IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 2490 OF 2025 (CPC)

BETWEEN:

1. SMT A M HEMA AGED ABOUT 29 YEARS, DAUGHTER OF LATE K.MUNI REDDY NO. 188, 5TH BLOCK, 4TH A CROSS, KORAMANGALA LAYOUT, BENGALURU 560 095. 2. MS A M BRUNDHA AGED ABOUT 25 YEARS, DAUGHTER OF LATE K.MUNI REDDY NO.147/3, 4 AND 5

4TH CROSS, 20TH MAIN SECTOR -1 HSR LAYOUT BENGALURU 560 102.

Digitally signed …APPELLANTS by NIRMALA (BY SRI. V B SHIVA KUMAR, ADVOCATE)

DEVI Location:

HIGH COURT AND:

OF KARNATAKA

1. SRI H K SRINIVAS REDDY AGED ABOUT 60 YEARS SON OF LATE M KRISHNA REDDY NO. 147/1 AND 2, 4TH CROSS

20TH MAIN, SECTOR-1 HSR LAYOUT BENGALURU -560 102.

2. SMT. RADHAMA, AGED ABOUT 85 YEARS, WIFE OF LATE M.KRISHNA REDDY NO. 147/1 AND 2, 4TH CROSS 20TH MAIN, SECTOR-1, HSR LAYOUT BENGALURU 560 102.

…RESPONDENTS (BY SRI. M S VARADARAJAN, ADVOCATE FOR R1)

THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 18.12.2024 PASSED IN FDP.NO.170/2024 ON THE FILE OF THE XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, (CCH.NO.44), REJECTING THE APPLICATION FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC AND ETC.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE C.M. POONACHA

ORAL JUDGMENT

The above appeal is filed calling in question the order dated 18.12.2024 dismissing the application filed by the petitioners under Order XXXIX Rule 1 and 2 r/w Section 151 of Code of Civil Procedure, 1908, [Hereinafter referred to as the ‘CPC’] in Final Decree Proceedings No.170/2024, [Hereinafter referred to as the ‘FDP’] by the XLIII Additional City Civil & Sessions Judge, Bengaluru, [Hereinafter referred to as the ‘Trial Court’]

2. For the sake of convenience, the parties will be referred to by their rank before the Trial Court.

3. The relevant facts in a nutshell leading to the present appeal are that the father of the appellants and the respondent No.1 instituted a suit in O.S. No.7427/1995 seeking for partition and separate possession. Vide judgment and decree dated 31.10.2011, the said suit was partly decreed and the plaintiffs were held entitled to 1/3^rd share each in the suit schedule item No.2 property. The said decree passed by the Trial Court in O.S. No.7427/1995 was affirmed by this Court in RFA No.275/2012. FDP No.170/2024 was filed by the appellants to draw the final decree in respect of the suit schedule item No.2 property. In the FDP, the appellants/petitioners filed an application under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC to restrain the respondent No.1 or any one claiming through or under him from changing the nature/putting up construction of the suit item No.2 property. The respondent No.1 filed objections to the said application. The Trial Court vide order dated 18.12.2024 rejected the said application. Being aggrieved, the present appeal is filed.

4. Sri V.B. Shivakumar, learned counsel appearing for the appellants assailing the order passed by the Trial Court contends that in the suit, the plaintiffs were held as being entitled to 1/3^rd share each in the suit item No.2 property and to partition the same, the FDP has been filed. That pending actual division of the property, the relief sought for vide application to restrain the defendant No.1/respondent No.1 from putting up construction ought to have been granted, as, if the respondent No.1 is permitted to put up construction, the same would prejudice the case of the appellants in the FDP. It is further contended that the reliance placed by respondent No.1 on the Palupatti dated 06.05.1998 was disbelieved by the Trial Court in the suit and hence, in the FDP the reliance placed on the said Palupatti dated 06.05.1998 for the purpose of rejecting application is erroneous. It is further contended that the appellants are in possession of a portion of item No.2 property which is the schedule