MAGUNI NAIK Vs. CHEMEI NAIK AND ORS.

JUDGEMENT

(1.) THE Appellant in the lower appellate Court is the Petitioner here. The facts, in brief, are that Plaintiffs brought a suit in their representative capacity on behalf of the villagers of Baulanga and Podana for a declaration that they are entitled to use the suit land measuring about 14 decimals out of 75 decimals appertaining to plot No. 908 as part of the path way and also prayed for a permanent injunction restraining Defendants from putting any fence or other obstruction on the suit land or in any other manner obstruct them from using the same as a path. After institution of the suit, they obtained an ex parte order of temporary injunction on 13 -12 -1966 restraining Defendants -opposite parties in the aforesaid manner. This temporary injunction order was served on the Petitioner by affixture on 22 -12 -1966. On 3 -1 -1967 they filed a petition under Order 39, Rule 2, Code of Civil Procedure read with Sub -section 151, Code of Civil Procedure alleging that after service of the injunction order, opposite parties committed violation of the same on 24 -12 -1966 by raising two brick walls at the southern and northern limits of the suit land, besides erecting two temporary sheds and planting Borne painting saplings. On these allegations, they prayed for taking action for violation of the order of injunction and to direct restoration of the status quo ante. Petitioner, in his objection dated 17 -1 -1967, denied the alleged violation of the injunction order and asserted that the walls etc. have been in existence since about 20 years and so also the plantain garden existed since long before the date of the injunction order. On a consideration of the evidence adduced by both parties, the learned Munsif held that opposite parties violated the order of injunction by making the constructions and planting the trees etc. subsequent to the date of service of the order of temporary injunction and directed attachment of the properties of opposite parties 2, 3 and 5 besides directing restoration of the status quo ante by demolition of the constructions. An appeal was preferred against this order. The lower appellate Court agreed with the findings of the trial Court that the constructions were subsequent to and in violation of the temporary injunction order, and accordingly, dismissed the appeal. The present revision has been filed against the decision of the lower appellate Court confirming the order of the trial Court.

(2.) THE main contention of learned Counsel for Petitioner is that the Courts below have not properly approached or appreciated the evidence, and in spite of the fact that the evidence on the side of Plaintiffs was considered interested, they have erred in disbelieving the version of Petitioner that the constructions existed since before the order of injunction. It has also been contended that the Courts below have committed an error of record in not taking into consideration the existence of a fence on the eastern side of the disputed land. Lastly, it has been argued that Ext. 4 filed by Plaintiffs before the S.D.O., Kendrapara on 28.12.1966 alleging construction of walls and planting of plantain trees etc. in violation of the injunction order was a deliberate attempt to create evidence in support of such a case to be put forth in future, as no prayer for any specific relief against opposite parties was made. For opposite parties, it is contended that both the Courts below have considered the evidence adduced by the parties and arrived at the conclusion that the constructions did not exist from before and were made on 2 -1 -12.1966 in violation of the injunction order.

(3.) COMING to the merits, the admitted case is that plot No. 908 originally constituted the Anabadi of the zamindar. Hrudananda, a brother of the present Petitioner, obtained a lease of 16 decimals out of this plot including the 14 decimals in dispute. In 1957, as there was some dispute between Hrudananda and villagers, the former filed a suit for a declaration of his exclusive right to the 16 decimals. Ultimately, the suit was compromised between Hrudananda and the present Plaintiffs who represent the villagers, and a compromise decree (Ext. 6) was passed. Under the compromise decree, Hrudananda got only 2 decimals while the remaining 14 decimals which constitute the subject matter of the present dispute was declared to be the part of the land constituting the village path. Petitioner's case is that this compromise by Hrudananda with Plaintiffs was a collusive one as by the date of compromise differences had arisen between him and Hrudananda. This question can be considered only in the suit and not at this preliminary stage. The compromise decree prima facie shows that Plaintiffs' brother acknowledged the 14 decimals now in dispute as part of the village path. Subsequently there was a proceeding under Section 144, Code of Criminal Procedure which preceded the institution of the present suit. Ext. 5 is the order and Ext. 7 is the notice of the said proceeding. In that proceeding the prohibitory order was passed against the Petitioner. The compromise decree and the order under Section 144, Code of Criminal Procedure lend considerable support to the Plaintiffs' version that no brick walls or trees existed on that land. Taking these documents into consideration, the Courts below have accepted the evidence adduced on the side of Plaintiffs that the construction of the brick walls and planting of the plantain trees took place subsequent to 22 -12 -1966 and they did not exist as contended by Petitioner since the last 20 years or so. The alleged error of record sought to be emphasised relates to ignoring consideration of the existence of a fence on the eastern Bide of the disputed land. There is no evidence to show that such a fence exists. During examination of the p.ws., no suggestion to them was made that any such fence existed. Therefore, failure to consider existence of such a fence cannot amount to an error of record. Thus, even on merits, the conclusion arrived at by the Courts below is quite reasonable and legitimate and I do not find any reason to interfere.