CHOWDAPPA Vs. CHINNAPPIAH

JUDGEMENT

(1.) this civil revision petition under Section 115 of the code of civil procedure ('the code' for short) arises from the judgment and order dated 21-1-1995 passed by the additional civil judge, kolar (divakar rao, j.) In m.a. No. 97 of 1994 allowing the defendant's appeal and setting aside the judgment and order dated 19-11-1994 passed by the principal munsiff, kolar on la. I filed under order 39, rules 1 and 2 of the code in o.s. No. 371 of 1993.

(2.) the facts of the case in brief are that the plaintiff i.e., applicant (revisionist) and respondent 2 filed a suit for declaration of title and permanent injunction in respect of the suit schedule property with the allegations to the effect the suit property originally belonged to their father chennappa and after chennappa's death the plaintiff succeed to it as his heirs and entered into joint possession. They further alleged that defendant respondent 1 had no right, title or interest therein but defendant 1 has started illegally interfering with the plaintiff's possession and enjoyment of suit property. That along with the plaint of the suit, the plaintiff-applicant filed an application under order 39, rules 1 and 2 of the code for the grant of temporary injunction. The defendant put in appearance and he filed the objections. The trial court after hearing the parties, granted an order of temporary injunction in the following terms:

(3.) having felt aggrieved from the judgment and order of the trial court dated 19-11-1994, the defendant opposite party preferred the above mentioned civil miscellaneous appeal No. 97 of 1994 under order 43, Rule 1 of the code read with Section 104 thereof. The lower appellate court allowed the appeal and set aside the order of temporary injunction after having taken a view that the plaintiffs had concealed the fact of simple mortgage of the property by plaintiff in favour of defendant and observed that the mortgage and the agreement of sale were made on the same day. The lower appellate court further observed that when these two documents were read together an irresistable inference had to be drawn that plaintiff had some dealings with defendant and that they were not fair before the court by concealing the same. The lower appellate court further observed and recorded the findings to the following effect.