V RAMACHANDRAIAH SETTY Vs. KONDAPPA

JUDGEMENT

(1.) The appellants who were plaintiffs in OS.356 of 1971 on the file of the Munsiff, Kolar, are aggrieved by an order made by the Civil Judge, Kolar, in RA.150 of 1974, whereby their prayer for issuance of temporary injunction has been refused.

(2.) The appellants sued for a permanent injunction in respect of a conservancy adjoining their properties on the ground that the same was public conservancy road. In the course of the suit, they filed an application for temporary injunction against the defendant which was granted in the firat instance exparte and later on an undertaking having been given by the defendant (1st respondent herein) that he would right interfere with the use of the road by the plaintiffs, the relief of temporary injunction was not pursued. After trial the suit was dismissed holding inter alia that it was a public conservancy road and tha,t the plaintiffs not having established a legal right, the same was not a case for decreeing the suit for injunction. The plaintiffs appealed to the Civil Judge in RA.150 of 1974. In the course of the appeal, they sought for the issue of a temporary injunction on the same lines as had been prayed for before the trial Court. The learned Civil Judge after referring to the findings of the learned Munsiff, refused to grant the injunction prayed for apparently relying on an enunciation reported in Item 165 in 1971 (1) Mysore Law Journal page 72, (1971) 1 MysLJ. Sh.N. 165(p.72.)

(3.) After hearing the learned Counsel for the appellants, I am clearly of the view that this appeal deserves to succeed. The enunciation relied on by the lower appellate Court is clearly inapplicable to the facts of the present case. In the instant case, it is clearly found by the trial Court that the conservancy in question was a public one, which means that every member of the public has a right to the user thereof unobstructed by any one else, much less the defsndant. The enunciation in Item 165 relates to a case of refusal to grant injunction where the trial Court has found alter trial that the person applying for such injunction had not been in possession of the property in dispute. In the face of a finding of that nature by a Civil Court, it is but proper for an appellate Court to rely on it and refuse an injunction. This enunciation is subsequently dealt with by a decision of this Court in Ratnavathi v. Munda Belchada, (1974) 1 KarLJ. 252=AIR. 1974 Kar. 120, and explained in the following terms by his Lordship Govinda Bhat, CJ. The enunciation is with reference to the very decision relied on by the learned Civil Judge, and reads thus :