MELAGIRIYAPPA Vs. TUMALAPPA

JUDGEMENT

(1.) This is a Civil Revision under Section 115 of the Civil Procedure Code from the judgment and order dated 11-11-1993 passed in Misc. Appeal No.44/93 (Thumalappa v. Melagiriyappa), whereby the first Appellate Court allowed the plaintiffs' appeal in the matter of an application under Order 39, Rules 1 and 2, CPC which had been moved in suit No. 491/92 and set aside the order of the Trial Court, whereby the Trial Court has refused to grant temporary injunction, the lower Appellate Court after having set aside in as Court's order, granted the order of temporary injunction in favour of the opposite parties.

(2.) The suit No.491/92 was a suit for specific performance of contract to execute the sale deed in pursuance of the agreement dated 22-7-1989. According to the plaintiffs opposite party, the defendant had sold his 4 acres of land as admitted. Execution of the sale deed dt. 10-2-1950 and has handed over possession thereof at the time of executing the sale deed dt.10-2-1950. Subsequently on 22-7-1989 the defendant agreed to transfer by sale, 2 acres of land from that very plot Sy. No.99 of Thippaganahalli lying south of the Mud bund which was alleged to be forming the southern boundary of the land sold earlier in 1950. According to the plaintiffs' case, the possession of the 2 acres of land lying to the south of 4 acres of land which had been subject matter of sale deed dated 10-2-1950, had been delivered, at the time when the agreement for sale was entered into by the defendants, to the plaintiffs after having received the sale consideration. The plaintiffs therefore claimed an order of temporary injunction restraining the defendants from interfering with the alleged possession of the plaintiff-opposite party about the said 2 acres of land. The application for injunction was opposed and objections to the application had been filed by the defendant who is the revision petitioner in this Court. The defendant revisionist also filed an Affidavit in support of his objections. The defendant did admit the ownership and possession of the plaintiffs over 4 acres of land in Sy. No. 99 which had been admitted sold in favour of the plaintiffs by the defendants vide the sale deed dt.10-2-1950. The defendent admitted the possession of the plaintiff over that land which was the subject matter of the above mentioned sale deed dt.10-2-1950. But defendants categorically denied the entering into any such agreement as agreement dt.22-7-1989 as well as denying the execution of the agreement dt.22-7-1989 in favour of the plaintiffs opposite party. The defendants revisionist also denied the receipt of the sale consideration as well as the factum of delivery of possession of 2 acres of land which has been the subject matter of alleged agreement dt.22-7-1989. The defendant-revisionist's case has been that the agreement has been a forged document created with unlterior purpose of grabing the said property. The defendants revisionists further took the plea that if temporary injunction is granted it is likely to cause irreparable loss and injury to the defendants.

(3.) The learned Munsiff after having heard the Counsel for the parties and having looked into the records, opined that as regards the 2 acres of land in respect of which the agreement of sale deed dt. 22-7-1989 is said to have been executed the plaintiff applicant did not acquire any title by virtue of that agreement and that the said agreement and its execution has been challenged by the defendants. It recorded the finding: