CITY MUNICIPAL COUNCIL SHIMOGA Vs. LAXMINARAYANA TIWARI

JUDGEMENT

(1.) These are two revision petitions arising out of an application for temporary injunction in a suit for declaration of title and permanent injunction and, in the alternative, for possesssion.

(2.) The suit property is a site forming a part of Muncipal Door No. 1215 in Shimoga Town, which contains some Box shops. The trial Court after hearing the defendant, which is the City Muncipal Council, Shimoga, dissolved the order of ad interim injunction. The plaintiffs preferred an appeal to the Court of the District Judge, Shimoga in MANo.23 of 1975. In that appeal, the learned District Judge affirmed the order of the trial Court so far as the vacant portion of the site is concerned and reversed the order with regard to the Box shops. Aggrieved by the said order, both parties have preferred the above revision petitions.

(3.) In respect of this very subject-matter there was a prior suit instituted by the predecessors-in-interest of the present plaintiffs against the Town Muncipal Council of Shimoga. That suit was OSNo.412 of 1959 on the file of the Court of the Munsiff, Shimoga ; the relief prayed for was permanent injunction restraining the Muncipal Council from interfering with the possession o>f the plaintiffs. That matter ultimately came up to this Court in RSA No.1299 of 1969, disposed of on 17-4-1973. One of the points for determination in the prior suit was whether the plaintiffs were in lawful possession of the suit property on the date of the suit, and the finding on the said issue was against the plaintiffs and in favour of the Muncipal Council, The appeal by the plaintiffs was dismissed by this Court affirming the finding of the lower Court. After the unsuccessful termination of the suit for injunction, the plaintiffs started a second round of litigation by filing a suit for declaration of title and permanent injunction and in the alternative, for possession, and in that suit applied for interim injunction. The learned Civil Judge dismissed that application in view of the earlier finding in the prior litigation that the plaintiffs were not in lawful possession of the suit property. That order has been modified by the learned District Judge, in appeal, holding that on considerations of equity, the defendent Muncipal Council should be' restrained from interfering with the plaintiffs' possession of the Box Shops.