JAWAD RAHIM, J, J. ( 1 ) THIS revision u/s. 115 of the Code of civil Procedure is directed against order passed in M. A. No. 72/2001 dated 9. 2. 2004 by the learned Principal civil Judge (Sr. Dn ). , Bangalore Rural District at Bangalore confirming the order dated 6. 7. 2001 passed on IA no. VI in O. S. No. 245/92 by the Learned Principal Civil Judge (Jr. Dn.), at Anekal, directing petitioner be detained in civil prison for a term of ten days for dis-obedience of interim order. ( 2 ) THE Factual matrix manifesting from the record indictes the following :- One M. Subbarayan Instituted the suit before the Learned principal Civil Judge (Jr. Dn.), at Anekal initially seeking a decree to restrain the defendant and others from interfering with his possession of the property described in schedule and for costs. He claims title and ownership in respect of land in Sy. No. 61/1 measuring an extent of 4 acres 27 guntas situated in Hebbagodi village, Attibele Hobli, Anekal Taluk contending that the defendant, who had no manner of right, title or interest in the schedule property was attempting to interfere with his possession so as to widen the road forming the northern boundary of the plaintiff property. The attempt of the defendant if unchecked would result in plaintiff loosing his valuable property and defendant acquiring illegally the portion beyond 15 feet of the road. In this regard, he referred to attempt made by the defendant before filing of the suit and thus expressed urgency. ( 3 ) AN application was filed under order 39 Rules 1 and 2 of code of civil Procedure seeking grant of ad-interim injunctive order pending consideration of the suit on merits. It appears that the Learned Principal Civil Judge (Jr. Dn.), at Anekal considered the Interlocutory Application, formed opinion that a prima-facie case was made out and as there was urgency dispensed with prior notice to the defendant and granted an order of ad-interim injunction as prayed for in IA No.. Thereafter, the plaintiff was called upon to comply with the provisions under Order 39 Rule 3 (a) of Code of Civil Procedure to serve the notice to the defendant. Thereafter, the plaintiff was called upon to comply with the provisions under Order 39 Rule 3 (a) of Code of Civil Procedure to serve the notice to the defendant. ( 4 ) THE defendant having received the summons in the suit resisted the claim of the plaintiff and has filed a detailed statement, in which, he denied all averments made in the plaint and categorised the contention as false and malicious. ( 5 ) LATER on 12. 8. 1982, the plaintiff filed an application invoking under Order 39 Rule 2 (A) of the Code of Civil Procedure seeking action against the defendant alleging willful disobedience to the ad-interim order of injunction granted in the first instance. The said application though filed on 12. 8. 1992 was kept pending by the Learned Trial Judge. During this period, the Learned Trial judge has recorded evidence of both the sides on merits of the suit, but before disposing of the suit on the basis of the evidence already received, the Learned Trial Judge has considered the said application filed under Order 39 Rule 2 (A) of CPC and disposed of the same by the impugned order dated 6. 7. 2001 directing detention of the revision petitioner/defendant in civil prison for ten days. ( 6 ) I have heard Sri Tarakaram, learned Senior Advocate for the revision petitioner and none appeared for the respondent. ( 7 ) BEFORE I advert to the grounds urged by the Learned senior Counsel Sri Tarakaram, it is necessary to note the sequence of events as they unfolded leading to passing of the impugned order. ( 8 ) THE suit was filed on 23. 4. 1992. The application under order 39 Rule 1 and 2 of CPC filed along with the plaint was considered by the Trial Judge on the same day and ad-interim order of injunction has been passed, which reads thus:- "heard IA No. 2. "issue Ex. T.. order against the defendant restraining him from widening the road in the suit property over and above existing 15 feet road till further order". ( 9 ) ON 12. 8. 1992, the plaintiff-respondent had filed an application under Order 39 Rule 2 (A) of CPC complaining disobedience of the said order passed on 23. 4. 1992. The said application was kept pending. The parties have lead evidence from 10. 1. 1997. ( 9 ) ON 12. 8. 1992, the plaintiff-respondent had filed an application under Order 39 Rule 2 (A) of CPC complaining disobedience of the said order passed on 23. 4. 1992. The said application was kept pending. The parties have lead evidence from 10. 1. 