KAMALA HANDTHY AND ANOTHER Vs. ANANTHAYYA HEBBAR

JUDGEMENT

(1.) This revision petition preferred by the defendants in O.S. No. 434 of 1973 on the file of the Court of the Munsiff Udipi, S.K., arises out of an application by the respondent - the plaintiff in the suit-for an order of temporary injunction under Order 39, Rules 1 and 2 CPC. restraining the defendants from interfering with the plaintiff's possession of the properties described in plaint A Sch. The learned Munsiff made an ex parte order of ad interim injunction but vacated the same after defendants entered appearance and contested the suit. On appeal by the plaintiff, the learned Civil Judge, Udipi has reversed the order of the trial Court and made an order of temporary injunction except in regard to a thatched house which admittedly is in the occupation of the defendants. Aggrieved by the said order, the defendants have preferred the above revision petition.

(2.) It was urged by Sri Padubidri Raghavendra Rao, learned Counsel for the petitioners that the learned Civil Judge has erred in the exercise of his jurisdiction when he dealt with the appeal as if it were a regular appeal and that he has tried to re-appreciate the evidence when the trial Court in the proper exercise of its discretion has come to the conclusion that the plaintiff has not made out a prima facie case for granting a temporary injunction. But it was contended by the learned Counsel for the respondent that there is no error in the exercise of jurisdiction in the Appeal before the learned Civil Judge who has rightly come to the conclusion that the plaintiff has made out a prima facie case for an order of temporary injunction and this is not a case calling for interference under Sec. 115 of the Code.

(3.) In order to appreciate the respective contentions it is necessary to state briefly, the undisputed facts of the case. The suit properties are agricultural lands in the District of South Kanara. There is a house in S. No. 168/1 which is one of the items of the plaint A Sch. and the defendants are residing in the said house. The plaintiff does not dispute that the defendants are residing in the house situated in S.No. 168/1, tie defendants, admit that the plaintiff is the owner of the suit schedule Property but, it is their case that they are challenging tenants of the lands.