JUDGMENT : This appeal is against the order dated 18.3.2009 passed by the learned District Judge, Bhadrak, Balasore in Misc. Case No. 4 of 2002 registered on an application under Order 39, Rule 2-A C.P.C. 2. Facts leading to the filing of the present appeal may be stated in brief. Appellant herein is defendant No. 1 and Respondent No. 1 is the plaintiff in T.S. No. 452 of 2000 on the file of learned Civil Judge (Junior Division), Balasore. On the plaintiff's petition under Order 39, Rule 1 and 2 C.P.C., Misc. Case No. 287 of 2000 was registered in which the prayer for interim injunction was rejected. Being aggrieved, he preferred Misc. Appeal No. 123 of 2001 wherein direction to maintain status quo in respect of M.S. Plot No. 572 and 577/2235 was passed on 7.1.2002 on the consent of the parties which was made absolute vide judgment dated 23.1.2002 passed in the Misc. Appeal. After final disposal of that Misc. Appeal, R-1 filed a petition under Order 39, Rule 2-A C.P.C. alleging that the appellant and his sons disturbed the status quo by digging earth and putting cement pillars for construction of a house over the land in respect of which the parties were directed to maintain status quo. After giving opportunity to the defendant to file show cause and allowing the parties to adduce evidence and upon assessment of the materials placed before him, the learned District Judge passed the impugned order observing that Appellant having violated the order of status quo, his property i.e. the land pertaining to Plot No. 577 be attached for a period of one year. 3. This order has been challenged on the grounds that the learned District Judge should not have entertained the application under Order 39, Rule 2-A C.P.C. after the disposal of the Misc. Appeal; that when the learned District Judge concluded that there is no evidence as to when the appellant encroached any portion of a joint passage in respect of which the direction to maintain status quo was passed, he could not have held that the appellant had violated the order to maintain status quo; that the finding that the order of status quo has been violated is not supported by any materials; and, in absence of proof of alleged violation beyond reasonable doubt, the impugned order should not have been passed. 4. 4. Respondent No. 1, Ratnakar Hota, filing objection to the appeal memo has contended that since the impugned order has been passed by the learned District Judge in Miscellaneous Appeal No. 123 of 2001, the present appeal is not at all maintainable in view of Section 104 (2) of the Code; that the appeal has otherwise become infructuous because the period of attachment prescribed in the impugned order has already expired in the meantime; and, that the impugned order is otherwise justified. 5. On the maintainability of the present appeal, learned counsels for both the parties have taken me through the provisions contained in Sections 96 and 104 (2) along with Order 41, Rule 19 and Order 43, Rule 1 of C.P.C. R-1 has not submitted any memo of citation whereas the appellant has cited judgments reported in AIR 1976 Madras 63 (Ramaswamy Reddiar and others v. Chinna Sithammal and others) and AIR 1982 AP 284 (K. Gangulappa Naidu and others v. K. Gangi Naidu). On behalf of the appellant, it is submitted that the proceeding initiated before the learned District Judge under Order 39, Rule 2-A C.P.C. being an independent proceeding and the impugned order having not been passed in an appeal under Section 104(1), C.P.C., the present appeal against the said order is not hit under Section 104(2) C.P.C. In Ramaswamy Reddiar (supra), it has been explained that in order to attract Sub-section (2) of Section 104 C.P.C. the appeal should be one falling under Section 104 C.P.C. whereas if the appeal is one under Section 96 read with Order 41, Rule 1 C.P.C., Section 104(2) is not applicable. In K. Gangullapa Naidu (supra), it has been explained that in a regular appeal pending before the appellate Court, if an order is passed under Order 39, Rule 1 and 2, then the appeal is maintainable under Order 43, Rule 1 C.P.C. In that case, during pendency of an appeal preferred against the judgment and decree passed in a suit an application under Order 39, Rule 1 and 2 was filed and that application was disposed by the appellate Court. Against the order passed on the application under Order 39, Rule 1 and 2, the matter was carried to the High Court. Before the High Court, it was submitted that no appeal lay against that order. Against the order passed on the application under Order 39, Rule 1 and 2, the matter was carried to the High Court. Before the High Court, it was submitted that no appeal lay against that order. The learned Single Judge observed that the case before the High Court was not a case in which as against an order under Order 39, Rules 1 and 2 made by the trial Court an appeal was preferred to the District Court and then as against the order of the District Court the matter was carried to the High Court. Therefore, it was observed, the case did not come under the mischief of Section 104(2). C.P.C. bus squarely fell under Order 43, Rule 1. 