Bichitrananda Swain and Others vs Jatakrushna Swain

P.K. Misra, J.—Plaintiffs have filed this revision. During pendency of the suit, an order of injunction had been issued directing the present opposite party not to carry on further construction of the house encroaching the suit land. An application under Order 39, Rule 2-A, C.P.C., was filed by the present petitioners alleging that in spite of the order of injunction, the opposite party proceeded to complete the construction which had been made upto lintel level at the time when injunction order was passed. The trial Court found that the construction was completed in spite of the order of injunction and accordingly directed that the opposite party would remain under civil imprisonment for a period of two months. The present opposite party filed an appeal which has been allowed and the order imposing punishment has been vacated, mainly on the ground that the Commissioner who had visited the place was not a Survey-knowing Commissioner.

The question as to whether the disputed structure appertains to plaintiffs land or defendant''s land is a matter to be decided in the trial after evidence is recorded. Prima facie, however, it appears that the order of injunction had been violated. The Commissioner who had been deputed was not required to measure the land. Without entering into this question as to whether the construction is on the land of the plaintiffs or any part of it is on the land of the plaintiffs or of the defendant which is a matter to be decided by the trial Court, prima facie, it can be said that the defendant has completed the construction in violation of the order of injunction. The observation of the lower appellate Court that the Commissioner not being a survey-knowing Commissioner had not measured the land is irrelevant.

Since in spite of the order of injunction construction was completed, appropriate action under Order 39, Rule 2-A, C.P.C. was required to be taken. However, the direction of the trial Court directing imprisonment for a period of two months appears to be grossly excessive. I think, interest of justice would be served by directing that property of the defendant to the extent of Ac. 0.05 decimals other than the disputed property shall remain under attachment for a period of six months from the date of attachment. For the aforesaid purpose, the defendant shall be given opportunity of furnishing details of other property and the plaintiffs may file objection for the purpose of identifying the property. It is made clear that the effect of attachment is to prohibit the present opposite party from alienating the property, but there would not be any bar on the part of the defendant-opposite party to enjoy the property and to remain in possession.

The suit should be disposed of within six months in accordance with law on the basis of evidence on record without being influenced by the fact that an order of attachment has been passed under Order 39, Rule 2-A, C.P.C. The L.C.R. shall be sent back immediately. The Civil Revision is accordingly disposed of. No costs.

Urgent certified copy of the order may be given on proper application.