THIMMAIAH Vs. THIMMAIAH (DEAD) BY L.RS

JUDGEMENT

(1.) The petitioner is the defendant before the Trial Court. The respondents herein have filed the suit in O.S. No. 96 of 2007 seeking permanent injunction in respect of property bearing Survey No. 63P measuring 4 acres situated at Kyatalapura Village, Hassan District.

(2.) The plaintiffs-respondents have contended that the land in question was granted in favour of their ancestor one Sri Thimmaiah, S/o. Dasappa during the year 1959-60. In support of their claim, they have produced the grant certificate and the record of rights, which stood in the name of Thimmaiah, S/o. Dasaiah. After the death of Thimmaiah in the year 1988 the records of rights continued in his name and in the year 2008 they have got the records changed in their favour and the mutation is effected in this regard vide mutation M.R. No. 2 of 2007-08.

(3.) The case of the defendant-petitioner herein has been that his father's name was also Thimmaiah S/o Dasaiah and it was his father who has been granted the land in question and his name was continued in the records and taking undue advantage of the similarity of the names of his father and that of plaintiffs' ancestor, the plaintiffs have instituted the suit. The Trial Courts considering the application filed by the petitioner under Order 39, Rules 1 and 2 came to the conclusion that neither the plaintiff nor the defendants were in a position to make out clearly their actual possession and enjoyment of the suit property and it was not clear as to whether the documents produced by them pertained to the plaintiff. The Trial Court found that a full dressed trial would only clarify the position. The lower Appellate Court on appeal preferred by the plaintiff has reversed the finding and has granted temporary injunction in favour of the plaintiff recording a finding that the documents produced by the plaintiff disclosed prima facie case for grant of temporary injunction and the balance of convenience was in their favour. Aggrieved by the order passed by the lower Appellate Court this writ petition is filed.