6. The appeal in hand is one against an order passed by the learned District Judge on application filed before him for the first time under Order 39, Rule 2-A C.P.C. alleging violation of order of status quo which was passed by the learned District Judge in the Misc. Appeal. It is argued by the learned counsel for the appellant that since the learned District Judge had passed the order of status quo, any application alleging violation of that order was required to be filed before the same Court and, accordingly, R-1 filed the petition under Order 31, Rule 2-A C.P.C. Therefore, it is submitted that the petition under Order 39, Rule 2-A C.P.C. is an independent proceeding initiated for the first time before the learned District Judge and the impugned order passed on that petition cannot be said to be an order passed in an appeal under Section 104 C.P.C. In the present case the impugned order has been passed on an application under Order 39, Rule 2A C.P.C. which is appealable under Order 43 Rule 1 (r) C.P.C. In Choorakadum v. Antony, AIR 1991 Kerala 44 it is held that the proceeding under Order 43, Rule 2-A for breach of injunction is separate and independent. In Ratnakar Swain v. Orissa Forest Corporation Ltd., 75 (1993) CLT 476 it is observed by this Court that an order passed by a Single Judge under Order 39, Rule 2-A for violating order of injunction passed by him partakes the nature of an original order even though passed in a proceeding arising out of an appeal. In Ratnakar Swain v. Orissa Forest Corporation Ltd., 75 (1993) CLT 476 it is observed by this Court that an order passed by a Single Judge under Order 39, Rule 2-A for violating order of injunction passed by him partakes the nature of an original order even though passed in a proceeding arising out of an appeal. In view of the discussion made above, this Court is of the considered view that the present appeal against the impugned order is maintainable. 7. Now, it is to be examined as to whether the allegation of violation of the order of status quo has been substantiated or not. There is no dispute that initially an order was passed on 7.1.2002 on the consent of both the parties directing them to maintain status quo over the suit land which was subsequently made final vide order dated 23.1.2002. The specific allegation made by R-1 in his petition alleging violation of the interim order is that the appellant and his sons (proforma respondents) violated the Order on 12.1.2002 and 13.1.2002 by digging earth from the suit land and putting cement pillars for construction of a house, with further specific allegation that on 23.1.2012, the appellant and his sons put bamboos for construction of a wall. Though the alleged violation occurred during pendency of the Misc. Appeal in which the interim order was passed R-1 did not approach the learned appellate Court during pendency of the Misc. Appeal but presented the application under Order 39, Rule 2-A C.P.C after disposal of the Misc. Appeal. 8. In the show cause filed by the appellant, it was contended that in fact he was constructing a house over the ancestral land but it was not over any portion of the common passage. His specific stand was that the construction was on his land excluding the suit land. The learned Court below observed that since the appellant-opposite party had admitted in his show cause that construction of the house was "going on" and, because the Amin Commissioner Report indicated that the construction was over a portion of suit plot No. 572, the appellant had definitely violated the order of status quo even though there is no evidence as to when a portion of the common passage appertaining to Plot No. 572 was encroached and amalgamated with the adjoining land of the appellant. 9. 9. Impugned order reflects that there is a common passage in North-South direction adjoining to the eastern side boundary of the plots in dispute. It is also reveals that the common passage is used not only by the parties to the suit but also by many of their co-villagers. The passage is in existence since 1953. P.W.