N SEETHARAMA SHETTY Vs. UPENDRA MADHAV KINI

JUDGEMENT

(1.) THIS is a defendant's appeal against the orders passed by the 12th Additional Civil Judge on i. A. IX in O. S. No. 62 of 1990.

(2.) RESPONDENTS herein filed the suit O. S. No. 62 of 1990 against the appellants for permanent injunction and for declaration regarding the two sale deeds executed by one Lalithamma in favour of the appellants herein as a got up document. In the suit they had filed an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure against the appellants for an order of temporary injunction to restrain the appellants from interfering with their possession and enjoyment of property described in the plaint as 'a' schedule property and restrain them from interfering with their right of passage described as 'c' schedule property, and also prevent them from putting up any construction in respect of properties in possession of the appellants. Upon notice of the suit and the application, appellants entered their defence and objected for granting of temporary injunction. Learned Judge after hearing the parties by his order dated 9-2-1998 has restrained the appellants from interfering with respondents' possession of 'a' schedule property and the respondents using common passage in the 'c' schedule property. However he has rejected the last prayer to restrain the appellants from putting up construction in the property in their possession. This order is under challenge.

(3.) SRI Manjunath, learned Counsel appearing for the appellants contended that the order of the learned Judge granting injunction cannot be supported from the material on record, and in particular his main objection is to the finding of learned Judge that respondents have a 'right of passage' without there being any prima facie material and granting of injunction on that basis according to him, learned Judge was not justified in holding that the respondents plaintiffs have a "right of way" in the said lands which is a "declaration of easement".