Karnataka High Court
Abdulkhadar S/O. Mohammadhanif Kolur vs Mohammadfarook S/O. Mohmmadali ... on 19 January, 2026
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NC: 2026:KHC-D:490
MFA No. 104419 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 19TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO.104419 OF 2025 (CPC)
BETWEEN:
ABDULKHADAR S/O. MOHAMMADHANIF KOLUR,
AGE. 57 YEARS, OCC. COMPANY SERVICE,
R/O. 5498, OSCAR, PETERSON BLVD,
MISSISSAUGA, ONTARIA STATE,
CANADA NOW RESIDING AT KHADAR
MANZIL VALVEKAR PLOT, KESHWAPUR
HUBBALLI-580009, TQ. HUBBALLI, DIST. DHARWAD.
...APPELLANT
(BY SMT. PALLAVI A.PACHHAPURE, ADVOCATE)
AND:
MOHAMMADFAROOK
S/O. MOHAMMADALI YATNATTI,
AGE. 50 YEARS, OCC. PRINTING BUSINESS,
R/O. 3211, MICROGRAPHICS PRINTING PRESS,
Digitally signed by
YASHAVANT WARD NO.6, GUGGARI PET, ILKAL,
NARAYANKAR TQ. ILKAL, DIST. BAGALKOT-587101.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. SANTOSHKUMAR G.RAMPUR, ADVOCATE)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER
43 RULE (1) R/W SECTION 104 OF THE CODE OF CIVIL PROCEDURE,
1908, PRAYING TO, SET ASIDE THE ORDER DATED 25.09.2025
PASSED ON I.A. NO.1 IN O.S. NO.219/2025 BY THE COURT OF
SENIOR CIVIL JUDGE AND JMFC, HUNGUND AND THE I.A. NO.1 FILED
BY THE PLAINTIFF FOR GRANT OF TEMPORARY INJUNCTION NOT TO
ALIENATE AND NOT TO ENCUMBER THE SUIT SCHEDULE PLOTS TILL
THE DISPOSAL OF THE SUIT, MAY KINDLY BE GRANTED, IN THE
INTEREST OF JUSTICE AND EQUITY.
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NC: 2026:KHC-D:490
MFA No. 104419 of 2025
HC-KAR
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
ORAL JUDGMENT
Aggrieved by the order passed on I.A.No.I in O.S. No.219/2025 dated 25.09.2025 by the Senior Civil Judge & J.M.F.C., Hungund, the plaintiff is before this Court. The plaintiff had filed the suit for declaration that he is the owner of the suit Schedule 'A' plots, to restrain the defendant by permanent injunction and not to interfere with the peaceful possession and enjoyment of the suit Schedule 'A' plots. In the said suit, I.A. No.I is filed seeking injunction restraining the respondent/defendant from alienating the Schedule 'A' plots.
2. It is the specific case of the plaintiff that, he migrated to Canada in the year 2002 and has been working there as Structural Engineer and his wife is also working as a Data Analyst in Canada since 2006. They are drawing a salary of ₹6,75,000/- and ₹1,75,000/- respectively. The plaintiff's sister is married to the defendant, who is a permanent resident of Ilkal town and he is running a printing press and having hand to -3- NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR mouth source of livelihood from the income of printing press. As the plaintiff is having enough resources, he wanted to purchase a land at Ilkal town and also felt it safe to invest in land at Inkal. The plaintiff had decided to purchase land and started sending money to the joint account of his sister and brother-in-law from the month of November, 2010, by instructing the defendant to search for a suitable land near Ilkal town. The plaintiff had already purchased 4 acres of land in the industrial area of Ilkal, which was sold by him in two strips of 2 acres each in the year 2012 and 2022 respectively and had enough money in addition to his service to invest in new land and for its development. The defendant suggested the plaintiff to purchase the land in the defendant's name, as the plaintiff was residing in Canada and it was practically inconvenient for him to acquire the land in his own name. Further, post-sale activities such as conversion of the land from agricultural to non-agricultural use, obtaining layout approvals from the competent authorities, and undertaking and supervising infrastructure development works for the formation of plots required continuous local presence. As the plaintiff had trust in the defendant, the property was purchased in the name of the defendant on 13.08.2012. It is the case of the plaintiff -4- NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR that, he had paid an amount of Rs.68,80,000/- to the defendant out of his and his wife's joint account with ICICI Bank. The entire sale consideration of the land under sale deed dated 13.08.2012 has been paid out of the amount invested by the plaintiff from his account and his wife's account. The plaintiff used to come to India and also used to look at the developments. He has also paid the supervision fee of Rs.11,33,470/- and the entire development works are being executed at the costs of the plaintiff. It is the case that the plaintiff had invested more than Rs.1,00,00,000/- through his account and his wife's account for the period between 01.01.2013 and 03.04.2025. The plaintiff has produced the extract of the statement of Bank accounts of his wife and himself. The developmental works were undertaken with the money that was sent by the plaintiff. 70% of the suit Schedule 'A' plots are released for sale by the CMC Authorities. The defendant has devised a plan to sell the said plots on his own, falsely claiming ownership thereof, and has begun propagating such claims to prospective purchasers. The intervention of the elders has not yielded any fruits. Hence, the plaintiff is constrained to file a suit.
