CHINNAPPA Vs. SRINIVASA REDDY

JUDGEMENT

(1.) This Revision Petition has been listed along with the application for vacation of exparte interim order of stay. But, to avoid further delay in the matter of disposal of the Revision I have called upon both the Counsel for the parties to argue the case on merits, Before I further proceed, I may mention that this Revision arises out of the judgment and order dated 15.7.1995 delivered by the Principal Civil Judge (K.G. Lakshmipathi), Bangalore, in Miscellaneous Appeal No. 39/95 (K. Chinnappa v. C. Srinivasa Reddy) dismissing the plaintiff's appeal challenging the order of mandatory injunction granted by the Munsiff, Anekal, on 25.3.1995 in favour of the defendant (opposite party) in O.S.No. 193/93.

(2.) The brief facts of the case in nut-shell are to the effect that the plaintiff filed the suit for permanent injunction restraining the defendant from interfering and committing trespass on the land alleged to the belonging to the plaintiff, situated in Hebbagodi village in Bangalore District. During the pendency of the suit the defendant/opposite party moved an application purporting to be under Order 39 Rules 1 and 2 read with Section 151 C.P.C. praying for grant of temporary mandatory injunction directing the plaintiff to remove the fencings that had been placed by the plaintiff, which according to the defendant created obstruction in his way. As appears from, the judgment and order of the Trial Court, plaintiff has asserted that the fencing was more than 20 years old and that the same was not put during the pendency of the suit, while it is the case of the defendant that they were put during the pendency of the suit. The Munsiff did not decide this question at all. The learned Munsiff directed removal of the fencing simply on the ground that the fencing exists towards the Northern side of the defendant's house and that removal of that barbed fencing is necessary for better access to the defendant and as such he passed the order on I.A.III as under:

(3.) I have heard Sri C.B. Srinivasan, learned Counsel for the Revision petitioner, assisted by Sri Byareddy, an Advocate of this Court, and the learned Counsel for the respondent Sri H.P. Mudlappa at length.