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Judgment
A.N. Venugopala Gowda, J.—Respondent filed O.S. 112/04 in the Court of Civil Judge (Jr. Dn.), Thirthahalli, against B.N. Jagadish, the husband of the 1st Petitioner and father of Petitioners 2 and 3, in respect of the land bearing Sy. No. 4 measuring 20 guntas, situated at Bharathipura Village, Kasaba Hobli, Thirthahalli Taluk, seeking relief of permanent injunction. I.A.1 was filed seeking an order of temporary injunction. The Defendant filed the statement of objections to I.A.1 and also the written statement. The Trial Court finding I.A.1 to be untenable, passed an order dated 24.2.05 and rejected the prayer for grant of temporary injunction. Aggrieved, the Respondent fried M.A. 18/05 in the Court of Civil Judge (Sr. Dn.), Shimoga. The said appeal was dismissed by judgment dated 15.9.06, which was questioned by the Respondent in W.P.14887/06. The said writ petition was allowed on 7.11.07 and the matter was remitted to the Court below to consider the documents produced in the appeal. The Court below having heard the matter, has passed the judgment dated 17.4.10, whereby, it has allowed the appeal and has set aside the order impugned before it. The Petitioners were restrained from interfering with the possession and enjoyment of the suit property by the Respondent. Aggrieved, the legal representatives of the Defendant have filed this writ petition.
Heard the learned Counsel on both sides and perused the writ petition papers.
The main reason which has weighed with the Court below to pass the impugned judgment is that, the survey authority having conducted the survey of suit property, prepared a mahazar and the Defendant is a signatory to the mahazar, which proceeding has not been questioned by the Defendant.
Sri K.V. Narasimhan, learned Counsel appearing for the Respondent, having secured the survey record and the mahazar drawn when the survey of the suit property was conducted, after perusal, does Concede that the Defendant is not a signatory to the mahazar drawn by the survey authority. Thus, it is apparent that the appellate Court by misdirecting itself i.e., by a wrong reading of the mahazar, has passed the impugned judgment. The non application of mind and non consideration of the matter in the correct perspective, is apparent. Hence, the impugned judgment being perverse cannot be sustained.
In the result, the writ petition stands allowed. The impugned judgment stands quashed.
The parties are directed to appear before the Court below on 6.12.10, on which date, M.A.18/05 shall be taken on Board and the matter heard and decided in accordance with law as early as practicable and at any event, within a period of 6 weeks from the date of first appearance of the parties.
Contentions of both the parties are kept open for consideration.