LALITHAKSHI ANNADANAGOWDA Vs. SADASHIVAPPA BASAPPA

JUDGEMENT

(1.) This revision petition is by the defendant and is directed against the judgment dt. 6th Octr., 1982, passed by the Civil Judge, Bagalkot, in MA No. 15/82 on his file allowing the appeal on setting aside the order passed by the Munsiff, Bagalkot on IA I in OS No. 130/82 on his file, vacating the ex parte temporary injunction order granted in favour of the plaintiffs on 15-7-1982.

(2.) The plaintiffs were the owners of the property TP No. 141. They sold the eastern portion measuring 30' x 50" to the defendant under a registered sale deed dt. 10-4-1978. In the sale deed, the first item of the property sold is shown as the building portion measuring 30' x 36' and the second item is shown as open space measuring 30' x 14'. It is not in dispute that after the defendant purchased the second item open space, she has put up a construction over the same. There arose, however, dispute between the parties when the defendant constructed a septic tank measuring 10'5"x 4'5" in the space towards the southern side of the two latrines of the plaintiffs for her use, alleging that the space constituted the 3rd item sold to her. The plaintiffs instituted a suit on the averment that they retained the ownership over the area where the defendant constructed the septic tank and they sought' for permanent injunction against the defendant in the suit from putting up a latrine in that area stating that they did not allow under the sale deed permission to the defendant to put up latrine with septic tank in the area. After the institution of the suit, the plaintiffs got issued a temporary injunction against the defendant ex parte. The defendant on entering appearance filed objections and the matter came up for hearing before the trial Court. The trial Court by its order dt. 6-9-1982 vacated the ex parte temporary injunction order granted and dismissed IA I for 'temporary injunction instituted by the plaintiffs. Aggrieved by the said order, the plaintiffs went up in appeal before the learned Civil Judge, Bagalkot in MA No. 15/82 and the learned Civil Judge, reassessing the evidence on record, allowed the appeal, set aside the order passed by the trial Court 'and granted the temporary injunction order as prayed for in favour of the plaintiffs. Aggrieved by the said judgment passed by the learned Civil Judge, the defendant has instituted the present civil revision petition before this Court.

(3.) The learned Advocate appearing for the revision petitioner strenuously urged before me that the learned Civil Judge committed a legal error in approaching the facts of the case and that he exceeded his jurisdiction in interfering with the order passed by the trial Court in its discretion. He pressed on me that when the learned Civil Judge himself admitted that the interpretation put by the learned Munsiff on the sale deed was also reasonably probable, the learned Civil Judge had no jurisdiction to differ from the order passed in its discretion by the trial Court. He submitted that the first appellate Court was not at liberty to interfere with the discretionary order passed by the trial Court in vacating the injunction, simply because, different interpretation is possible on the facts of the case. That way he submitted that the first appellate Court exceeded its jurisdiction. He further submitted that the first appellate Court was not even justified in thinking that there was any ambiguity in the sale deed and in trying to put two interpretations where there was no ambiguity at all in the words of the sale deed. Hence, he submitted that the CRP was entitled to succeed.