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR
3. In response to that, the defendant had filed his written statement. It is the case of the defendant that, he has purchased the property in the year 2012. After lapse of 13 years, that too after entire land is developed, the plaintiff is seeking to declare him as owner, which is clearly barred by the law of limitation and the plaintiff has not approached the Court with clean hands and he is not entitled for temporary injunction. It is the case that the defendant has repaid the amount to the plaintiff that was borrowed from time to time, except some balance amount. But, the plaintiff did not question the repayment of the amount. He accepted the payment made by the defendant. It is stated that the plaintiff, being a greedy person, considering how the lands have become valuable, has come up with this suit. The plaintiff has no material evidence to prove his ownership. As such, he is not entitled for injunction and the defendant being a true owner of the property is entitled to sell the property. It is also stated that, the plaintiff is an interest-free lender, as he is the brother of the defendant's wife. The defendant has denied all the averments made by the plaintiff and it is stated that the plaintiff is habitual in filing false cases on respondent, his family and friends and for his every false case, -6- NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR respondent has contested in hope of winning, as false would never win.
4. The Trial Court by order impugned rejected I.A. No.I filed by the plaintiff seeking injunction by restraining the defendant from alienating the suit Schedule 'A' plots. While dismissing the application, the Trial Court has observed that, the sale deeds show that the defendant is the absolute owner of the property, thus, the temporary injunction cannot be granted against the true owner of the property and the plaintiff has to prove that, he has advanced the amount only for the purpose of purchasing the land and conversion of the land into plots, otherwise, the plaintiff will not succeed in the case. Further, if this application is allowed, the defendant will be put to untold hardship which cannot be compensated in terms of money and on the other hand, if this application is not allowed, no harm will be caused to the plaintiff. The Trial Court had considered the judgment of the Hon'ble Apex Court in the case of JAYDAYAL PODDAR AND ANOTHER Vs. MST. BIBI HAZRA AND ORS.1, relied upon by the plaintiff with regard to the benami transactions. The Court has come to the conclusion that, at this stage, it cannot 1 AIR 1974 SC 171 -7- NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR look into the said judgment. The Court has also come to the conclusion that, the plaintiff has not established prima facie case and the plaintiff is not entitled to the equitable relief of temporary injunction, as the balance of convenience has not tilted in his favour in respect to the suit property, therefore, the application came to be rejected.
5. Learned counsel appearing for the appellant/plaintiff submits that, additional evidence is filed before this Court under Order XLI Rule 27 of CPC, wherein, all the WhatsApp conversation between the parties are placed, which clearly shows that the amount that is given to the defendant is for the purpose of purchasing the property and the property is purchased with the money belonging to the Plaintiff and now as an afterthought, the defendant denied the title of the plaintiff to the suit Schedule property. It is submitted that, if the defendant sells away the entire property, the purpose of filing suit itself will be frustrated and in fact, by placing the account details before the Court and even the acceptance of the defendant in the written statement clearly shows that the plaintiff has lent the money to the defendant for purchase of the property. It is submitted that, the Trial Court had failed to understand and interpret what are the -8- NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR ingredients for grant of injunction and without any basis, the Trial Court has held that, no prejudice would be caused to the plaintiff. It is submitted that, in the facts and circumstances of the case, the plaintiff is entitled for injunction as sought for.
