(Prayer: This MFA is filed u/O. 43 Rule 1(R) of the Code of Civil Procedure, 1908, praying to set aside the order passed by the Ii Addl. District and Sessions Judge dated 22.11.2025 passed in IA No.01 in Ra No.57/2025 rejecting the IA No.1 U/O XXXIX Rule 1 and 2 r/w Sec. 151 of CPC and thereby allow the said application by restraining the respondents from interfering the peaceful possession of the appellants in the suit properties in the interest of justice and equity.)

CAV Judgment

1. This is the appeal filed under Order XLIII Rule 1(r) of C.P.C. praying for setting aside the order dated 22.11.2025 passed on I.A.No.1 under Order XXXIX Rule 1 and 2 read with Section 151 of C.P.C. in R.A.No.57/2025 filed on the file of II Additional District Judge, Haveri (Sitting at Ranebennur) [for short, 'First Appellate Court'] and to allow said I.A. restraining the respondents from interfering with peaceful possession of appellants over suit schedule properties.

2. Parties would be referred with their ranks, as they were before the First Appellate Court for the sake of convenience and clarity.

3. Plaintiffs/appellants have filed O.S.No.177/2022 on the file of Principal Senior Civil Judge, Ranebennur (for short 'Trial Court') praying for declaration that they be declared as absolute owners of suit schedule property bearing Re-Sy.No.60/1A measuring 5 acres 29 guntas situated at Kuppelur Village, Kuppelur Hobli, Ranebennur Taluk, Haveri District based on adverse possession.

4. The Trial Court after completion of pleadings, framing of issues, recording of evidence and hearing arguments has dismissed the suit. Aggrieved by said dismissal of O.S.No.177/2022, appellants/plaintiffs have filed first appeal before first appellate court in R.A.No.57/2025.

5. In the said R.A., appellants/plaintiffs have filed I.A.No.1/2025 under Order XXXIX Rule 1 and 2 of C.P.C. praying for grant of ad-interim temporary injunction restraining the respondents from interfering with the peaceful possession and enjoyment of appellants/plaintiffs till disposal of the appeal.

6. After hearing arguments of both sides on said I.A., the First Appellate Court has dismissed I.A. under Order XXXIX Rule 1 and 2 of C.P.C. Aggrieved by the same, appellants are before this Court.

7. Heard arguments of both sides.

8. Learned counsel for appellant, Sri M.H.Patil would submit that the Trial Court and First Appellate Court have not examined the facts properly; even though the appellants/plaintiffs are in possession of the suit schedule property and are having prima facie case, balance of convenience lies in their favour, the Trial Court and First Appellate Court have not granted the temporary injunction, which results in irreparable loss and hardship to plaintiffs/appellants.

9. Learned counsel for respondent, Sri Sagar S Hegde would submit that this is the second round of litigation between parties and thus they are not liable to make good the plaintiffs. The Trial Court and First Appellate Court having verified the case in detail have clearly come to the conclusion that sale deed is executed in favour of father of defendants in an execution proceeding. The matter of 1971 went up to Hon'ble Apex Court and then the father of defendants able to get registered sale deed from the Court. They are in actual possession of suit schedule property. Considering these aspects, the Trial Court rightly dismissed the suit for adverse possession. No material is produced by plaintiffs to show that they are in adverse possession of the suit schedule property. Under these circumstances, balance of convenience does not lie in favour of plaintiffs. Considering these aspects, the First Appellate Court rightly dismissed the I.A. under Order XXXIX Rule 1 and 2 of C.P.C. Hence, prayed for dismissal of appeal with costs.

10. Having heard arguments of both sides, verifying appeal papers, the point that arise for consideration is:

          "Whether the order of trial court in rejecting to grant Temporary Injunction in its discretionary power is false vexatious, frivolous or not in accordance with law?"

11. Finding on this point is answered in Negative for the following:

REASONS

12. This is the appeal under Order XLIII Rule 1 of C.P.C. Hence, the power vests in the Court are very limited. Only if the order passed by the First Appellate Court on I.A. No.1 is false, frivolous, vexatious or not in accordance with law, then only this Court can interfere with said order because Order under XXXIX Rule 1 and 2 of C.P.C. is a discretionary order which can be interfered with by the Appellate Court only on sufficient admissible grounds.

