SRI.CHANDRAIAH, vs SRI.CHANNEGOWDA @ KARIYAPPA,
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC:60478
WP No. 7181 of 2026
CNR: KAHC010154682026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 30 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
WRIT PETITION NO. 7181 OF 2026 (GM-CPC)
BETWEEN:
1. SRI.CHANDRAIAH,
SON OF LATE CHANNIGANNA @ MALLAIAH,
AGED ABOUT 67 YEARS,
RESIDING AT BAGENHALLI VILLAGE,
KOTHAGERE HOBLI, KUNIGAL TALUK,
TUMAKURU DISTRICT,
PINCODE - 572 130
2. SRI. MANJUNATHA C.,
SON OF CHANDRAIAH,
AGED ABOUT 39 YEARS,
RESIDING AT BAGENHALLI VILLAGE,
KOTHAGERE HOBLI, KUNIGAL TALUK,
TUMAKURU DISTRICT - 572 130
…PETITIONERS
(BY SRI. PUNITH C., ADVOCATE)
Digitally
signed by
VINUTHA B S
Location:
High Court of
Karnataka
AND:
SRI.CHANNEGOWDA @ KARIYAPPA,
SON OF LATE CHIKKAIAH,
AGED ABOUT 83 YEARS,
RESIDING AT BAGENHALLI VILLAGE,
KOTHAGERE HOBLI, KUNIGAL TALUK,
TUMAKURU DISTRICT - 572 130
…RESPONDENT
(BY SRI. MUNIRAJA M., ADVOCATE)
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HC-KAR
NC: 2026:KHC:60478
WP No. 7181 of 2026
CNR: KAHC010154682026
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO-SET ASIDE THE
IMPUGNED ORDER DATED 01.04.2025 PASSED ON I.A.NO.1
UNDER ORDER 39 RULE 1 AND 2 OF THE CPC IN
O.S.NO.481/2022 BY THE LEARNED PRL.CIVIL JUDGE AND
JMFC KUNIGAL AS PER ANNX-F AND THE IMPUGNED ORDER
DATED 29.10.2025 PASSED IN MA NO. 32/2025 BY THE
LEARNED ADDL. SENIOR CIVIL JUDGE AND JMFC KUNIGAL AS
PER ANNX-H.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE K. V. ARAVIND
ORAL ORDER
This petition impugns the order dated 01.04.2025 passed
on I.A. No. 1 under Order XXXIX Rules 1 and 2 of the Code of
Civil Procedure in O.S. No. 481/2022, and the order dated
29.10.2025 passed in M.A. No. 32/2025, whereby the Trial
Court restrained the petitioners from alienating or creating any
encumbrance over the suit schedule property during the
pendency of the suit.
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HC-KAR
NC: 2026:KHC:60478
WP No. 7181 of 2026
CNR: KAHC010154682026
2. Learned counsel appearing for the petitioners
submits that the suit schedule property has already been
partitioned under the registered partition deed dated
02.06.1958. It is contended that the suit schedule property fell
to the share of Chikkaiah, the father of the plaintiff, whereas
Channiganna was allotted the 'B' schedule property under the
said partition deed.
2.1 It is further submitted that the suit was instituted
by misrepresenting the facts before the Trial Court and
suppressing the existence of the registered partition deed. The
Trial Court, without examining the said partition deed,
proceeded on the basis of the alleged revenue entries indicating
that the suit schedule property stood in the joint names of the
parties.
2.2 Learned counsel further submits that the partition
deed has been acted upon by the parties and that one of the
parties has executed a sale deed in favour of the plaintiff's son
on the basis of the partition deed dated 02.06.1958. It is
contended that the execution of the registered partition deed
was well within the knowledge of the plaintiff and that the
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HC-KAR
NC: 2026:KHC:60478
WP No. 7181 of 2026
CNR: KAHC010154682026
averments made in the plaint are contrary to the said deed and
amount to misrepresentation.
3. Per contra, learned counsel appearing for the
respondent submits that, although a partition was effected on
02.06.1958, the suit schedule property was retained as joint
family property and, accordingly, the revenue entries continued
to reflect the property as jointly held. It is contended that, in
view of the revenue entries, it is for the Trial Court to
adjudicate whether the suit schedule property is available for
partition.
3.1 Learned counsel further submits that the revenue
entries carry a statutory presumption and make out a prima
facie case for granting a temporary injunction restraining
alienation of the suit schedule property or the creation of third-
party rights therein. It is contended that the creation of third-
party rights ought to be avoided during the pendency of the
suit, as otherwise it would lead to multiplicity of proceedings.
4. Consider the submissions made by the learned
counsel for the parties and perused the documents on record.
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HC-KAR
NC: 2026:KHC:60478
WP No. 7181 of 2026
CNR: KAHC010154682026
5. The suit is founded on the pleadings that the suit
schedule property was excluded from the oral partition,
retained as joint family property, and continued to be used as
such. Although the Courts below examined the registered
partition deed dated 02.06.1958, they proceeded to record a
finding regarding the identity of the suit schedule property with
reference to the said partition deed, a matter that was neither
pleaded nor relied upon by the plaintiff.
5.1 Both the Courts, while passing the impugned
orders, have thus travelled beyond the pleadings of the parties.
The issue that arises for consideration is whether such a course
was justified.
5.2 A prima facie perusal of the registered partition
deed dated 02.06.1958 indicates that the suit schedule
property was allotted to Channiganna, the father of the
petitioners herein, and was described as 'B' schedule property
in the said partition deed. The partition has evidently been
acted upon, as the plaintiff's son purchased one of the items
allotted under the partition deed by way of a sale deed dated
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HC-KAR
NC: 2026:KHC:60478
WP No. 7181 of 2026
CNR: KAHC010154682026
22.01.2016. The said sale deed prima facie establishes that the
registered partition deed was acted upon by the parties.
5.3 The plaint averments suspiciously fail to refer to the
registered partition deed, despite the parties having acted upon
it. The plaint not only suffers from suppression of a material
fact but also contains misleading averments. Both the Courts
failed to appreciate this aspect and proceeded to pass the
impugned orders based on the identification of the suit
schedule property, which was never an issue in the pleadings.
5.4 This Court is of the view that the impugned orders
are without basis and contrary to the material on record,
having been passed under the influence of misrepresented
facts. In the circumstances, both the impugned orders are
liable to be set aside.
6. Accordingly, the following:
ORDER
allowed
i. Writ petition is .
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HC-KAR
NC: 2026:KHC:60478
WP No. 7181 of 2026
CNR: KAHC010154682026
ii. The impugned order dated 01.04.2025 passed
on I.A.No.1 under Order XXXIX Rule 1 and 2 of
CPC in O.S.No.481/2022 and order dated
29.10.2025 passed in M.A.No.32/2025 are
hereby set aside.
Sd/-
(K. V. ARAVIND)
JUDGE
NMS
List No.: 1 Sl No.: 7