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by sayum
18 May 2026 2:57 PM
"No Right to Alienate, No Right to Alter — Except With the Court’s Permission and a Promise Not to Claim Equity", - In a thoughtful and finely balanced decision, the High Court of Karnataka has allowed a family member to proceed with construction of a warehouse on disputed ancestral land subject to the outcome of a pending partition suit, cautioning that “no equity shall be claimed” in respect of the structure if the builder’s share is ultimately not allotted.
Justice Hanchate Sanjeevkumar delivered a split ruling: while affirming a temporary injunction restraining alienation of the property, the Court set aside a separate order restraining construction, provided that the appellant files an affidavit undertaking not to claim any rights or equity arising from the said construction.
The case concerned ancestral lands in Bommanahalli village, where a joint Hindu family dispute over partition had been pending. The plaintiff, B.S. Vishwas, claimed that no formal partition ever took place and that defendants were "selling off and constructing on ancestral land without safeguarding the legitimate shares of all heirs."
“Plaintiff Has a Prima Facie Case for Partition and a Right to Protect the Status Quo”
The Court observed that the suit was based on the claim of ancestral property inherited through Siddappa, the family patriarch who had received a government re-grant of the lands in 1981. The plaintiff argued that the defendants' claim of a partition in 1978 was legally untenable, as the re-grant was only made three years later.
Agreeing with this position, Justice Sanjeevkumar remarked,
“If the suit schedule lands are alienated, it would cause deprivation of claiming the legitimate share of the plaintiff.”
The Court further found that the plaintiff had shown enough merit to secure protection of his claimed share from further transfer, stating,
“An order of temporary injunction restraining the defendants from alienating or transferring the suit schedule lands is justified.”
Accordingly, the appeal challenging the injunction on sale and alienation (MFA No. 1261/2025) was dismissed.
“Construction Can Proceed, But It Comes at a Risk”
Where the matter took a different turn was in relation to construction of a warehouse by appellant No.5 (defendant No.12), who had begun work on 1 acre of land and claimed to have raised bank loans for the project.
The Court took note of the situation and observed,
“The plaintiff is not entitled to share in the entire land, but at the most 1/3rd. Construction of warehouse on less than 1 acre, if allowed, would not prejudice the plaintiff's right, provided the builder agrees not to claim any equity.”
Photographs of the ongoing construction were submitted, and the Court remarked that halting the construction at this stage would cause "more harm to the builder than to the plaintiff".
What tipped the scales was the defendant’s clear and unconditional undertaking:
“Appellant No.5 shall not claim any equity… the construction made on it shall be subject to the result of the suit.”
In view of this, the Court allowed MFA No. 8364/2024, thereby permitting the construction to proceed.
“Change of Land’s Nature Cannot Be Allowed to Obscure Future Partition” — But Here’s Why This Case Is an Exception
The Court emphasized that normally, such construction would alter the character of the land and could complicate partition by metes and bounds.
Justice Sanjeevkumar clarified, “If the nature of the lands is altered, dividing the properties by metes and bounds would become difficult, affecting the plaintiff’s share.”
However, he added that the current case was an exception, given the limited area (1 acre) and the express waiver of equity rights by the builder.
Hence, the order of the trial court restraining construction (I.A. No.15) was set aside, but with a clear condition that the warehouse must remain subject to the outcome of the suit.
“When a Family Disputes Inheritance, Development Must Wait — Or Be Done Without Entitlement”
The Karnataka High Court’s ruling draws a strong distinction between possession and partition, and reaffirms that construction during litigation cannot confer advantage or rights, unless clearly permitted under judicial oversight and without future claims.
In the Court’s words,
“Construction of warehouse though would change nature of lands, but no threat to boundaries or demarcation was shown. Hence, it may continue, but subject to final decree.”
The message is clear — development is allowed, not as a right, but as a judicial indulgence, and those who build must do so at their own risk.
Date of Decision: 17 April 2025
