CCP 16/08 IN CFA 813/04 (1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur O R D E R In S.B. Civil Contempt Petition No.16/2008 In S.B. Civil First Appeal No.813/2004 Durga and others Vs. Kailash Chand and others Date Of Order :: 23.4.08 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. S.C. Gupta, for petitioners. Mr. J.P. Goyal and Mr. Mahendra Goyal for non-applicants. .............. By the Court :- Instant contempt petition has been filed by the petitioners Durga and others against five non-petitioners Kailash and others alleging the willful defiance of the order dated 8/11/2004 passed by this Court in S.B. Civil First Regular Appeal No.813/2004 titled as Durga and others Vs. Ram Dayal and others, whereby both the parties were directed to maintain status-quo with regard to immovable property in question which was confirmed on 11/12/2007 CCP 16/08 IN CFA 813/04 (2) after service on the respondents. 2. The facts and circumstances giving rise to the present contempt petition are that petitioners filed a suit for partition of joint hindu family property including the land khasra no.6943 & 6538 situated in town Karauli; the suit of the petitioners was dismissed, therefore, a civil first appeal came to be filed before this Court. On 8/11/2004 the learned Single Judge of this Court passed the following order :- Heard. Admit. Issue notice to respondent Nos. 1 to 6 and 14 to 17 only, as prayed for. Meanwhile, both the parties shall maintain status-quo 3. Lateron, after service on the respondents the learned Single Judge of this Court confirmed the stay order on 11/12/2007. 4. It has been alleged that non-petitioners deliberately and willfully disobeyed the stay order and started raising construction of four shops on 22/12/2007 over the disputed land khasra no.6943 and done boring on the land of CCP 16/08 IN CFA 813/04 (3) khasra no.6538. It has been further averred that soon after coming to know on 29/12/2007 about the aforesaid construction and boring work, the petitioners objected and asked the contemnors not to do the same as there is stay order from the Rajasthan High Court but the non-petitioners did not care and continued with the construction work. On this, the petitioners submitted a report to SHO, Police Station Karauli and also approached to the Collector and Superintendent of Police. The SHO, Police Station Karauli after enquiry submitted a complaint to the Sub-Divisional Officer, Karauli with a request to bound down the contemnors under the provisions of section 107 & 116(3) of the Code of Criminal Procedure. It was also alleged that local administration in collusion with the non-petitioners did not stop the construction work despite the repeated requests. 5. The non-petitioner No.1 denied any knowledge of interim stay order dated 8/11/2004 and its confirmation order dated 11/12/2007 and stated that at no point of time the applicant or anybody else either served him the copy of the stay order passed by this Court or was made CCP 16/08 IN CFA 813/04 (4) aware of the same. It was also averred that he did not put in appearance before the learned trial court during the trial of the civil suit and also has not put in appearance before the High Court in S.B. Civil First Appeal No.813/2004 till 11/2/2008 since he was impleaded as a proforma respondent in the appeal. It was also stated that as soon he came to know of the stay order through non-petitioner No.3 Shri Suresh he immediately stopped the construction work, therefore a prayer has been made to discharge the notices of contempt against him. The non-petitioners No.2 to 5 in their separate reply stated that they neither raised any construction nor have allowed any party to the suit proceedings to raise construction over the disputed land bearing khasra no.6943. It was also denied that they have constructed a bore-well on the land of khasra no.6538 and it has been stated that the said boring had already been existing on the said khasra number and nothing has been done by them. In this regard, it was also averred that as a matter of fact all the co-sharers Laxmi Chand, Ram Dayal, Ramesh Chand and Suresh Chand have agreed to make the CCP 16/08 IN CFA 813/04 (5) partition of the land bearing khasra no.6943 and the land shown in the red colour in the map annexed with the partition deed came into the share of Ramesh Chand who sold the said land bearing khasra no.6943 measuring 2 bighas and 8 biswas to non-petitioner No.1 Kailash Chand vide registered sale deed dated 30.3.1990 and delivered possession thereof and all the co-owners of the land also executed the letter of consent in the form of affidavit in favour of Kailash Chand, thereafter the said land was mutated out in favour of Kailash Chand on 14/4/1996 in pursuance of the registered sale deed and on 19/8/2002 after satisfying from the report of Tehsildar, the Sub-Divisional Magistrate, Karauli passed the order under section 90-B of the Rajasthan Land Revenue Act. It was also averred that the land was vested in Kailash Chand-non-petitioner No.1 who was in possession of the disputed land, therefore there was no question of raising any construction of the shops in the disputed land by answering non-petitioners. 