K.B.N. Singh, J.

The two petitioners have filed this revision petition against the order of the learned Additional Subordinate Judge allowing the appeal of the opposite party and holding the petitioners guilty under Or. 39, rule 2, Sub-rule (3) of the Code of Civil Procedure for disobeying an injunction order passed in the suit and directing each of them to be detained in civil prison for four months.

2. The short facts leading to the filing of the present petition are as follows. The plaintiffs opposite party filed a suit being Title Suit No. 222 of 1965 on the 24th August 1965 for partition of certain properties including plot no. 366 of Khata no. 41 measuring 13 dhurs situated in village Kalyanpur in which the plaintiffs claimed share to the extent of 9 dhurs. There was also a prayer in the plaint for permanent injunction restraining defendants 3 and 4 (petitioners) from raising a brick wall on the suit land. In the 25th August, 1965, the plaintiffs filed a petition for temporary injunction restraining the defendants from dismantling and removing the kolhu or removing the wall constructed by the plaintiffs or changing its, status quo. On the said petition, the court passed an interim order on the 25th August, 1965, after hearing the plaintiffs' counsel in terms of the prayer asking the petitioners to show cause by the 11th September, 1965. Before that, on the 30th August 1965 the plaintiffs filed a petition that the petitioners wanted to remove the kholhu of the plaintiffs as also to dismantle two rooms of brick, and as a matter of fact they had removed the Kolhu : and hence they prayed for appointment of a pleader commissioner for a report on the aforesaid two points. On this petition, the court appointed Shri Wahidul Hassan as pleader commissioner and directed him to report by the 2nd September, 1965. The Commissioner submitted his report on the 2nd September, 1965; and therefore, on the 6th September, 1965, the plaintiffs filed a petition under Order 39 rule 2 of the Code of Civil Procedure stating that the petitioners were making construction in presence of the commissioner also and that the Kolhu and the wall alleged to have been constructed by the plaintiffs were also demolished and thus they alleged disobedience of the interim injunction order passed by the court by the petitioners.

3. On the 12th November, 1965, the petitioners filed a rejoinder petition denying the service of notice and asserting that it bas been fraudulently suppressed and they further denied that the constructions as noted by the pleader commissioner, on the suit land were made after the service of notice. It may be noted here that the said petition of the plaintiffs under order 39 rule 2 of the Code of Civil Procedure had been registered as Miscellaneous Case No. 168 of 1965.

4. At the hearing of the miscellaneous case, on behalf of the plaintiffs besides the pleader commissioner (A.W. 1), the serving peon Binda Behari Pandey and the attesting witness Gani Mian were examined as A.W. 4 and A.W. 2 respectively and one of the plaintiffs, namely Bishwanath Sah was examined as A.W. 3 and, the pleader's report and the service report were exhibited. On behalf of the defendant petitioners, two witnesses' were examined, namely, Aziz Mian (O.W. 1) and Babu Ram Singh (O.W. 2), defendant No.4 in the suit. They deposed that the construction had been made much earlier and prior to the institution of the suit. The learned Munsif dismissed the miscellaneous case filed by the opposite party against the petitioners; and, then the opposite party filed an appeal before the District Judge which was heard by the learned Additional Subordinate Judge. He allowed the appeal and held the petitioners guilty of deliberately disobeying the court's order and directed them to be detained in civil prison, as already mentioned above. Being aggrieved by that order, the present revision petition has been filed by defendants 3 and 4 in this court.

5. Mr. Kailash Roy, learned Co