11. What however remains to be seen is
whether conduct of Shri Chandran in executing the
release deed and what is even more important
receiving consideration for executing the Release
Deed would result in the creation of estoppel. Having
regard to the equity of the matter, in short, whether
it is a case where the doctrine of equitable estoppel
would have prevented Shri Chandran from staking a
claim if he had survived his father. What is the effect
of the existence of estoppel as against Shri Chandran
if such estoppel is made out, as far as the claim of
the appellants is concerned? The further question
would be what is the effect of Section 8 of Hindu
Minority and Guardianship Act."
"21. In the facts of this case, the case of the
appellants may be noted. It is their case, that Shri
Chandran, their father, himself did not have any
right in the plaint schedule property. This is for the
reason that being the separate property of Shri
Sengalani Chettair, Shri Chandran did not have any
right by birth. He himself had only, what is described
a spec successionis within the meaning of Section
6(a) of the Transfer of Property Act. It is not even
the case of the appellants that they had any
independent right in the plaint schedule property
either at the time of their birth or at the time when
their father died or even when their father Shri
Sengalani Chettair died in 1988. The right, which
they claim, at the earliest point, can arise only by
treating the property as the separate property of
Shri Sengalani Chettair on his death within the
meaning of Section 8 of the Hindu Succession Act.
Therefore, we are unable to discard the deed of
release executed by their father Shri Chandran in the
year 1975 as a covenant within the meaning
of Section 8 of the '1956 Act.'"
3
AIR 2023 SC 659
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"23. It will be noticed that the father of the
appellants, by his conduct, being estopped, as found
by us, is the fountainhead or the source of the title
declared in Section 8(a) of the Hindu Succession Act.
It is, in other words, only based on the relationship
between Shri Chandran and the appellants, that the
right under Section 8(a) of the Hindu Succession Act,
purports to vest the right in the appellants. We
would think, therefore, that appellants would also
not be in a position to claim immunity from the
operation of the Principle of Estoppel on the basis
of Section 8(a) of the Hindu Succession Act. If the
principle in Gulam Abbas (AIR 1973 SC 554) (supra)
applies, then, despite the fact that what was
purported to be released by Shri Chandran, was a
mere spec successonis or expectation his conduct in
transferring/releasing his rights for valuable
consideration, would give rise to an estoppel. The
effect of the estoppel cannot be warded off by
persons claiming through the person whose conduct
has generated the estoppel. We also find no merit at
all in the attempt at drawing a distinction based on
religion. The principle of estoppel applies without
such distinction."
31. The facts in the above stated case are that one
Sengalani Chettiar married to Rukmini and also
solemnized second marriage with Kuppammal. Chandran
is the son of Sengalani Chettiar and Rukmini. The
properties were self acquired of Sengalani Chettiar.
Chandran had executed release deed dated 12.11.1975
relinquishing his rights of share in favour of Sengalani
Chettiar by receiving other valuable properties. The
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children of Chandran claimed share, which is negatived on
the reason that Chandran had already relinquished his
right of share over the suit schedule properties by
receiving other valuable properties. As such, it would
create estoppel against Chandran and it is held that
children of Chandran are not entitled to any share. Thus,
the appeal filed was dismissed.
32. In the instant case also, Balappa Reddy had
executed relinquishment deed by receiving other
properties. Thereafter, Balappa Reddy has started
claiming share once again over the suit schedule
properties. Therefore, the above said ruling is applicable
in the present case making Balappa Reddy and his legal
heirs not entitled to claim right over the suit properties as
they are estopped.
33. Before that Balappa Reddy as discussed above
failed in his attempt to get exclusive ownership and some
facts are necessary to be considered based on the records.
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Balappa Reddy filed the suit in O.S.No.1167/1982 for
declaration against Narayanappa based on the Will dated
11.07.1974, which is dismissed for default. Against which,
the Miscellaneous No.490/1985 is filed for restoration of
the suit, the same was also dismissed. Then once again
the said Balappa Reddy filed O.S.No.590/1988 for
declaration to declare that he is owner of the suit property
based on the Will. After contest, O.S.No.509/2000 is also
dismissed on 03.09.2004. Against which RFA
No.509/2000 filed by Balappa Reddy is also dismissed.
Balappa Reddy had filed R.P.No.39/2005 praying to review
the order passed in RFA No.509/2000 and this Court in
R.P.No.39/2005 has held that the finding that the Will is
not proved is sound and proper. But this Court in
R.P.No.39/2005 has given liberty to claim his share
through Peddanna's share in O.S.No.1168/2004, which is
pending in R.A.No.98/2020. It is pertinent to mention
here that Thippamma, Lakshmi Bai and Gurramma have
accepted the decree in O.S.No.1168/2004. Also Balappa
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Reddy has failed in his attempt to claim exclusive
ownership over the suit property based on the Will.