13. With this background, the case of appellants is to be analyzed.

14. Appellants in their plaint before the Trial Court have taken contention that suit schedule property is their ancestral property; their father-Shivanagouda Police Patil inherited the same from his father. He has taken hand loan of ₹7,160/- from one Krishnacharya Guracharya Galagali and for security for the aforesaid loan, he has executed an agreement of sale dated 02.06.1968. Based on this document, this Krishnacharya Galagali has filed suit against father of plaintiff in O.S.No.163/1971 on 06.09.1971. Said suit was decreed on 31.03.1975. Against said judgment and decree, father of plaintiffs have preferred R.A.No.24/1979 before Senior Civil Judge and it was also dismissed on 16.02.1982. Against said dismissal, the father of present plaintiffs has filed RSA No.524/1982 before this Court, which was allowed and judgment and decree passed in O.S.No.163/1971 and R.A.No.24/1979 were set aside. Against said judgment of this Court, father of defendants- Krishnacharya Galagali has filed Civil Appeal No.869/1992 before the Hon'ble Apex Court and it was allowed on 24.02.1992 by restoring the judgment and decree passed by the Trial Court. Based on it, Krishnacharya Galagali has filed Execution Petition No.127/1993; wherein the Court Commissioner was appointed and a sale deed dated 28.03.1995 was executed. Plaintiffs further contended that, possession was not delivered under said proceedings. Defendant or his father never cultivated the suit schedule property. It is still in possession of plaintiffs. Hence, the suit.

15. Said suit was dismissed after full-fledged trial; against which, first appeal is filed before first appellate court.

16. Based on sale deed, all revenue records were mutated into the name of father of defendant and then to defendant based on the Gift deed. These facts were admitted by PW1 in his cross-examination, as observed by the first appellate court.

17. After due execution of the sale deed through court, the said order was in challenge in R.A.No.18/95 and ultimately, it was also dismissed confirming the due execution of sale deed by the court commissioner.

18. After such dismissal of appeal, present suit was filed, which was also dismissed after contest.

19. In the initial round of litigation, the matter went up to Hon'ble Apex Court and ultimately it is held that father of present plaintiffs has executed an agreement of sale in the year 1968 in favour of father of present defendant and then by filing execution petition, father of defendant has obtained registered sale deed from the Court. Possession was also delivered. However, the present plaintiffs being the sons of defendant in said suit, have filed present suit in the year 2022 contending that they are in actual possession and enjoyment of suit schedule property, which they failed to establish before the Trial Court.

20. While passing orders in favour of plaintiff under Order XXXIX Rule 1 and 2 of C.P.C., prima facie plaintiffs have to produce some material before the Court to show that they are having proprietary interest over the suit schedule property and they should have arguable case. However, admittedly as per Court proceedings, possession was handed over to father of defendant. Defendant is owner of the suit schedule property. Temporary injunction cannot be granted against true owner.

21. Further, this is the second round of litigation on the same subject matter. No material is produced before the first appellate Court to show the actual possession of plaintiffs over the suit schedule property or the arguable case. Hence, there is no prima facie case established by plaintiffs. They have utterly failed to prove their case before the Trial Court as well as before the First Appellate Court.

22. Considering these facts, the First Appellate Court has rightly held that plaintiffs have not established prima facie case, no balance of convenience in favour of plaintiffs and they will not put to irreparable loss or hardship if temporary injunction as prayed is not granted and thereby dismissed I.A.No.1 under Order XXXIX Rule 1 and 2 of C.P.C. Hence, the order under challenge requires no interference.

23. Under these circumstances, this being second round of litigation, this appeal is to be dismissed with exemplary costs. However, considering the submission of learned counsel for appellants that appellants are very poor, the appeal is to be dismissed without imposing costs. Hence, this Court pass the following:

ORDER

          Appeal filed under Order XLIII Rule 1(r) of C.P.C. is dismissed by confirming the order passed on I.A.No.1 under Order XXXIX Rule 1 and 2 of C.P.C.

          The First Appellate Court is directed to dispose the appeal as expeditiously as possible because the litigation between parties is pending since 1971 and this is the second round of litigation.

          Draw decree accordingly.