-2, a co-villager, appears to have stated in his deposition that the common passage is a piece of joint property of the parties but the villagers also, including he himself, have been using the passage since long. He claims to have seen the passage since his childhood. According to him, the passage in existence at present is as it was before. It implies that there was no change of status quo of the passage till P.W.2 gave his statements. It appears during pendency of the Misc. Appeal a Survey Knowing Person was deputed to the spot for inspection and report. The Survey Knowing Commissioner has reported that a portion of the road has been encroached by the appellant and it stands amalgamated with the appellant's adjoining Plot No. 577. The learned Court below has held that there is no evidence as to when such encroachment was made. 10. It is not shown that by the time the order of status quo in respect of the suit land was passed, the encroached portion of the common passage appertaining to plot No. 572 was ascertained/identified. Had it been so, the Court should not have deputed a Survey Knowing Commissioner to identify the encroached portion of the common passage. Evidence of the appellant, read with that of P.W.2, reveals that long before the institution of the suit, the alleged encroached portion of the common passage has remained within the enclosure of R-1. So, it is to be concluded that till demarcation by the Commissioner R-1 was under impression that the encroached portion was a part of his homestead land appertaining to Plot No. 577. 11. The order of status quo was in respect of plot Nos. 572 and 577/2235. As already stated, the encroached portion of Plot No. 572 was not demarcated and specified before the order of status quo was passed. It was demarcated only after the alleged violation of the interim order. 11. The order of status quo was in respect of plot Nos. 572 and 577/2235. As already stated, the encroached portion of Plot No. 572 was not demarcated and specified before the order of status quo was passed. It was demarcated only after the alleged violation of the interim order. Thus, R-1 approached the Court for deputing a Civil Court Commissioner and solely on the basis of the Commissioner's report, the learned Court below has concluded that the appellant has violated the order of status quo by raising a part of his house over a portion of suit plot No. 577. 12. Learned counsel for the appellant submits that there is no clinching evidence showing that the appellant disturbed the status quo in respect of plot No. 572 and 577/2235 after the order of status quo was passed on 7.1.2002 with the consent of both parties. It is submitted that since the appellant had given consent to maintain status quo it is not believable that soon after giving the consent, he would proceed to disturb the status quo. In this regard it is to be noted that the Survey Knowing Commissioner made spot visit on 7.1.2003 which is about one year after the alleged violation. At that time he noticed one incomplete house with "thatched roof, walls and bamboo twigs and cement pillars having no door and window fittings" standing on appellant's plot covering some portion of suit plot No. 572 which is the joint passage. It implies that after R-1 had alleged violation of the order of status quo there was no further construction of the house and the appellant left the construction work mid-way. It. also implies that when the order of status quo was passed in respect of Plot No. 572, the alleged encroachment from out of that plot and the extent of such encroachment was not known to the parties. The appellant was of the impression that the portion allegedly encroached was a part of plot No. 577, The order of status quo was in respect of the passage then in existence. Evidence of P.W.2 shows that either before or after passing of the order of status quo there was no physical change of the common passage in existence. Therefore, it cannot be said that the order of status quo was disobeyed by the appellant. Violation of injunction requires stricter' proof, than Civil actions. Evidence of P.W.2 shows that either before or after passing of the order of status quo there was no physical change of the common passage in existence. Therefore, it cannot be said that the order of status quo was disobeyed by the appellant. Violation of injunction requires stricter' proof, than Civil actions. Therefore, in order to hold that the appellant violated the order of status quo in respect of plot No. 572 R-1 must prove that as on the date of the interim order the parties were aware of as to in respect of which specific portion of the land in dispute the status, quo is to be maintained. That is lacking in this case. Therefore, the appellant cannot be said to have disobeyed the interim order of status quo. In the result, the FAO is allowed but in the facts and circumstances, without cost. The impugned order is set aside. The Misc. Case under Order 39, Rule 2A C.P.C. stands dismissed. Ordered accordingly.