INDA BEWA Vs. BHARMANANDA

JUDGEMENT

(1.) The opposite party instituted Title Suit No. 140 of 1978 in the Court of the Munsif, First Court, Cuttack, seeking a decree for permanent injunction restraining the petitioners from entering upon the disputed property which was plot No. 743 in mouza Bisinabar in the town of Cuttack and from interfering with his possession. On a motion for temporary injunction, the trial court after hearing both the parties issued an order of temporary injunction on 18-1-1979. The petitioners have their plot on plot No. 745 which is adjacent to the disputed plot No. 743. The opposite party alleged that despite the order of temporary injunction, the petitioners entered upon the disputed property around 11 a.m. on 31-3-1981, broke the eastern wall of one of the rooms standing on plot No. 743. The opposite party thereupon filed an application under Order 39, Rule 2A of the Code of Civil Procedure for punishing the petitioners for disobedience of the order of temporary injunction. In course of the proceeding, a pleader Commissioner was deputed to submit a report. He opined that the eastern side wall of the room had been broken within a month previous to his visit on 23-4-1981. An opening had been made in the wall etc. The petitioners opposed the motion for punishment alleging that the land had not been demarcated. Inasmuch as reference to the pleader Commissioner was made in relation to plot No. 745 and inasmuch as only status quo had been ordered and they were in possession, there was no violation as alleged. Four witnesses were examined on behalf of the opposite party and one on behalf of the petitioners.

(2.) Upon a consideration of the evidence, the learned Munsif rejected the application seeking punishment on the petitioners. On appeal by the opposite party, the learned Additional District Judge, Cuttack, reversing the decision of the trial court and accepting the appeal, held that the petitioners had violated the order of temporary injunction and directed attachment of the property of the petitioners for one year and in case of further disobedience, the property attached would be sold in public auction and compensation as deemed proper would be awarded to the injured party. This revision is directed against the appellate order.

(3.) Mr. M.M. Sahu, the learned counsel for the petitioners, urged that an appeal against an order refusing to take action under Order 39, Rule 2A was incompetent and the evidence on record did not justify the conclusion. Mr. B.H. Mohanty, the learned counsel for the opposite party, repelled the submission contending that an appeal was competent and having regard to the scope of revisional jurisdiction, it is not open to the petitioners to assail the conclusion of the appellate court on pure question of fact. Let me dispose of the second contention first. It is said that there were discrepancies in the evidence adduced by the opposite party. There were inconsistencies; material witness was not examined; contradictions did abound but were ignored by the appellate court and the probabilities were ignored.