6. A rejoinder was also filed by the petitioners reiterating about the knowledge of the stay order and CCP 16/08 IN CFA 813/04 (6) deliberate disobedience by the non-petitioners by raising construction of the shops. 7. I have heard the learned counsel for the parties and perused the contempt petition supported by the affidavit and the material filed by the parties. 8. It was inter alia contended that non- petitioners including the non-petitioner No.1 were aware and having knowledge about the interim stay order passed by this Court on 8/11/2004 which was subsequently confirmed on 11/12/2007 after service of the notices on the non- petitioners in the appeal and they deliberately and in defiance of this Court's order started raising construction on 22/12/2007 in khasra no.6943. It was also submitted that land in question is at a distance of 2.5 kms. from the residence of the petitioners, therefore when they came to know about this illegal construction activity on 29/12/2007 they immediately objected and asked the contemnors not to do the same as the stay order from the Rajasthan High Court to maintain status-quo is in force but the contemnors-non- petitioners did not stop the construction and therefore the CCP 16/08 IN CFA 813/04 (7) petitioners were compelled to report this matter to the Collector, Superintendent of Police and the SHO who also did not stop the construction work, though the SHO, Karauli submitted a complaint under section 107 of the Code of Criminal Procedure against the non-petitioners. It was also submitted that from the police report it is clear that till filing of the complaint, construction of the shops was raised only upto roof height but subsequently roof was also casted by the non-petitioners. It was then contended that one bore-well was also got constructed by the non-petitioners and thus they deliberately disobeyed the stay order of this Court. 9. Learned counsel appearing for the non- petitioners No.2 to 5 urged that petitioners were fully aware that the said disputed land of khasra no.6943 came into the partition of Ramesh who sold it to Kailash Chand, contemnor No.1, by registered sale deed on 30/3/1990 and the land was also mutated in his name in the year 1996 and thereafter on 19/8/2002 the Sub-Divisional Magistrate, Karauli also passed the order in favour of Kailash Chand exercising the powers under section 90-B of the Rajasthan Land Revenue Act and CCP 16/08 IN CFA 813/04 (8) therefore since the non-petitioners No.2 to 5 were not having any interest in the said disputed land, there was no question to construct any shop on that land by them. It was also submitted that Ex.5, complaint submitted by the petitioners before SHO, Karauli, does not contain any allegation against them and only allegation of construction of shops was levelled against the non-petitioner No.1 Kailash Chand which also goes to show that they have been unnecessarily impleaded as non-petitioners in this matter. It was also submitted that boring on the land bearing khasra no.6538 is old one and allegation of raising construction of boring on the land bearing khasra no.6538 is absolutely false and designed with ulterior motive only to harass them. 10. It was submitted by the counsel appearing for the non-petitioner No.1 Kailash Chand that he was neither informed nor he was served with the stay order by the petitioners or any other person, therefore, he is not guilty of any deliberate defiance or contempt of court orders. It was also submitted that he did not put his appearance before the trial court in the suit proceedings and also did not appear CCP 16/08 IN CFA 813/04 (9) before this Court in the appeal filed by the petitioners since he was only a proforma respondent and as soon as he came to know about the stay order from Suresh, non-petitioner No.3, he stopped the construction work immediately. It was then submitted that the contempt proceedings are quasi- criminal in nature, therefore the same standard of proof is required as in other criminal proceedings. Reliance was placed on the judgment delivered in the case of Anil Mahatma Vs. Sunil Mehta, reported in R.L.W. 1997(3) Raj. 1773 and Central Bank of India Vs. Smt. Sarojini Kumari, reported in W.L.C. (Raj.) 1998 (3) page 290. 11. I have considered the rival submissions made at the bar. The first allegation is that the contemnors have constructed four shops on the land bearing khasra no.6943 in defiance of this Court order dated 8/11/2004 and 11/12/2007 by which the parties were directed to maintain status-quo in regard to the land in dispute. In this regard, one set is of the contemnors comprised of non-petitioners No.2 to 5 and another set is of non-petitioner No.1 Kailash Chand who stands on different footings as he purchased the CCP 16/08 IN CFA 813/04 (10) disputed land by registered sale deed from non-petitioner No.2 Ramesh on 30/3/1990. 