ORDER

Defendants in OS No.95 of 2016 on the file of the learned Principal Civil Judge and JMFC, KGF, are impugning the judgment dated 05.12.2016 passed in MA No.6 of 2016 on the file of the learned Additional Senior Civil Judge and JMFC, KGF allowing the appeal, setting aside the order passed by the Trial Court and granting temporary injunction against the defendants from interfering with the possession and enjoyment of the schedule property by the plaintiff and not to interfere with the construction work undertaken by the plaintiff.

2. Heard Sri. Harinath M S, learned counsel for the petitioners and Sri. Vasanth V Fernandes for Smt. Veenakumari M, learned counsel for the respondent. Perused the materials on record.

3. Learned counsel for the petitioners contended that the petitioners are defendants before the Trial Court. The plaintiff filed the suit OS No.95 of 2016 and sought for granting permanent injunction. An application was filed seeking temporary injunction. The said application came to be rejected. Impugning the said order, the plaintiff has preferred an appeal in MA No.6 of 2016. The First Appellate Court without considering the merits of the case, allowed the appeal and granted temporary injunction. Being aggrieved by the same, the defendants are before this Court.

4. Learned counsel submitted that the plaintiff and defendants are owning sites adjourning one another. On the eastern side of their site, there is a pipe line and public road leading from Kyasamballi village to KGF. This is the only public way available for the defendants to reach either Kyasamballi or KGF. The plaintiff started constructing the building encroaching the public road. Immediately, the defendants have filed OS No.86 of 2016 seeking permanent injunction against the plaintiff. An application was filed seeking temporary injunction and the said application was allowed by the Trial Court granting temporary injunction restraining the plaintiff herein from proceeding with construction of the building encroaching the public way. The plaintiff has filed the present suit and sought for temporary injunction against the defendants suppressing the fact of filing OS No.86 of 2016 and granting of temporary injunction against him. Therefore, the Trial Court rightly rejected the claim of the plaintiff filed for temporary injunction, but the First Appellate Court without considering these facts and circumstances proceeded to allow the appeal and granted temporary injunction, which is bad under law.

5. Learned counsel has filed a memo along with the endorsement dated 16.05.2017 issued by the Assistant Executive Engineer, Water supply and Underground Drainage, Sub Division Bethmangala, to the effect that on the basis of the objections filed by an advocate Sri N. Srinath of KGF regarding encroachment of pipeline road by the plaintiff, a survey was undertaken on 09.03.2017 and it is stated that the plaintiff has encroached the public way. The report submitted by the Assistant Executive Engineer along with sketch dated 25.05.2017 also supports such contention. Under such circumstances, the First Appellate Court committed an error in allowing the appeal. Hence, he prays for allowing the petition by setting aside the impugned order.

6. Per contra, learned counsel for the respondent -

plaintiff opposing the petition submitted that the description of the respondent in the writ petition as Y Jayarama Reddy, itself is wrong, because, plaintiff is not Y Jayarama Reddy. He is only Jayarama Reddy. The plaintiff purchased the suit schedule property under the registered sale deed dated 03.11.2004 from Smt Rathnamma which is bearing katha No.1226/27 measuring East to West 12 feet and North to South 43 feet. Both on Eastern and Southern side, pipeline road is running and on the western side, the property of the earlier owner Y Jayarama Reddy and the property of one Sri Ganesh are situated. The defendant had purchased the property from Sri Ananda Reddy during 2012 who in turn had