1997. The application under Order 39 Rule 2 (A) of CPC-IA no. II has been disposed of by the Trial Judge on 6. 7. 2001 with the following order- "ia-6 filed U/o. 39 R. 2 (A) is allowed. And, the defendant is committed to civil prison for a period of 10 days". ( 10 ) THOUGH the suit was filed on 23. 4. 1992, the plaintiff amended the plaint on 22. 4. 1999 incorporating for the first time description of the road as 'b' schedule. Thus, the schedule mentioned in the original plaint has been substantially amended by the plaintiff seeking amendment thereby totally changing the description of the schedule property. The relief as sought in the original plaint has also been modified giving a go-by to the earlier prayer and seeking a new prayer, which includes the prayer to issue direction in the nature of mandatory injunction to dismantle or remove the road and the bridge constructed in the area measuring 13 feet. ( 11 ) THE plaintiff has tendered evidence and examined two witnesses. Based on the pleadings in the amended plaint and relied upon the documents, which are Registered Deed of Sale, mr. R. Extracts. RTC, Khatha, land Receipt, Patta, Encumbrance certificate and certain photographs. Those documents were to establish the ownership of the plaint schedule property. As against the said evidence, the defendant Muniyappa has examined himself as DW-1 and procuded in evidence Ex D1-communication from assistant Executive Engineer, Z. P. E. Sub-Division, Anekal (Zilla Panchayath) confirming that the road in question is a Government road and is maintained by Zilla Panchayath Department and the width of the road is 30 feet from drain to drain. This communication was sent to the defendant on 27. 3. 1997 and he also produced a Mahazar drawn by the Secretary, Hebbagodi village Panchayath after conducting physical inspection of the road in question in the presence of the villagers, who had complained of the illegal action of the plaintiff. The Certified copy of the mahazar of the Hebbagodi Village Panchayath along with sanctioned plan showing the lay-out is also produced. 1997 and he also produced a Mahazar drawn by the Secretary, Hebbagodi village Panchayath after conducting physical inspection of the road in question in the presence of the villagers, who had complained of the illegal action of the plaintiff. The Certified copy of the mahazar of the Hebbagodi Village Panchayath along with sanctioned plan showing the lay-out is also produced. These documents relate to the land in Sy. No. 61/1 and also the adjoining area. ( 12 ) NO doubt, the Learned Trial Judge has considered the evidence lead by the parties, but has referred mainly to the evidence of DW 3-PWD Engineer, who has stated in his evidence that in the year 1992 they (PWD) had not formed any road as stated by DW 1-defendant. The learned Trial Judge has noted this statement as indicting that the road was not formed by PWD in the year 1992 and thus the formation of road was the Act of the defendant. ( 13 ) AT the same time, the Learned Trial Judge has taken note of the statement of DW-3 that there are no records in the PWD department to show existence of road as described in the amended 'b' schedule in the amended plaint. Therefore, the Learned Trial judge has concluded that the PWD Engineer has admitted existence of road, which was 15 feet wide, in existence for 50-60 years. That evidence has prevailed on the mind of the Learned trial Judge to conclude that the allegations made by the plaintiff was correct. It is material to note that all along the defendant has been contending that there is a public road in existence on the eastern side of the 'a' schedule property for several years and that was also clearly admitted by the plaintiff in his plaint at paragraph 4. The averments in paragraph 4 of the plaint would show that the plaintiff has made a categorical mention that his vendor Hanumanthappa had sold the land to the extent of 20 guntas lying to the north to the schedule property for the purpose of forming the road, which runs East to west and is a public road for the use of the residents of Kammasandra village. The transfer of the said piece of land was effected by Hanumanthappa in favour of Kammasandra Panchayath by a registered sale deed dated 2. 11. The transfer of the said piece of land was effected by Hanumanthappa in favour of Kammasandra Panchayath by a registered sale deed dated 2. 11. 