SARANABASAYYA CHANDRASHEKHARAYYA HIREMATH Vs. BASANAGOUDA FAKKIRAGOUDA KEMPAGOUDAR

JUDGEMENT

(1.) HEARD Sri shivananda holding brief for Sri m. v. hiremath, learned counsel for the revisionist-applicant and Sri rasheed khan holding brief for Sri vigneshwara s. Shastry, learned counsel for the respondent.

(2.) THIS revision arises from the judgment and Order dated 5-3-1994 passed by Sri v. g. charati, learned civil judge, haven, in miscellaneous appeal No. 19 of 1993 allowing the appeal of the defendant and setting aside the Order dated 29-9-1993 passed by the learned munsiff, haveri on la. I moved in original suit no, 94 of 1992 granting the injunction. The appellate court set aside that Order and vacated the injunction. The plaintiff-revisionist had filed the suit No. 94 of 1991 for declaration and injunction against the defendant-opposite party claiming to be in possession and alleging that the defendant was interferring with his possession along with the copy of the plaint, the plaintiff filed the application for temporary injunction. The trial court on a perusal of the evidence held that the plaintiff has been in possession and wahiwat of the suit property and prima facie evidence establishes that the plaintiff was entitled to get the relief of temporary injunction as balance of convenience is also in his favour. It also held that damages, if any, to the defendant can be compensated and defendant will not suffer any irrepairable loss as compared to the hardship of the plaintiff. So it granted temporary injunction. The 1st appellate court on appeal being filed, set aside that order. It held that the registered lease deed coupled with the affidavit of the attesting witnesses of the lease deed namely the affidavit filed by the attesting witnesses to the effect that the defendant was put in possession as soon as defendant paid Rs. 10,000/- to the father of the plaintiff and thereafter defendant came into possession of the suit property. It also held that the evidence of the attesting witness has been ignored and as such, finding of the trial court was erroneous and held that the evidence produced by the defendant prima facie appears to rebut the presumption on which the plaintiff wanted to rely i. e. , the r. t. c. it set aside the Order of the trial court dated 29-9-1993 and held that the plaintiff not having prima facie shown to be in possession, he was not entitled to the relief of injunction. Feeling aggrieved from the trial court's Order, the plaintiff has come up in revision under Section 115.

(3.) I have heard Sri shivanand, as mentioned earner, for the applicant and Sri rasheed khan, learned counsel for the respondent. I have also perused the grounds for revision. Learned counsel for the applicant submitted that the finding as regards the question of possession is contrary to the presumption under Section 133 of the land revenue ACT and when in the r. t. c. applicant-revisionist's name has been mentioned as the owner and cultivator, the entry should have been given effect to and the court should have raised the presumption that the plaintiff has been in possession of the suit property. He also contended that the court should not have relied on an unregistered lease deed unless it has been established that lease was executed.