IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5^TH DAY OF SEPTEMBER, 2022

BEFORE

THE HON9BLE MR. JUSTICE SREENIVAS HARISH KUMAR

MFA NO.667 OF 2022 (CPC)

BETWEEN:

1.

Sri Shadakshari C.L.

S/o Late C.C. Laxmanappa

Aged about 59 years

2.

Sri Prakasha C.S.

S/o Late Sri C.L. Shekarappa

Aged about 36 years

Appellants 1 and 2 are both

Agriculturists, R/at

Chatnahalli @ Post

Amruthapura Hobli

Tarikere Taluk.

3.

Sri Shivakumar C.S.

S/o Late Sri C.L. Shekarappa

Aged about 27 years

4.

Smt. Nirmala

W/o Late Sri C.L. Shekarappa

Aged about 47 years

Appellants 3 and 4 are both

Agriculturists,

R/o Duglapura @ Post

Kasaba Hobli,

Tarikere Taluk.

&Appellants

(By Sri A. Madhusudhana Rao, Advocate)

R

:: 2 ::

AND:

Sri Santhosha C.A.

S/o Sri C.L. Ananda

Aged about 32 years

Agriculturist and Employee at Toyota

Kirloskar Private Company

Bengaluru

Permanently R/at K. Chatnahalli

@ Post, Amruthapura Hobli

Tarikere Taluk

Represented by his

Power of Attorney Holder

Smt. Suma C.B.

W/o Sri C.L. Ananda

Aged about 47 years

R/at K. Chatnahalli

@ Post, Amruthapura Hobli

Tarikere Taluk.

&Respondent

(By Sri R. Vijay Kumar, Advocate for

Sri G. Lakshmeesh Rao, Advocate)

This MFA is filed under Order 43 rule 1(r) read

with section 151 of CPC against the order dated

13.12.2021 passed on I.A.No.II in R.A No.54/2021 on

the file of the Senior Civil Judge and Prl. JMFC,

Tarikere, allowing the I.A No.II filed under Order 39

rule 1 and 2 read with section 151 of CPC.

This MFA having been heard & reserved on

23.08.2022, coming on for pronouncement this day,

the Court pronounced the following:

:: 3 ::

JUDGMENT

This is an appeal filed under Order 43 Rule

1(r) of the Code of Civil Procedure. The events

that have led to this appeal are as follows:

2. Original Suit 246/2014 was instituted by

the respondent in the court of Additional Civil

Judge, Tarikere. It was a title suit based on a

registered will dated 19/10/2011 executed by C.C

Laxmanappa. In the suit, an order of temporary

injunction was in force till its disposal restraining

the appellant from interfering with respondent9s

possession of suit property. The appellant herein

challenged

the

order

of

grant

of

temporary

injunction by preferring an appeal and it was

dismissed. Then on conclusion of trial the suit

came to be dismissed. Therefore, the respondent

preferred an appeal under section 96 read with

Order 41 Rule 1 CPC to the court of Senior Civil

Judge, Tarikere. In the appeal respondent filed an

:: 4 ::

application for temporary injunction and since by

order dated 13/12/2021, the application came to

be allowed, the appellants have preferred this

appeal.

3. It is not necessary to deal with the factual

aspects since Sri Madhusudhana Rao for the

appellants

and

Sri

R

Vijay

Kumar

for

the

respondent raised legal issues while arguing. It

was the argument of Sri Madhusudhana Rao that

the learned Senior Civil Judge, while deciding the

application for temporary injunction should have

considered the evidence of the witnesses to arrive

at a conclusion whether there was a case for grant

of temporary injunction pending disposal of the

appeal or not. He argued that the suit was for

declaration of title of the respondent/plaintiff over

the suit property. As the trial court has held that

the execution of will was not free from suspicious

circumstances for dismissing the suit, the first

:: 5 ::

appellate

court

should

have

considered

the

evidence as also the findings of the trial court

while

deciding

the

application

for

grant

of

temporary

injunction

during

pendency

of

the

appeal. Instead, it is erroneously held by the

Senior Civil Judge that the appellants have not

disputed the testamentary capacity of Laxmanappa

and since an order of temporary injunction was in

force till disposal of the suit, the interest of the

appellant would not be affected in any way if th