IRAGALA KOTAYYA Vs. UDDANTI SUBBAYYA

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by the plaintiff (respondent 1) for a declaration of his title to do services in the plaint-mentioned temple and also for a permanent injunction restraining defendants 1 and 2 from causing any obstruction to the plaintiff's enjoyment of item 1 in Schedule A and for some other reliefs. The plaintiff's suit was dismissed by the District Munsif, but on appeal, the plaintiff obtained an injunction against the defendants restraining them from interfering with his possession of item 1. To this extent alone, the appeal was allowed. It is contended by the appellants in this appeal, that the lower appellate Court's judgment is vitiated by an erroneous view of law taken by it. It is true that a suit under Section 9, Specific Relief Act, was filed by the present defendants 1 and 2 against the present plaintiff and that suit was dismissed : vide Ex. D. On the strength of this judgment, the lower appellate Court held that by reason of the omission of defendants 1 and 2 to file a suit for the recovery of the property within the period of limitation, they would be debarred from recovering possession of it from the plaintiff. In this view, it gave a decree in plaintiff's favour by way of an injunction, so that the plaintiff may be maintained in his possession. In a subsequent order made by that Court on a petition for a review, it is admitted that the view expressed in the judgment is a mistake. I think that the mere fact that the suit brought by defendants 1 and 2 under Section 9, Specific Relief Act, was dismissed, is not enough to presume that the plaintiff was in actual possession of item 1 at the date of the present suit. Unless it is clearly found upon the evidence on record that the plaintiff had such peaceable possession of this property on the date of suit, an injunction in the form given by the lower appellate Court would not be justified. There is no such finding given by the lower appellate Court. The judgment is therefore defective and the decree appealed against cannot be sustained in the absence of a clear finding as regards possession.

(2.) THE decree of the lower appellate Court is set aside and the appeal is remanded to that Court for a re-hearing and disposal according to law. THE appellants costs in this appeal should be paid by the respondents and the other costs will follow the result of the appeal in the lower appellate Court.