This appeal is filed by the plaintiff challenging the

order for declining to grant the relief of temporary

injunction in respect of item Nos.2 and 3 of schedule ‘A’

property and also item Nos.7 to 15 of the schedule ‘B’

property by modifying the earlier order of injunction

granted in respect of all the items and granted the relief

only in respect of the item No.1 of schedule ‘A’ property

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and also item Nos.1 to 3, 5 and 6 of schedule ‘B’ property

making as absolute.

2. Heard the learned counsel appearing for the

respective parties.

3.

The factual matrix of the case of the plaintiff in

O.S.No.3526/2021 that the plaintiff is seeking the relief of

partition of 1/7^th share in respect of both ‘A’ and ‘B’

schedule properties contending that the suit schedule

properties are belonged to the family of the plaintiff and

defendants No.1 to 6 and there was a partition between

their father and his brother in terms of Annexure-D and

the father had got the property in the said partition as

ancestral properties. It is the contention of the plaintiff

that father was the kartha of the Hindu coparcenary and

he is the propositor of the joint family property during his

lifetime and he died in the month of February 2016 leaving

behind the plaintiff and defendant Nos.1 to 6 and after his

death,

defendant

No.2

continued

to

be

the

kartha/manager of the said constituted Hindu joint family.

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It is also the contention of the plaintiff before the Trial

Court that all these suit schedule properties are acquired

out of the income of the joint family and all were living

together and no separation from the members of the joint

family and properties are also purchased in the name of

the family members including the mother and also elder

sister, elder brother of the plaintiff. The defendant No.2 is

acting as manager/kartha of the family of the plaintiff after

the death of the father, there was no any partition in the

family and the plaintiff is also having no job and no source

of income from anywhere and the plaintiff has requested

defendant No.2 to pay some amount out of the income for

his livelihood but defendant No.2 denied to pay the

amount colluding with other defendants. It is also

contended that recently, the plaintiff learnt that defendant

No.2 illegally sold one of the joint family property in

Sy.No.40 measuring 4 acres 25 guntas in Udayagiri

village,

Kasaba

hobli,

Devanahalli

taluk

to

one

Nintyananda Shetty who is defendant No.7 vide sale deed

dated 01.01.2020 and hence, he had comes to the

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conclusion that defendants are making all efforts to sell

the property belongs to the family and cause of action

arisen when the defendants No.1 to 6 refused to partition

the property. Hence, filed the suit for the relief of

partition.

4.

The plaintiff inter alia has sought for an order of

temporary injunction restraining the defendants from

alienating the suit schedule property reiterating the

averments made in the plaint and also contended that he

has made out a prima facie case and balance of

convenience and the Trial Court also granted an exparte

order of temporary injunction restraining the defendants

from alienating the suit schedule properties. After filing of

the suit, the Trial Court had issued the summons against

the defendants

and

defendant

No.2

also

filed

an

application under Order XXXIX Rule 4 of CPC for vacating

the exparte temporary injunction granted order along with

the written statement and adopted the written statement

as objection to I.A.No.1 vide memo dated 26.10.2021 and

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contended that the plaintiff has filed the suit for seeking

the relief of partition and separate possession in respect of

the suit schedule properties and other consequential relief.

But the narration of mode of acquisition explained by

defendant No.2 is not correct. Item No.1 of the schedule

‘A’ property are the self acquired property of late

Lakshmana Rao and as per Section 8, all the legal heirs

are entitled for the share and ins