BABY Vs. NATHU

JUDGEMENT

(1.) BY consent of learned Counsel, this appeal was treated as having been posted for hearing and we heard them. This appeal is from the order dated 24.7.81 of Bhimiah, J., in WP No. 14284 of 1981 making absolute the ex parte ad-interim order of injunction granted by him earlier. Respondent- 3 therein has presented this appeal. For the sake of convenience, the parties will hereinafter be referred to according to their respective positions in the writ petition. The petitioner had made an application under S. 48A(1) of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as 'the Act') before the First Land Tribunal Udupi Taluk (hereinafter referred to as 'the Tribunal'), claiming occupancy rights in respect of 20 cents of land in Sy. No. 53 3B and 20 cents of land in Sy. No. 53 5, both of Moodanidambur village, belonging to respondent-3. The Tribunal, by its order dated 30.11.77, granted that application. The order was quashed by this Court in a writ petition filed by respondent-3 and the petitioner's application under S. 48-A(1) of the Act was remitted to the Tribunal for a fresh disposal Thereafter, the Tribunal, by its order dated 9.6.81, granted to the petitioner occupancy rights only in respect of 12 cents of land in Sy. No. 53 3B and 18 cents of land in Sy No. 53 5 and rejected his claim in respect of 8 cents of land in Sy. No. 53 3B and 2 cents of land in Survey No. 53 5. That order, in so far it, concerned the rejection of the petitioner's claim, had been impugned in W. P. No. 14284 of 1981. The prayer of the petitioner in the writ petition, was to direct the Tribunal to grant him occupancy rights in respect of the extents of lands for which his claim was rejected. The interim prayer sought I here in was for grant of an order of temporary injunction in respect of 30 cents of land in Sy. No. 53 3B and 18 cents of land in Sy. No. 53 5 on the averment that he (the petitioner) was in possession of those lands and that respondent-3 was trying to disturb such possession. The learned single Judge issued Rule in the writ petition on 17.7.81 and granted the ex parte order of injunction sought for. That order of exparte injunction was made absolute by his order now under appeal. Shri P. Vishwanatha Shetty, learned Counsel for the appellant (respondent-3 in the writ petition) contended that the learned single Judge should have vacated the ex parte order of temporary injunction which had been granted for the first time in the writ petition and should not have made the ad-interim order absolute. Shri Vishwanatha Shetty, learned Counsel further contended that when the Tribunal had held in its order impugned in the writ petition, that the lands, occupancy rights of which were claimed by the petitioner, were non-agricultural lands, it could not have granted occupancy rights in respect of any portion of those lands in favour of the peti ioner and that when the Tribunal had no jurisdiction to grant occupancy rights in respect of those lands, this Court was not justified in granting an order of temporary injunction for the first time in the writ petition. On the other hand, Shri A. V. Albal, learned Counsel for respondent-3 (the petitioner), sought to sustain the order of the learned single Judge. He wanted us to examine the proceedings of the Tribunal and also other documents produced by him for satisfying ourselves as to whether the petitioner was in possession of the lands for which he had claimed occupancy rights. In our view, the learned single Judge, in making the order under appeal, has overlooked the ruling of the Division Bench. Therein, an exparte order of injunction granted by Srinivasa lyengar, J, having been vacated by Bhimiah, J., and that latter order having been appealed from, it was held thus by the Division Bench while upholding the same: