1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION WRIT PETITION NO.6889 OF 2010 Tukaram R. Shewale ...Petitioner. v. Shri Vishwanath N. Shewale and Ors. ...Respondents. Mr. Mandar Limaye, adv. For the Petitioner. CORAM : J.H. BHATIA, J. DATED : SEPTEMBER 14, 2010 P.C. 1 Heard the learned counsel for the petitioner. Petitioner is the original plaintiff in Regular Civil Suit No.107 of 2004. According to him, he is the owner of land survey no.22, Hissa No.7A/1/1 situated at Shewalwadi. About that property, temporary injunction was granted in his favour restraining the defendants from causing any interference in his possession. Petitioner thereafter filed Miscellaneous Application No.106 of 2008 for taking action against the respondents for breach of the order under Order 39 Rule 2(A) of the C.P.C. According to him, defendant nos. 6 and 7 had made construction on a part of the land belonging to him. Defendants contested application and denied that the construction was made on the land belonging to the plaintiff. In their evidence, the 2 defendant nos.1 and 6 stated that the defendant no.6 had purchased another land bearing survey no.22/7A/1/2 adjoining to the land of the plaintiff and the construction was made on that land. Oral evidence was led by both the parties. The trial Court dismissed the application. That order is challenged in the present writ petition. 2 On perusal of the impugned order, it appears that the defendants claimed that the defendant nos.6 and 7 had purchased the adjoining land bearing survey no.22/7A/1/2. Copy of the sale deed was not produced before the Court. Even the plaintiff did not make any request to the Court to direct the defendants to produce the sale deed. Defendants had taken specific plea that the construction was made on the adjoining land and not on the suit land. Plaintiff did not get the property measured through the Court Commissioner nor the land was measured to point out that the construction was made on his property. In the proceeding for taking action for contempt of the Court either under the provisions of the Contempt of the Courts Act or under Order 39 Rule 2A, initial burden lies on the petitioner to show that contempt of the Court was committed or that the order of the Court was disobeyed. Only after that burden is discharged, onus may shift to the respondents to prove that they had not committed contempt of the Court or that they had no 3 intention to commit contempt. In the present case, petitioner did not produce any reliable evidence to show that defendants had committed breach of the order passed under Order 39 Rule 1 of the C.P.C. Therefore, I find no fault with the impugned order rejecting application. 3 For the aforesaid reasons, petition stands dismissed. (J.H. BHATIA,J.)