ORDER :

The petitioner-defendant filed the present writ petition against the order dated 19.12.2018 passed by Civil Judge (Sr.Dn), Belur made in Miscellaneous Appeal No.30/2018 allowing the appeal by setting aside the order dated 04.12.2018 made in O.S.No.249/2018 on I.A.No.II granting injuction, restraining the defendant from putting up the construction of building by encroaching ‘B’ suit schedule property measuring East to West 50 feet and North to South 20 feet out of the ‘A’ schedule property, belonging to the plaintiff, pending disposal of the suit.

2. The respondent who is the plaintiff before the trial Court filed suit for declaration, permanent injunction, mandatory injunction and to deliver the possession of ‘B’ schedule property by raising various contentions. The defendant filed written statement denied the plaint averments and contended that the plaintiff is not the owner of the ‘B’ schedule property and defendant is the owner in possession of ‘B’ schedule property, after obtaining necessary plan and permission from the jurisdictional authorities, the construction is made. Therefore, he sought to dismiss the suit.

3. The Plaintiff also filed an application-I.A.No.II under Order 39 Rule 1 and 2 of the Code of Civil Procedure restraining the defendant and his representatives by an order of temporary injunction from constructing any house or building in the ‘B’ suit schedule property. The said application was resisted by the defendant. The trial Court considering the entire material on record, by the order dated 04.12.2018 dismissed the said application. Aggrieved by the said order, the plaintiff filed an appeal in M.A.No.30/2018 before the Lower Appellate Court. The Lower Appellate Court while allowing the application has virtually declared the plaintiff as owner of suit schedule properties and granted injunction for the first time. Hence, the present writ petition is filed.

4. I have heard the learned counsel appearing for the parties to the lis.

5. Sri.Mahesh B.J, learned counsel for the petitioner has contended that the impugned order passed by Lower Appellate Court reversing the order passed by the trial Court granting injunction for first time is errorneous and contrary to the material on record. He would further contend that the suit filed by the plaintiff is for declaration, permanent injunction, mandatory injunction and possession of ‘B’ suit schedule property and the very application filed for injunction would not arose. The trial Court has rightly rejected the application and the discretionary order passed by the trial Court was reversed by Lower Appellate Court without recording any finding that the order passed by the trial Court is perverse, illegal and contrary to the material on record. Therefore, he sought to allow the writ petition.

6. Per contra, Sri.Murthy D.Naik, learned counsel for the respondent sought to justify the impugned order passed by the Lower Appellate Court and contended that the trial Court has not properly appreciated the material produced on record. The Lower Appellate Court considered the entire material on record in proper perspective and granted injunction directing the defendant not to put up construction in ‘B’ schedule property, till disposal of the suit. The same is in accordance with law. Therefore, he sought to dismiss the writ petition.

7. Having heard the learned counsel appearing for the parties and in view of the rival contentions urged by them, the only point arises for consideration is:

“Whether the impugned order passed by the Lower Appellate Court is justified in granting injunction for the first time reversing the order of trial Court in the facts and circumstances of the present case”.

8. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.

9. It is not in dispute that the plaintiff-respondent filed a suit for declaration, permanent injunction, mandatory injunction and po