HOSALLAIAH Vs. BHEEMANNA AND OTHERS

JUDGEMENT

(1.) The plaintiff prayed for a temporary injunction in O.S. No. 222/1987 on the file of the Munsiff and J.M.F.C., Gubbi, and obtained the same against the defendants. The defendants entered appearance and filed l.A. 2 praying for vacating the temporary injunction inter alia contending that the plaintiff had obtained the same by fraudulent misrepresentation and concealment of facts. They also specifically pleaded that defendant-1 and his Grand-father had not sold the suit property and that the plaintiff was also not in possession of the suit schedule property. The learned Munsiff, however, acting on the affidavits of the neighbouring land owners and the entries in the R.T.C. extracts and the Register of Index of Lands rejected I.A.2. Aggrieved by that, the defendants filed the appeal in the Court of the Civil Judge, Tumkur, in M.A. No. 16/1988. The learned Appellate Judge on examining the material on record came to the conclusion that the plaintiff had not established, prima facie, his case for temporary injunction. Admittedly, no sale deed executed by defendant-1 or defendant-3 was produced before the Trial Court. On the other hand, the Appellate Court was guided by the averment in para 4 of the plaint in which it is stated that the plaintiff admitted that his right to cross or pass through the land of the defendants to the suit schedule properly was permissive, permission having been given by defendant-1. In that view of the matter he came to the conclusion that the Trial Court had acted perversely in ignoring the pleadings on both sides as well as relying upon the entries in registers which did not have any presumptive value to determine possession as oh the date of the suit. In that circumstance, he has reversed the finding of the Trial Court and allowed I.A.2 by which the temporary injunction obtained by the plaintiff has been vacated. It is in that circumstance the present revision petition is preferred.

(2.) In this Court, it is not disputed that no sale deed was produced before the Trial Court nor the Appellate Court, despite specific plea in the written statement that the defendants had not sold the suit property to the plaintiff nor that he was in possession. If evidence which should prima facie establish title and possession was not produced by the plaintiff, he cannot now make a grievance, if the Appellate Court takes serious note of it.

(3.) Similarly, if the. plaintiff himself pleads that his right of passage on the northern side of the defendants' land to reach the suit schedule land was permissive, than he cannot seek an injunction on the basis of such pleading. In this Court also a copy of the plaint is not produced to know whether the observation made by the learned Appellate Judge is erroneous.