1955 is much before the plaintiff purchased the property in question. Therefore, there was a clear admission in the plaint itself that the disputed road is a public road formed and maintained by the Kammasandra Village Panchayat for the year 1955. It is also pertinent to mention that the defendant has produced in evidence exs D1-D4. Ex D1 is a communication from the Assistant executive Engineer of the Zilla Panchayath informing the defendant not only the existence of the road, as a public road, but has also mentioned the dimension of the road. For clarity, the letter needs to be extracted: - No. AEE/2pe/anu/je/roads/96-97 ??????????????????? Dated 27. 3. 1997 To ???? Sri H. Muniyappa ???? S/o Late Ramaiah ???? No. 128, 20th K. M. Hebbagodi ???? Anekal Taluk Sir, Sub: issue of clarification and details Regarding the road which is in Existence in Sy. No. 61/1 of Hebbagodi village, Anekal Tluk , which runs from NH 7 to Kammasandra Village . Ref: your letter dated 27. 3. 1997 addressed to this office. Adverting to the above, the road from NH 7 to Vaddarapalya via Kammasandra is a village rod formed long back and maintained the road under several programs like RLEGP, NREP, JRY etc. , under State and central Government funds. The total length of road is about 2. 50 km and is found and metalled by providing grade II metal and construction of CD wall also earned out. As such above road is a Government road and is maintained by this Department and the width of road is 30 feet from drain to drain. This is your kind information. ??? ???????????????? Yours faithfully, ?????????? Sd /- Assistant executive Engineer ? Z. P. E. Sub-Division, Ankeal ( 14 ) THIS document has been received in evidence as Ex D1 and is a clincher showing the width of the road as 30 feet from drain to drain. That was sufficient evidence on record to nullify the allegation made by the plaintiff and substantiate the defence of the defendant. Z. P. E. Sub-Division, Ankeal ( 14 ) THIS document has been received in evidence as Ex D1 and is a clincher showing the width of the road as 30 feet from drain to drain. That was sufficient evidence on record to nullify the allegation made by the plaintiff and substantiate the defence of the defendant. That has been totally ignored by the Learned trial Judge and no reference has been made either to Ex D1 or ex D2 and D3, which are the mahazars drawn by the Secretary to the Panchayath while dealing with the allegations made against the plaintiff. ( 15 ) INFACT, the notice-Ex D2 issued to the plaintiff and the hanumanthappa Ex D3 supports the defendant's defence that the width of the road was not as alleged by the plaintiff, but was 30 feet. As against this clear evidence, merely because DW 3-the engineer of the PWD has pleaded ignorance about the width of the road does not mean the plaintiff had proved alleged disobedience. ( 16 ) SECONDLY, it is noticed that the Learned Trial Judge himself has noted the conduct of the plaintiff. The findings recorded by him on point No. 2 in the impugned order is of relevance, it is as follows:- "point No. 2: The plaintiff has filed the present application during August 92 whereas he contends that the defendant widened the road during the last week of May and constructed bridge during July 92, when such being the case, the plaintiff ought to have moved this Court at the first instance for taking necessary ;action in the matter. Due to his in-action he has rendered himself not entitled for the relief of as sought. The public have been using this B schedule road since 92 till today. If the defendant is ordered to remove the encroachment, public would be put to greater inconvenience. Having regard to the fact the plaintiff has quantified the damages sustained by him, no purpose would be served by attaching the property of the defendant. Because this court deems it not fit to order restoration of the road to its original width at this point of time. However, having regard to the fact that the defendants has willfully disobeyed the orders of this court, it would meet the ends of justice, if he is committed to civil prison for a period of 10 days. Because this court deems it not fit to order restoration of the road to its original width at this point of time. However, having regard to the fact that the defendants has willfully disobeyed the orders of this court, it would meet the ends of justice, if he is committed to civil prison for a period of 10 days. The points for consideration is answered accordingly". ( 17 ) HOWEVER, the Learned Trial Judge despite recording a finding on point No. 2 as above has felt proper to punish the defendant by committing him to civil prison for ten days. ( 18 ) THE Learned Senior Counsel Sri Tarakaram while pointing out irrational approach resulting in passing of the impugned order has placed reliance on