6. Learned counsel appearing for the respondent/ defendant submits that, as there is no prima facie title in favour of the plaintiff, the balance of convenience does not lie with the plaintiff, nor would any irreparable loss be caused to him if the Court had dismissed the application. The plaintiff has failed to establish that he is entitled for any relief from the Court. There is no document to show that, at the behest of the plaintiff, the property is purchased by the defendant. There is no dispute about the fact that the defendant has lent the money and in fact, out of Rs.1,00,00,000/-, Rs.50,00,000/- and odd is already paid to the plaintiff and he is ready to pay the remaining amount. The plaintiff has a remedy for recovery of money or any other relief which he is entitled, but he is not entitled for declaration of title. Further, it is submitted that, they have not sought for recovery of possession. Without seeking for the recovery of possession, they are not entitled for relief. It is submitted that, if any purchase is made during the pendency of the proceedings, -9- NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR Section 52 of the Transfer of Property Act will take care of the subsequent sales. It is submitted that, the respondent is the true owner of the property and there cannot be an injunction against the true owner. The Trial Court, considering all these aspects, had rightly rejected the application. He further submits that the petitioner, without making any factual basis for these WhatsApp conversations, at this stage, he cannot file these documents by way of additional evidence. Relying on order dated 11.02.2025 passed by the Co-ordinate Bench of this Court in W.P. No.106017/2024 at paragraph Nos.8 and 9 it is submitted that, the defendant is not entitled for any relief from this Court. Paragragh Nos.8 and 9 of the said order read thus:
"8. Thus, in conclusion, the Trial Court was right in holding that no prima facie case has been made out by the plaintiffs and that the balance of convenience lies in favour of the defendants. Furthermore, though the defendants being the owners under a registered sale deed, a true owner cannot be injuncted from dealing with the properties.
9. Be that as it may, any alienation of the properties if effected by the defendants would be subject to the principle of lis pendens under section 52 of the Transfer of Property Act. Since the suit is one for declaration of title and cancellation of sale deeds, no injunction can be granted."
7. Then relying on the judgment of the Delhi High Court in the case of EARTHZ URBAN SPACES PVT LTD Vs. RAVINDER
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR MUNSHI & ORS dated 09.10.2025 at paragraph Nos.18, 19 and 20 it is submitted that, the injunction cannot be granted. Paragragh Nos.18, 19 and 20 of the said order read thus:
18. Senior counsels for the defendants have placed reliance on the judgment of a Coordinate Bench of this Court in Santokh Singh v. Shagun Farm Pvt. Ltd., 2017 SCC OnLine Del 6844. Paragraphs 25 and 26 of the said judgment read as under:
"25. The genesis of the judgment in Vinod Seth supra was the prejudice suffered by the defendant in a suit for specific performance of an Agreement of Sale of immovable property even in the absence of any restraint order against him, due to applicability of the principle of lis pendens and which virtually makes the property inalienable or unencumberable at market rates and with no measure left to compensate the defendant in the event of the plaintiff in the suit for specific performance ultimately failing. The costs of the suit even if awarded to the defendant in such a situation were not found sufficient to compensate the defendant. Supreme Court in Vinod Sethi held that a Court is justified in taking a view that on material till then on record, the likelihood of the plaintiff succeeding in the suit or securing any interim relief against the defendant is remote and to exempt the suit property from the operation of Section 52 of the Transfer of Property Act so that the defendant would have the liberty to deal with the property in any manner inspite of the pendency of the suit. I have in Rajiv Maira v. Apex Apartments Pvt. Ltd. (2013) 138 DRJ 464 so exempted the property subject matter of that proceedings and SLP (C) No. 5920/2014 preferred thereagainst was dismissed on 24th March, 2014.
26. I am, for the reasons here after appearing, of the view that chances of the plaintiffs succeeding in this suit for specific performance are remote and there would be no way to compensate the defendant for the prejudice caused from applicability of Section 52 of the
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR Transfer of Property Act during the pendency of the suit which though has to be put to trial."
19. Taking into account the conduct of the plaintiff in the aforesaid case, the court observed that the doctrine of lispendens will not apply to the property that was subject matter of the suit and the defendant therein would be free to deal with the property. Counsel for the plaintiff submits that the aforesaid judgment was passed prior to the amendment of the Specific Relief Act in 2018 and therefore, would not apply to the present case. I do not agree. The observations of the aforesaid judgment would be squarely applicable to the facts of the present case, on account of the following factors:
(i) The transcripts of the WhatsApp messages filed on behalf of the plaintiff do not establish any oral agreement between the parties.
(ii) The transcripts of the WhatsApp messages of 27th April, 2021 have been selectively extracted in the plaint and material parts thereof, have been deliberately omitted so as to mislead the court.
(iii) The case of an 'Oral Agreement to Sell' has been set up only for the first time in the plaint.
