PARAMANANDA PATRA Vs. DAITARY PRASAD PATRA

JUDGEMENT

(1.) This revision is directed against the order of the learned District Judge, Balasore virtually affirming an order of temporary injunction passed under Order 39, Rule 1, C.P.C. by stating:

(2.) The petitioners, as plaintiffs, instituted Title Suit No. 382 of 1991-I against the opposite parties and others for partition of certain properties including M.S. Plot No. 603 (Gharabari) under Khata No. 206 corresponding to C.S. Plot No. 548 of mouza Sadmapur and M.S. Plot Nos. 692 (Baje phasal), 600 (Baje phasal) and 605 (Baje phasal) under Khata No. 6 of the same mouza and also M.S. Plot No. 3 (patra jangal) under Khata No. 89 of mouza Ghadasahi. Along with the plaint they filed an application under Order 39, Rule 1, C.P.C. praying for issue of a temporary injunction restraining the present opposite parties from constructing any pucca house on M.S. Plot No. 603 and cutting any tree, from the aforesaid remaining plots on the allegations that the aforesaid plots with trees standing on some of them were the joint family properties of the parties and although the opposite parties were in amicable possession of the western side thatched house situated on M.S. Plot No. 603, they pulled down the same and started constructing a pucca house thereon to their (petitioners) detriment and were threatening to cut the valuable trees standing on the remaining aforesaid plots. The opposite parties denied having threatened to cut trees from any of the suit plots. As regards the construction of a pucca house on that part of plot No. 603 where their old thatched house in their occupation was existing, their case was that since the thatched house was very very old and was not suitable for their accommodation, they pulled down the same for the purpose of constructing a pucca house leaving a space of 3 feet from the common compound wall lying to the east of their proposed construction. After hearing both the parties, the learned Subordinate Judge, Balasore before whom the application for temporary injunction in Misc. Case No. 16 of 1992 came up for consideration passed the following restraint order :

(3.) In an application under Order 39, Rule 1, C.P.C. a temporary injunction may be issued on petitioner's proving: