SHIVARAJ Vs. A. RANGASWAMY

JUDGEMENT

(1.) The petitioners in this review petition are respondents 1 and 2 in MFA 8499/2018 and they have sought review of the order dtd. 26/7/2019 in the said appeal. The petitioners are defendants 1 and 2 in the suit O.S. 26160/2018. The respondents 3 and 4 in the MFA are defendants 3 and 4 in the suit. While allowing MFA 8499/2018, all the defendants were restrained from changing or altering the nature of the suit property.

(2.) I have heard Sri Sharath S Gowda, learned counsel for the review petitioners and Sri K.B.S. Manian for the first respondent.

(3.) It was the argument of Sri Sharath Gowda that the MFA was allowed by following the judgment passed in MFA 3775/2019 and this is the error committed by this court for allowing the appeal. He submitted that this court ought to have followed the judgment in MFA 8988/2017 between S.C. Gangadharaiah and REMCO (BHEL), House Building Cooperative Society Limited, Bengaluru and Others : 2018 (4) kccr 3269]. He argued that the facts and circumstances in the case on hand are akin to the facts and circumstances found in the case of S.C. Gangadharaiah. Actually the review petitioners are in possession of the suit property and this is not disputed also. The respondent had earlier filed a suit O.S. 2029/2017 seeking the relief of permanent injunction. The plaint in the said suit was rejected as the respondent himself had clearly stated in his plaint that the possession of the suit property was with the petitioners. Later on the respondent approached this court by filing RFA 1602/2018 aggrieved by the order of rejection of plaint and that appeal was dismissed. Subsequently he filed the suit O.S. 26160/2018 in which he has sought the relief of possession in respect of only a portion of suit property measuring 7' x 5'. This portion is not separately described in a schedule. The other reliefs he has claimed in the suit are mandatory injunction directing the petitioners and other two defendants to demolish the shed constructed in a measurement of 7' x 5', mandatory injunction for closing the borewell and permanent injunction to restrain all the defendants from entering upon any portion of the property for putting up construction. Therefore the reliefs that the respondent has sought clearly indicate that he was not at all in possession of the suit property on the date when he brought the suit. The petitioners had raised construction already. Actually, for this reason the trial court declined to grant an order of temporary injunction. Now this court, while disposing of MFA 8499/2018, has wrongly applied the decision in MFA 3775/2019 and this is the error apparent on the face of the record. He further submitted that the injunction order granted by this court has stopped the construction undertaken by the petitioners. They have been affected a lot. The petitioners have made out a ground for review of the order and therefore he pleaded for reviewing the order and dismissing the appeal.