Arun Kumar Jha, J. – Heard learned senior counsel for the petitioners and learned counsel for the respondents and I intend to dispose of the present civil miscellaneous petition at the stage of admission itself.

2. The instant petition has been filed for setting aside last part of order dated 30.01.2017 contained in Annexure-1, passed by the learned A.D.J - IV, Siwan in Miscellaneous Appeal No. 2 of 2011 whereby and whereunder the learned Court has refused to pass order for demolition of structure made during pendency of appeal.

3. Learned counsel for the petitioners submits that the plaintiff filed Title Suit No. 450 of 2010 for adjudication of plaintiff’s right, title and possession over the suit land and for declaration of his dispossession as illegal. The plaintiff purchased the suit land from one Ram Nath Prasad and the defendants purchased their land from the sons of Ram Nath Prasad. The defendants wanted to purchase the land of the plaintiff.

4. During the pendency of the suit, the plaintiff filed injunction petition and an order dated 07.07.2010 was passed granting status quo. The defendants appeared but did not file written statement and they filed their show cause in the injunction petition admitting the fact that he has raised construction and pillar has also been raised. After filing of the show cause a commissioner was appointed by the Court to get the status of the suit and Commissioner visited the suit land and submitted his report that six pillars have been raised up to 3-4 feet.

5. The learned Trial Court after hearing both the sides in the injunction petition, by a reasoned order dated 21.01.2011 allowed the injunction petition and restrained the defendants from making any construction over the suit property till disposal of the suit.

6. Against the injunction order dated 21.01.2011 the defendant/respondents filed miscellaneous appeal bearing M.A. No. 2 of 2011. In the said miscellaneous appeal the petitioners filed a petition under Section 151 of the Code of Civil Procedure (in short ‘the Code’) submitting therein that during pendency of the appeal the appellant has raised construction up to roof level and hence construction raised should be demolished at the cost of the petitioner. The defendant filed rejoinder to the petition dated 11.04.2012 submitting that construction is two years old and he has not made any construction during pendency of the appeal. During course of argument, the petitioners submitted that there is no illegality in the order of the learned Court below, rather the appellate Court should take note of the subsequent event which happened during the pendency of the appeal. The learned appellate Court after considering the submissions, dismissed the appeal but has not passed any reasoned order with respect to demolition sought with regard to construction made by the defendant during the appeal.

7. Learned counsel further submits that the learned appellate Court ought to have considered the fact that when the construction was made by the defendant during pendency of the appeal, then Court has power to pass order for demolition of the construction. Learned counsel further submits that the learned appellate Court has erred in not considering the subsequent event which happened during the pendency of the appeal and it is a case of non-exercise of judicial power and the learned appellate Court failed to exercise jurisdiction vested in it. Further, the learned appellate Court ought to have considered that when injunction order has been violated during pendency of the appeal then it is the appellate Court which has to pass order for demolition of structure.

8. Learned counsel further submits that if certain constructions were raised over the suit property violating the order of status quo, the learned Single Judge of this Court in Savitri Devi vs. Rajo Devi and another reported in 2006(3) PLJR 454 has held that if a party had knowingly and wilfully changed the status having received notice of injunction