JUDGMENT : D.M. Patnaik, J. - Defendant No. 6 in the original suit for partition assails the order dated 24.7.93 of the Additional Sub-Judge, Puri passed under Order 39, Rule 2(a) of the CPC directing the attachment of his property for violating the order of injunction passed on 11.3.86. 2. Heard Mr. Pati, learned Counsel for Appellant Defendant No. 6 and Mr. B.B. Das. learned Counsel appearing for the Respondents. Perused the impugned order and the evidence of the witnesses. 3. The finding of the Court below that Appellant-Defendant No. 6 violated the injunction order is based on no satisfactory material on record, but is the result of conjecture and surmises drawn. This is as follows: 4. The Plaintiffs filed the suit for partition on the ground that the property was liable to be partitioned since both the parties were the purchasers from the common vendor. Some of the Defendants filed the petition for injunction with a prayer that Defendant No. 6 and others should not be allowed to carry on any new construction on the disputed land until disposal of the suit. The Court below by order dated 8.9.97 passed the following order: Under such circumstances, I think it is just and proper in the instant case not to allow both parties to have new constructions on the suit land. I may make it clear that repair of the building will not come within the purview of new construction in the instant case. To be more clear, no new house shall be constructed on the disputed land. Hence order. 5. The main question for decision before the Court was whether the present Appellant carried on any new construction after order dated 11.3.86 or in the worst case the order dated 8.9.87. The Petitioner in the misc. case examined four witnesses including Petitioner No. 2, the party. None of the witnesses has stated if the new construction alleged to have been carried on was after the passing of the status quo order on 11.3.86 or after the second order dated 8.9.87. The onus to prove this essential fact was on the Petitioner which he has not discharged. Learned Additional Sub Judge has drawn a presumption from the mere fact that Defendant No. 6 applied to the Committee for a licence to run a lodge in the eight rooms. The onus to prove this essential fact was on the Petitioner which he has not discharged. Learned Additional Sub Judge has drawn a presumption from the mere fact that Defendant No. 6 applied to the Committee for a licence to run a lodge in the eight rooms. It is not disputed by the parties that before purchase, some rooms existed and the parties have purchased the respective portions of the same land having existing rooms. That apart, one of the Petitioners was examined as P.W. No. 2. He stated in para 31 of the cross examination hat the work started sometime in January or February, 1986 and further he could not give the exact date. This positively shows that the alleged constructions, if any, was before the date of passing of the impugned order. I may say that the provisions for punishment for violating the order of injunction are to be strictly applied and this should be proved by preponderance of probability. In the present case the Petitioner should have proved the new construction by positive evidence as to when the construction commenced and in absence of such positive evidence, drawing of presumption or surmise is not permissible. On the fact of this doubtful evidence it was error on the part of the learned Additional Sub-Judge to hold that the present Appellant violated the order of injunction. 6. In the result, the appeal is allowed. The impugned order of the learned Additional Sub-Judge, Puri is set aside, but without any cost. The L.C.R. be sent back forthwith. Final Result : Allowed