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2001 DIGILAW 856 (PAT)

Bibi Jinatun Nissa v. Bibi Tajbun Nissa

2001-09-11

P.K.DEB

body2001
Judgment 1. Heard. 2. This revision petition has been preferred against the appellate order passed by the 3rd Additional District Judge, Bettiah, West Champaran in Misc. Appeal No. 20/95 whereby the order dated 9.5.1995 passed by the 1st Addl. Munsif, Bettiah in Misc. Case No. 42 of 1992 has been set aside. 3. Petitioner is the plaintiff in Title Suit No. 45/92 which has been filed for declaration of title, possession etc. in respect of the suit property. There was also prayer for injunction restraining the defendants-opposite parties not to make further constructions over the suit property. After hearing both the parties, the court of Munsif passed an order on 23.9.1992 for maintenance of status quo in respect of the suit house. It may be mentioned here that before such order was passed regarding status quo, an Advocate Commissioner was appointed and her report was also accepted. Then a petition was filed under Order XXXIX Rule 2A of the Code of Civil Procedure alleging that the order of status quo has been violated by the opposite parties by constructing grills, shutters etc. in the house and also further constructing a septic tank including lavatory etc. On the basis of that petition under order XXXIX Rule 2A of the Code of Civil Procedure Misc. Case No. 42 of 1992 was registered and notices of show cause were issued to the opposite parties. They appeared and denied ail the allegations made in the petition and according to them after the status quo order was passed no further constructions were made rather all constructions as regards shutterings, grills, septic tank etc. were made before 23.9.1992, after taking prior permission from the Municipality. Both parties adduced evidence. There were some contradictions in the evidence of P.W.I and P.W.2, who were the labour and the mason in construction of the house. Opposite parties adduced evidence and produced papers regarding construction of septic tank through Sulabh Internationa! and certificate to that effect had also been produced and proved. The Trial Court held that the allegations have been proved from the side of the petitioner regarding violation of injunction disbelieving the certificate issued by the Sulabh International on the ground that the agreement between the Opposite Parties and the Sulabh International had not been proved. On the basis of the order of the Addl. The Trial Court held that the allegations have been proved from the side of the petitioner regarding violation of injunction disbelieving the certificate issued by the Sulabh International on the ground that the agreement between the Opposite Parties and the Sulabh International had not been proved. On the basis of the order of the Addl. Munsif, it appears that the learned Munsif had misconceived the foundation of the proceedings under Order XXXIX Rule 2A of the Code of Civil Procedure. It is a quasi criminal proceeding. Whatever allegations have been brought from the side of the petitioner should be proved beyond all reasonable doubts against the opposite parties. Defect in the defence evidence may not be of much avail in such sort of proceedings. In that way appellate court has further scrutinised very closely the evidence of both the parties and then came to the finding that the petitioner could not be able to prove that the further constructions had been made after the order of status quo was passed. There was no date mentioned regarding the start of the constructions and completion of the same from the side of the petitioner and on proper appreciation of the orders of both the courts below, I am of the firm view that the learned appellate court has taken the right view in the matter and his order being not suffered from any jurisdictional error or error apparent on the face of the record, there is nothing to interfere under the revisional jurisdiction as contemplated under Section 115 of the Code of Civil Procedure. 4. Thus there is no force in this revision petition. Hence, the same is rejected.