Therefore, it is argument of the counsel for the review
petitioners that the conduct of the Balappa Reddy is
approbate and reprobate, at one hand he was claiming
exclusive ownership through the Will and his legal heirs
are claiming share in the suit property. Therefore, upon
considering all these aspects based on the records
produced by both sides the appellants in MFA
No.1336/2025 have not made out prima facie case so as
to claim the entire extent of land at the most they can
claim shares of Peddanna.
34. Also the learned counsel for the review
petitioners produced registered relinquishment deed which
prima facie proves that Balappa Reddy had executed
relinquishment deed in favour of Peddanna and
Narayanappa by receiving other properties. Therefore,
after the death of Peddanna, Peddanna's share would be
devolved into Balappa Reddy. To this extent only Balappa
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Reddy can work out his share as per liberty granted by
this Court in R.P.No.39/2005. Therefore, grant of
temporary injunction as observed in page Nos.7 and 8 of
MFA No.1136/2025 is found to be error apparent on the
face of the record.
35. This Court in the above said MFA No.1336/2025
has held that the possession stands threatened by third
party purchasers without clear title, who claim under
individuals who had themselves divested their rights
decades ago. But the records show that the legal heirs of
Narayanappa had sold 4 acre 09 guntas of land through
registered sale deed in favour of defendant Nos.4 and 5.
Narayanappa during his lifetime has sold his share i.e.,
southern portion of 4 acre 09 guntas to one Raghu
through registered sale deed to defendant No.3. As
observed above, even doctrine of lis pendens as per
Section 52 of the Transfer of Property Act, 1882, is also
not attracted.
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36. When above chronological events on the
admitted materials by both sides are revealed, this Court
in the order dated 11.08.2025 has observed at paragraph
7 that Balappa Reddy had become owner of the property
through registered Will dated 11.07.1974 to the extent of
4 acres 09 guntas, is error apparent on the face of the
record. As discussed above, in all these successive legal
proceedings Balappa Reddy has not succeeded in proving
his exclusive ownership over the suit property to the
extent of 8 acre 18 guntas through the Will is not proved.
Admittedly there are partition between Narayanappa and
Balappa Reddy and Narayanappa has become owner of the
land to the extent of 4 acre 09 guntas, which is sold out to
defendant Nos.3 and 4 by the legal heirs of Narayanappa.
For remaining half portion towards southern side what
Balappa Reddy had obtained the said share had been
bequeathed through relinquishment deed dated
28.06.1973 in favour of Narayanappa and Peddanna.
Thippamma has filed suit O.S.No.1168/2004 even after
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selling the land by legal heirs of Narayanappa to defendant
No.3. Therefore, whatever alienation made by legal heirs
of Narayanappa does not attract Section 52 of the Transfer
of Property Act, 1882. Since their partition between
Peddanna and Narayanappa is prior to the appointed date
20.12.2004, therefore, whether the applicability of Section
6 of the Hindu Succession Act, 1956, regarding
entitlement of equal share to daughters is a question to be
considered in the appeal. So far as Thippamma, Lakshmi
Bai and Gurramma are concerned, the judgment and
decree in O.S.No.1168/2004 has attained finality as they
have not challenged the said judgment and decree. Only
the legal heirs of Balappa Reddy have preferred
R.A.No.98.2020, which is pending for consideration. The
regular appeal in R.A.No.98/2020 filed by the legal heirs of
Balappa Reddy is only pertaining to the questioning the
findings on Issue No.2, that is regarding the Will, but not
raised ground regarding claiming share on the suit land.
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37. It is the written statement filed by the
defendant No.2 in O.S.No.1168/2004 that defendant No.2
is in possession and enjoyment of 4 acre 9 guntas only by
virtue of registered Will stated to have been executed by
Peddanna. But in the legal proceedings as above
discussed execution of Will is not proved, is held correct,
sound and proper by this Court in RFA No.509/2000 and
subsequently, also in R.P.No.39/2005. Therefore,
R.A.No.98/2020 is only pertaining to the challenging Issue
No.2 i.e., on question of considering the Will since in the
said suit the Issue No.2 is held negative against the
defendant No.2 that he has failed to prove that he is in
possession over the land on the basis of the Will dated
11.07.1974. Therefore, from the records it is shown that
defendant No.2 during his lifetime and his legal heirs are
not in possession of the property.
