The Court emphasized the distinction between prima facie case and prima facie title, and upheld the first Appellate Court's decision to restrain the defendants from alienating the property till the disposal of the suit.

JUDGMENT

1. The petitioners herein are the defendants in O.S.No.11/2016, in the Court of learned Senior Civil Judge and J.M.F.C., Sakaleshpur (hereinafter for brevity referred to as 'trial Court'), which suit was filed by the present respondents as plaintiffs for the relief of declaration to declare that the plaintiffs are the absolute owners of the suit schedule properties and also for declaration to the effect that the mutation entries said to have effected by the Tahsildar with respect to the suit schedule properties in favour of the defendants are null and void. Consequently, the relief of permanent injunction has also been sought.

2. The plaintiffs also filed an interlocutory application IA.No.2 under Order XXXIX Rule 1 and 2 read with Sec. 151 of Code of Civil Procedure, 1908 (hereinafter for brevity referred to as 'CPC'). They could able to get an ex parte interim order of temporary injunction in the beginning, however, after the appearance of the defendants, who contested the matter, the trial Court after hearing both side on the said IA.No.2, filed under XXXIX Rule 1 and 2 read with Sec. 151 of CPC, by its order dtd. 25/6/2016, rejected the said IA.No.2 and the ad interim temporary injunction granted earlier was also vacated under the said order dtd. 25/6/2016.

3. Aggrieved by the same, the plaintiffs preferred an appeal under Order XLIII Rule 1 of CPC in M.A.No.3/2016, in the Court of learned V Addl.District and Sessions Judge, Hassan (hereinafter for brevity referred to as 'first Appellate Court'), which after hearing both side, by its order dtd. 8/8/2016, allowed the Miscellaneous Appeal and while setting aside the order dtd. 25/6/2016, passed by the trial Court in O.S.No.11/2016, it restrained the respondents/defendants from alienating the suit schedule property till the disposal of the suit before the trial Court. Challenging the said order of the first Appellate Court, the defendants in the trial Court have preferred this writ petition.

4. The learned counsel for the petitioners in his argument vehemently submitted that the trial Court has passed a considerate order after analysing the materials placed before it and had noticed that the defendants have placed the documents, including revenue documents, to show that they are in possession of the property and that they are entitled for their share in the property, as such, with the said observation, it had rightly dismissed IA.No.2 filed by the plaintiffs under Order XXXIX Rule 1 and 2 read with Sec. 151 of CPC. However, the first Appellate Court without appreciating the said facts, has by giving untenable reasons, set aside the order of the trial Court and granted an interim order in favour of the plaintiffs which was not warranted in the circumstances of the case.

5. Learned counsel for the respondents in his argument submitted that though the trial Court noticed the fact that the very suit of the plaintiffs was based upon the Will dtd. 18/1/2013, executed by one Sri T.S.Dayanand, in favour of the plaintiffs, bequeathing the suit schedule property in favour of the plaintiffs, however, the trial Court ignoring the said Will and merely being carried away by an averment that the Will was concocted, has proceeded to indirectly appreciate the merits of the suit of the plaintiffs, which resulted in vacating of the stay granted earlier, as well rejection of IA.No.2 filed under Order XXXIX Rule 1 and 2 read with Sec. 151 of CPC. However, the first Appellate Court has rectified the same by making out a difference between prima facie case and prima facie title, as such, the said order passed by the first Appellate Court does not deserve to be altered or interfered in any manner.

6. It is not in dispute that one Sri T.S.Dayanand, the alleged testator and one Sri T.S.Bhanuprakash and defendant No.4 Smt.Poornima are the children of late Sri T.D.Somashekar. Admittedly, both T.S.Dayanand and T.S.Bhanuprakash, who are the brothers, are dead much prior to the institution of the s