12. So far non-petitioners No.2 to 5 are concerned it is evident from the material placed on the record that non-petitioner No.2 Ramesh Chand sold the disputed land bearing khasra no.6943 to non-petitioner No.1 Kailash Chand for a consideration of Rs.25,000/- on 30/3/1990 by a registered sale deed and thereafter the said disputed land was mutated in his name on 14/4/1996 and on the request of purchaser non-petitioner No.1 Kailash Chand, the order under section 90-B of the Rajasthan Tenancy Act, 1955 was also passed by the Sub-Divisional Officer on 19/8/2002 in his favour. Therefore, it is amply clear that non-petitioners No.2 to 5 Ramesh, Suresh, Tej Prakash and Ram Dayal were not having any interest since 30/3/1990 i.e. the date of execution of the registered sale deed in favour of non- petitioner No.1 Kailash Chand. It is also evident from the complaint made by the petitioner Jagannath and others on 1/1/2008 to the SHO, Kotwali that allegation in regard to raising construction of shops was only CCP 16/08 IN CFA 813/04 (11) against non-petitioner No.1. Therefore, allegation of raising construction of four shops against the non-petitioners No.2 to 5 appears to be baseless. 13. So far the non-petitioner No.1 kailash Chand is concerned, it has not been disputed by him that he raised construction of four shops on the disputed land but he only asserted that he was never communicated or informed about the stay order passed by this Court. 14. It is settled proposition of law that the contempt proceedings are having penal consequences, therefore they are not alike the civil proceedings and it is the duty of the petitioner to prove the willful and deliberate disobedience beyond shadow of doubt. Similar view has been taken by the learned Single Bench of this Court in Anil Mahatma's case (supra) wherein it has been observed that “willful and deliberate disobedience must be proved beyond all shadow of doubt since these proceedings have penal consequences, therefore knowledge of an ad-interim order upon the non-petitioner cannot be presumed on the basis of telegram or on publication of ad-interim exparte CCP 16/08 IN CFA 813/04 (12) injunction order in daily newspaper having no circulation in the region.” It was further observed that knowledge about the ad-interim order also cannot be presumed on the basis of bald allegation about its communication to the counsel for non-petitioners. 15. In the instant case, from the close scrutiny of the averments made in the contempt petition and affidavit filed by the petitioner as well as the documents produced by them, it does not appear that any written communication of the stay order passed by this Court dated 8/11/2004 and 11/12/2007 was ever sent to the non-petitioner No.1 Kailash Chand. It is also significant to note that non-petitioner No.1 Kailash Chand did not participate in the suit proceedings before the trial court and after service of the notice issued by this Court he also did not put his appearance before this Court. Merely because notice of the appeal was served upon him and also because of the fact that certain complaints were made by the petitioners to the District Collector, Superintendent of Police and SHO about the illegal construction being done by the non-petitioners, it cannot be CCP 16/08 IN CFA 813/04 (13) presumed that non-petitioner Kailash Chand was having knowledge about the stay order passed by learned Single Judge of this Court. It is also pertinent to mention here that no evidence of any kind has been produced in support of this assertion that non-petitioner No.1 Kailash Chand was orally informed or was having knowledge about the stay passed by this Court, nor even affidavit of any neighbourer or any other person in whose presence non-petitioner No.1 Kailash Chand was informed has been produced, therefore merely on the basis of bald allegation it would not be proper to hold that non-petitioner No.1 Kailash Chand was informed or communicated or was having any knowledge about the stay order passed by this Court. 16. Another allegation is about the construction of bore-well on the land bearing khasra no.6538 In this regard, suffice is to say that even in the contempt petition no specific date has been mentioned about this construction nor it has been mentioned that with which contractor or agency this work was got done by the non-petitioners. Contrary to this, this allegation has emphatically been denied by the non- CCP 16/08 IN CFA 813/04 (14) petitioners and they specifically narrated in their reply that the bore-well was old one and they did not construct any new bore-well. It is also pertinent to mention here that this allegation does not find place in the complaint (Ex.5) made by Jagannath and others to the SHO, Police Station Karauli nor any affidavit of the independent neighborers could be filed by the petitioners in support of this allegation. Therefore, the allegation in regard to construction of bore-well also does stand proved beyond shadow of doubt. 17. As a result of the aforesaid discussion, the present contempt petition, being devoid of merit, is hereby dismissed. However, the fate of the disputed construction of the shops may be decided at the time of final disposal of the appeal. (J.R. Goyal),J. VS Shekhawat/- Jr. P.A.