SHEOBRICH SINGH Vs. BASGIT SINGH

JUDGEMENT

(1.) This civil revision application arises out of an order passed by the learned second Additional Munsif of Arrah, on the 8th of January, 1953, in Miscellaneous Case No. 7 of 1952, in the following circumstances. The petitioner was the plaintiff in a suit for declaration of title and recovery of possession over an area of one katha comprised in plot Nos. 2448 and 2452 of village Kurmuri in the district of Shahabad. The allegation of the plaintiff was that these two plots of land belonged to him. The defendants, however, who are opposite party in the present application, encroached upon the disputed portion by demolishing the boundary ridge between these two plots and plot No. 2451 belonging to the defendants. The suit was pending in the Court of the leaned Munsif, First Court, Arrah, and an injunction was issued by that Court at the instance of the petitioner on the 25th of March 1952 restraining the defendants from going on with their construction by way of digging foundation and raising walls etc.over the encroached portion. The petitioner applied subsequently under Order 39, Rule 2, Sub-rule (3) of the Code of Civil Procedure for action against the defendants-opposite party on the allegation that they had committed breach of the order of injunction, and as such they were liable to be punished under the aforesaid provision of the Code of Civil Procedure. This gave rise to Miscellaneous Case No. 14 of 1952, which was started on the 23rd of April, 1952. It appears, however, that on the 28th of April, 1952, the suit was transferred under the orders of the District Judge of Shahabad to the file of the second Additional Munsif, Arrah, for disposal. The allegation of the plaintiff in his petition was that the defendants had constructed nad charan and also put a sehan in the disputed land. The learned Additional Munsif, however, by order dated the 10th June, 1952, dismissed the miscellaneous case holding that the plaintiff had failed to prove his allegation that the, construction complained of had been put up after the date of the order of issue of injunction. The learned Munsif passed the order after holding regular enquiry and recording evidence led by the parties.

(2.) The plaintiff applied, however, again under the same provision of law, namely, Order 39, Rule 2(3) of the Code of Civil Procedure for fresh action against the opposite party on the allegation that they had put up nad charan and sehan and also constructed a roof over the verandah as also a staircase. This application was made on the 24th of November, 1952, and gave rise to Miscellaneous Case No. 7 of 1952. The opposite party filed a rejoinder denying the allegations.

(3.) The opposite party, however, had preferred an appeal against the order of injunction and the learned Additional Subordinate Judge, Fifth Court, Arrah, allowed the appeal. The case was remanded to the court of the learned Munsif with a clear direction that if the disputed construction was found to lie in plot Nos. 2448 and 2452, the order of injunction was to continue as before and in case it was found to lie in plot No. 2451, which was claimed by the defendants, the order of injunction was to be vacated. On remand, the learned Munsif issued a fresh commission in accordance with the direction of the appellate Court to the same pleader commissioner Mr. Amir Chand Lal to ascertain the position in the light of the observation made by the appellate Court. Subsequently, the defendants also filed a petition praying that fixed points for the measurement of the plots with reference to the survey map should be reliable points and made certain suggestions as to the fixed points to be accepted by the learned pleader commissioner. The Court accepted the prayer and issued direction to that effect to the learned pleader commissioner. The learned pleader commissioner submitted a report in the light of this direction (exhibit A) on the 22nd August, 1952, together with a map attached to the report. According to this report, none of the alleged constructions fell within plot Nos. 2448 and 2452 but that they were situate in plot No. 2451 belonging to the defendants-opposite party. The learned Munsif, Mr. G. Prasad. however, rejected the report of the commissioner and affirm-ed the order of injunction. The defendants went up in appeal against the order of the learned Additional Munsif and the learned Additional Subordinate Judge, Arrah, by his judgment and order dated the 13th March, 1953, vacated the order of injunction accepting the report of the learned pleader commissioner for the purposes of the injunction matter.