38. The prayer made by the legal heirs of defendant
No.2 in R.A.No.98/2020 is only in respect of Issue No.2 is
concerned, which is regarding proof of Will. Therefore, the
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defendant No.2 has not claimed share in the property.
However, this Court in R.P.No.39/2005 has given liberty to
claim his share through his father Peddanna. Therefore,
according to the defendant No.2 when his relinquished
share of 4 acre 09 guntas in favour of his father Peddanna
and after death of Peddanna all the legal heirs of
Peddanna at the most can maintain their claim of partition.
Peddanna died in the year 1978. Therefore, the daughters
namely, Thippamma, Lakshmi Bai and Gurramma are not
to be considered as coparceners. Therefore, notionally the
partition effected between Peddanna, Narayanappa and
Balappa Reddy amounts to 1/3rd share in 4 acre 9 guntas.
Further Peddanna's 1/3rd share is once again to be divided
between three daughters and two sons that becomes
1/15th share each to the children of Peddanna. Therefore,
at the most, probably Peddanna's share may be given
above extent.
39. When this being the fact, prima facie it is shown
that the appellants in R.A.No.98/2020 are not in
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possession over the suit property. Therefore, there is no
prima facie case and balance of convenience is made out
by the legal heirs of Balappa Reddy so as to make claim
the entire extent of suit property. Therefore, the
appellants in MFA No.1336/2025 are not entitled to the
discretionary relief of order of temporary injunction.
Hence, the order dated 11.08.2025 passed by this Court in
MFA No.1336/2025 requires to be reviewed and recalled.
When prima facie case is not made out and the balance of
convenience does not lie so as to grant an order of
temporary injunction to the entire extent of land, the trial
court is correct in dismissing the application filed for
temporary injunction.
40. However, it is submitted that the defendant
Nos.3 to 5 have purchased the property to the half extent
in the year 1981 and if any construction to be made on the
suit schedule land that is subject to result in
R.A.No.98/2020. It is submitted that there is a tomb of
Gurramma on the suit schedule land. If any construction
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to be made on the suit land is subject to result in the
appeal R.A.No.98/2020, then considering the feelings of
the parties in the suit regarding tomb of Gurramma the
same shall be preserved exclusively for performing pooja
till decision is taken in R.A.No.98/2020. Though legal
heirs of Thippamma, Lakshmi Bai and Gurramma have not
challenged the judgment and decree in O.S.No.1168/2004,
but is challenged by the legal heirs of Balappa Reddy
though on the other ground of challenging the pending
Issue No.2 regarding the Will, but the whole judgment and
the decree in O.S.No.1168/2004 is under scrutiny of the
appellate court in R.A.No.98/2020. Therefore, suitable
decision is yet to be taken by the appellate court as per
law.
41. This Court has perused the rulings relied on by
the counsel for the respondents. The above said rulings
are on the governing principles pertaining to the powers of
appellate court and scope of review and granting
discretionary relief of order of temporary injunction. This
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Court has considered the above said rulings and applied
the same while considering this review petition.
42. The Hon'ble Supreme Court in the case of
MANDALI RANGANNA & ORS. ETC VS T.
RAMACHANDRA & ORS4 has observed as follows:
"21. While considering an application for grant
of injunction, the court will not only take into
consideration the basic elements in relation thereto,
viz., existence of a prima facie case, balance of
convenience and irreparable injury, it must also take
into consideration the conduct of the parties.
22. Grant of injunction is an equitable relief. A
person who had kept quiet for a long time and
allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an
order of injunction. The court will not interfere only
because the property is a very valuable one. We are
not however, oblivious of the fact that grant or
refusal of injunction has serious consequence
depending upon the nature thereof. The courts
dealing with such matters must make all endeavours
to protect the interest of the parties. For the said
purpose, application of mind on the part of the
courts is imperative. Contentions raised by the
parties must be determined objectively.
23. This Court in M. Gurudas v. Rasaranjan
noticed (SCC P. 374, para 19)
"19. A finding on "prima facie case" would
be a finding of fact. However, while arriving
at such a finding of fact, the court not only
must arrive at a conclusion that a case for
trial has been made out but also other
4
(2008) 11 SCC 1
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factors requisite for grant of injunction exist.
There may be a debate as has been sought
to be raised by Dr. Rajeev Dhavan that the
decision of the House of Lords in American
Cyanamid Co. v. Ethicon Ltd. would have no
application in a case of this nature as was
opined by this Court in Colgate Palmolive
(India) Ltd. v. Hindustan Lever Ltd. and S.M.
Dyechem Ltd. v. Cadbury (India) Ltd. but we
are not persuaded to delve thereinto."