the decision of this Court smt. LAKSHMAMMA vs SHESHANNA. ( 19 ) THE Learned Counsel for the respondents is not present. As is seen, the order impugned relates to initiation of an action to punish the defendant for violation and disobedience to the order of injunction granted as permissible under the provisions of Order 39 Rules 2 (A) of Code of Civil Procedure. As the action contemplated under the provision under Order 39 Rule 29 (A) is penal is nature, undoubtedly, serious approach is necessarily warranted. The proceeding under Order 39 Rule 2 (A) of Code o civil Procedure, calls for a serious approach. The court is empowered to order taking away the liberty of an individual and order detention of the person, who, violates the order, in civil prison. This power being penal in nature, the burden is heavily on the person who alleges disobedience to prove the ingredients of the offences beyond reasonable doubt. ( 20 ) THERE should be a clear proof that the order to be obeyed was clear and there was no ambiquity. While dealing with the proceeding under Order 39 Rule 2 (A) of Code of civil Procedure, there should be clear proof that the order of injunction to e obeyed was clear and was not ambiguous. Essentially, the party complaining of disobedience to such an order must establish it with acceptable proof. To do so, ascertainment of factual position as it stood on the date of issuance of order of injunction and subsequent change in factual position is material. Essentially, the party complaining of disobedience to such an order must establish it with acceptable proof. To do so, ascertainment of factual position as it stood on the date of issuance of order of injunction and subsequent change in factual position is material. When the order of injunction requires and restraints the defendant from changing the nature of the property and if violation of such direction is alleged by the applicant the, necessarily enquiry should be held to ascertain whether the alleged change in the property is brought about subsequent to the order of injunction and said acts are attributable only to the party against whom such allegation is made. Therefore, there has to e separate enquiry when such application is moved. ( 21 ) IT is noticable from the facts manifest from the evidence and records that road in question is a public road maintained by local Village panchayath. Ex-D1 issued by the Executive Engineer of the Village Panchayath has certified that the width of the road is 30 ft. Admittedly, it is a public road maintained by the Village panchayath and therefore, it is difficult to accept plaintiff's contention that the defendant had possession of such roads to carry out such activity. ( 22 ) THE other documents filed by the defendant would also show that there was a complaint from the Local Villagers against the plaintiff for preventing user of the road by the public. This document has also been ignored by the Learned Single Judge while passing the order. ( 23 ) CONSIDERING all the facts and circumstances as they manifest from the record, I am satisfied that the dictum of the decision in the case of SMT. LAKHMMA VS K. S. SESHANNA (supra) relied on by the Learned Senior Counsel Sri Tarakaram applies to the facts of this case and tested in the light of that decision and for the reasons discussed in the order, the impugned order cannot be sustainable. The first Appellate Court before whom the revision petitioner had challenged the order passed by the learned Trial judge on. A. No. 6 in O. S. No. 245/1992 dated 6. 7. 01, has dismissed the appeal on the same grounds on which the impugned order was passed by the Learned Trial Judge. The first Appellate Court before whom the revision petitioner had challenged the order passed by the learned Trial judge on. A. No. 6 in O. S. No. 245/1992 dated 6. 7. 01, has dismissed the appeal on the same grounds on which the impugned order was passed by the Learned Trial Judge. The reasons assigned by the first Appellate Court in M. A. No. 72/01 to confirm the order of the Learned Trial Judge is also erroneous. Both the Courts below have seriously; erred in concluding that there was violation of the order of injunction, ignoring the settled principles of law. ( 24 ) BEING of this view, I am satisfied that the revision must succeed and accordingly it is allowed and the order dated 9. 2. 2004 in M. A. No. 72/01 is set aside. M. A. No. 72/01 stands allowed. Consequently, the order passed by the Learned Trial Judge on. A. No. 6 in O. . S. No. 245/1992 dated 6. 7. 01, is set aside. In the circumstances, there is no order as to costs.