KEDARNATH GUPTA Vs. RAM BALI GUPTA

JUDGEMENT

(1.) THE applicant/defendant has preferred this civil revision against the order dated 11-02-1998 passed in M.A.No. 40/96 by the learned II Additional District Judge, Ambikapur and by which the appeal preferred by the non-applicants/plaintiffs against the order dated 15-09-1995 passed in M.J.C. (Civil) No. 07/93 by the learned III Civil Judge Class-II, Ambikapur has been allowed and the applicant/ defendant has been directed to be detained in civil prison for a period of two months for willful violation of the order of temporary injunction in favour of the non-applicants/plaintiffs and against the applicant/defendant by the trial Court. (Parties hereinafter shall be referred to as per their description before the trial Court.)

(2.) LEARNED counsel for the applicant has impugned the above order on the following grounds;

(3.) LEARNED Civil Judge rejected the application by recording a finding that it is not proved that the defendant has constructed any wall or roof in violation of the order of temporary injunction dated 28-09-1992. However, from perusal of the document of Ex. P/l it is not clear as to which competent authority has prepared the same or the plaintiffs have themselves made it and in the above map Khasra No. 1390 is not mentioned, therefore no inference can be drawn that the part shown in black in the said map pertains to Khasra No. 1390 or not. It has also been observed that the plaintiff No. 1 (P.W. 2) Ram Bali Gupta has admitted in his cross-examination that no demarcation was done to ascertain that the disputed wall is constructed over Khasra No. 1390 and even the commissioner who conducted local enquiry did not conduct any investigation to ascertain as to on which Khasra No. the disputed wall exists. Even from perusal of the map attached with the application of Ex. P/5 the plaintiffs have shown the disputed wall on the eastern part of Khasra No. 1390 and temporary injunction with respect to the above wall has been sought whereas from perusal of the map filed in the suit No. 16-A/88 this wall has not been marked by black colour and therefore, it is not proved that the part shown by black colour in the map of the Ex. P/1 is part of Khasra No. 1390 and the oral evidence of P.W. 1 to the effect that after passing of the order of temporary injunction the defendant started construction from 28-06-1993, has been disbelieved. The report of the commissioner has been disbelieved on the ground that though the commissioner has given the report that the construction present over the wall is new construction over the old construction, however, it has not been reported as to how old new construction was and therefore, it has been held that it is not proved that any construction was made over the old wall after 28-09-1992.