In the legal notice sent on behalf of the plaintiff to the defendants, the case was completely based on the MoU dated 2nd June, 2021.
(iv) A perusal of the aforesaid MoU clearly show that it is not a binding agreement between the parties and therefore, cannot be enforced in a court of law.
(v) No proof of payment of any amount to the defendants has been produced on behalf of the plaintiff. The cheque bearing no. 001082 amounting to Rs. 2 lakhs wrongly records the name of the defendant no. 3.
20. Taking into account the aforesaid, I am of the view that the likelihood of the plaintiff succeeding in the present suit is remote and therefore, it is a fit case to exempt the suit property from the operation of Section 52 of the Transfer of Property Act during the pendency of the suit. Great prejudice would be caused to the defendants if upon issuance of summons in the suit, the
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR doctrine of lispendens is applied in respect of the suit property."
8. Then, he also relied on the judgment of the Hon'ble Supreme Court in the case of IQBAL AHMED (DEAD) BY LRS. AND ANOTHER Vs. ABDUL SHUKOOR2 at paragraph No.8 which reads as follows:
"8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar Vs. Nilima Mandal and Anr., AIR 2009 SC 1103 and Union of India Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence."
9. In response to the above, learned counsel appearing for the plaintiff submits that, they have already taken steps for 2 2025 INSC 1027
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR amending the prayer seeking recovery of possession. Further it is submitted that, the application filed under Order XLI Rule 27 of CPC placing the additional evidence can be considered by this Court. She has relied on the judgment of the Hon'ble Supreme Court in the case of SANJAY KUMAR SINGH Vs. THE STATE OF JHARKHAND3 at paragraph No.4 which reads as follows:
"4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, 3 2022 Live Law SC 268
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."
10. Relying on this, she submits that the Court can consider this application and take the additional evidence on record.
11. Having heard the learned counsels on either side, perused the material on record. The plaintiff has filed a suit for declaration of title and injunction and according to him, he is the owner of the property. The undisputed facts in this case establish that, the property was purchased using funds sent by the plaintiff to the defendant. According to the defendant, he has taken an interest-free loan from the plaintiff. The aspect of lending the money is an undisputed fact. The issue to be established during the course of the trial is whether the amount was paid for the purpose of purchasing the property in the name of the plaintiff, or whether it was paid for the benefit of the defendant. WhatsApp conversations are placed before this Court by way of additional evidence, which, at this stage, this Court is not inclined to take into consideration. In the background of this factual matrix, if the plots i.e. the suit Schedule property are sold, it would cause irreparable loss to the plaintiff. Prima facie,
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR the plaintiff could establish that he has been sending the money to the defendant. The defendant also accepts the same and it is submitted that, he is ready to give back the money, but there is no agreement between the plaintiff and him to purchase a property in his name. According to defendant, half of the money is already repaid to the plaintiff. This Court, in light of the admitted facts and the arguments advanced by both parties, is of the view that the plaintiff has made out a case for grant of interim injunction. Although Section 52 of the Transfer of Property Act addresses the transactions that take place during the pendency of the suit, that alone cannot be a ground to deny the plaintiff the relief of injunction. It will not take away the Court's power to grant injunction to preserve the subject matter of the suit property. It amounts to creating further litigation, which is not in the interest of the parties. In light of the pleading and admission by the defendant with regard to the payment received from the plaintiff, this Court is of the view that the plaintiff has made out a prima facie case and balance of convenience lies in his favour and if the injunction is not granted, irreparable loss would cause to him. As far as application for additional evidence is concerned, during the course of evidence,
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NC: 2026:KHC-D:490 MFA No. 104419 of 2025 HC-KAR the plaintiff can place it before the Trial Court, subject to the law of evidence and relevancy, the Trial Court will consider the same.
12. In view of the above, this Court is passing the following:
ORDER
(i) Accordingly, the miscellaneous first appeal is allowed.
(ii) The order dated 25.09.2025 on I.A. No.I in O.S. No.219/2025 passed by the Senior Civil Judge & JMFC., Hungund is set-aside and I.A. No.I in O.S. No.219/2025 filed by the plaintiff is allowed.
(iii) The Registry shall return the documents that are filed before this Court under Order XLI Rule 27 of CPC.
(iv) The parties are at liberty to raise all the issues before the trial Court.
(v) All I.As. in this miscellaneous first appeal shall stand closed.
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JUSTICE LALITHA KANNEGANTI RH/ CT: UMD/ List No.: 1 Sl No.: 28