Therein, however, the question in regard to
valid adoption of a daughter was in issue. This Court
held that Nirmala was not a validly adopted
daughter. This Court wondered: (M. Gurudas case,
SCC p. 379 para 34)
"34. The properties may be valuable but
would it be proper to issue an order of
injunction restraining the appellants herein
from dealing with the properties in any
manner whatsoever is the core question.
They have not been able to enjoy the fruits
of the development agreements. The
properties have not been sold for a long
time. The commercial property has not been
put to any use. The condition of the
properties remaining wholly unused could
deteriorate. These issues are relevant. The
courts below did not pose these questions
unto themselves and, thus, misdirected
themselves in law."
24. Emphasis was also laid on the conduct of
the parties while granting an order of injunction.
25. In Seema Arshad Zaheer v. Municipal
Corpn. Of Greater Mumbai this Court held: (SCC p.
294, para 30)
"30. The discretion of the court is exercised
to grant a temporary injunction only when
the following requirements are made out by
the plaintiff: (i) existence of a prima facie
case as pleaded, necessitating protection of
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the plaintiff's rights by issue of a temporary
injunction; (ii) when the need for protection
of the plaintiff's rights is compared with or
weighed against the need for protection of
the defendant's rights or likely infringement
of the defendant's rights, the balance of
convenience tilting in favour of the plaintiff;
and (iii) clear possibility of irreparable injury
being caused to the plaintiff if the temporary
injunction is not granted. In addition,
temporary injunction being an equitable
relief, the discretion to grant such relief will
be exercised only when the plaintiff's
conduct is free from blame and he
approaches the court with clean hands."
[See also Transmission Corpn. of A.P. Ltd. v. Lanco
Kondapalli Power (P) Ltd.
26. Rightly or wrongly constructions have
come up. They cannot be directed to be demolished,
at least at this stage. Respondent No.7 is said to
have spent three crores of rupees. If that be so, in
our opinion, it would not be proper to stop further
constructions.
27. We, therefore, are of the opinion that the
interest of justice would be subserved if while
allowing the respondents to carry out constructions
of the buildings, the same is made subject to the
ultimate decision of the suit. The Trial Court is
requested to hear out and dispose of the suit as
early as possible. If any third party interest is
created upon completion of the constructions, the
deeds in question shall clearly stipulate that the
matter is sub judice and all sales shall be subject to
the ultimate decision of the suit. All parties must
cooperate in the early hearing and disposal of the
suit. Respondents must also furnish sufficient
security before the learned Trial Judge within four
weeks from the date which, for the time being, is
assessed at Rupees One Crore."
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43. When suit for partition is filed the rights of co-
sharers also to be protected in case a project is being
under construction, in such an event the rights of co-
sharers is to be protected without stopping construction as
huge amount is invested considering peculiar facts and
circumstances involved in the case. As above discussed,
as per liberty reserved by this Court in R.P.No.39/2005 to
Balappa Reddy and likewise, the other co-sharers namely
Thippamma, Lakshmi Bai and Gurramma's share also to be
protected. Following the spirit of the principle of law laid
down by the Hon'ble Supreme Court in MANDALI
RANGANNA's case (supra) it is just necessary to direct
the review petitioners to reserve 1/15th share in the suit
schedule property without making alienation in case
review petitioners are making construction on the suit
schedule land and reserving 1/15th share shall be subject
to result in R.A.No.98/2020. Accordingly, I answer Point
No.(i) in the affirmative and Point Nos.(ii) to (iv) in the
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negative. Thus, the order passed by this Court in the
appeal is liable to be reviewed and recalled.
44. Hence, I proceed to pass the following:
ORDER
(i) The review petition is allowed.
(ii) The impugned order dated 11.08.2025
passed by this Court in MFA
No.1336/2025 is reviewed and recalled.
(iii) The order passed by the trial court on
interlocutory application filed under Order
XXXIX Rules 1 and 2 of CPC in
R.A.No.98/2020, is affirmed.
(iv) The review petitioners are directed to
reserve 1/15th share in the suit schedule
property without making alienation of
1/15th share till disposal of the appeal and
this reservation of 1/15th share shall be
subject to result in R.A.No.98/2020.
(v) Whatever construction to be made by the
review petitioners is subject to result in
R.A.No.98/2020.
(vi) Whatever observations made above are
only based on the documents made
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available to this Court in the appeal and
the trial court shall not construe the above
observations as discussion on the merits
of the case. Only on the basis of the
prima facie documents made available the
above observations are made.
(vii) The first appellate court shall decide the
appeal independently without being
influenced by the above said order in
accordance with law.
(viii) No costs.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
DR
List No.: 19 Sl No.: 1
