M.Y. Eqbal, J.

1. Heard Mr. R.S. Mazumdar, learned counsel appearing for the petitioner.

2. In the instant application filed under Section 227 of the Constitution of India, the petitioner has prayed for quashing the order dated 7.2.2005 passed by the District Judge, Dhanbad in Misc. Appeal No. 93 of 2004 whereby he has dismissed the appeal at the admission stage on the ground that appeal was not maintainable against the order passed under Section 151 of the Code of Civil Procedure.

3. Since the impugned order was passed by the District Judge before admitting the appeal, I do not think it necessary to hear the respondent for deciding the question of law as to whether the District Judge was correct in law in dismissing the appeal as not maintainable.

4. The plaintiff-respondent filed Title Suit No. 87 of 2004 praying, inter alia for a decree declaring the suit land as a road in the use of the plaintiff and the performa defendants and also for perpetual injunction restraining the defendant No. 1, his main agnate, to construct or execute any work over the said road. The defendant-petitioner filed written statement denying and disputing the averments made in the plaint. The plaintiff-respondent also filed a petition under Order XXXIX, Rules 1 and 2 read with Section 151, CPC praying, inter alia, for a temporary injunction restraining the defendant-petitioner from raising any construction over the said land. The petitioner filed show cause to the aforesaid petition opposing the said prayer on various grounds. The Munsif, Dhanbad after hearing the parties, disposed of the application 13.10.2004 by directing both the parties to maintain status quo with regard to the said land. Aggrieved by the said order, the defendant-petitioner filed appeal before the District Judge, Dhanbad being M.A. No. 93 of 2004. The District Judge dismissed the appeal holding that the appeal is not maintainable. The impugned order dated 7.2.2005 passed by the District Judge, in Misc. Appeal No. 93 of 2004 is quoted herein below :--

"Learned lawyer for the appellant has been heard on the point of maintainability of this appeal.

The appellant has filed the instant appeal on being aggrieved by and dissatisfied with the order dated 13.10.2004 passed by Munsif 1st, Dhanbad in T.S. No. 87/2004 by which the learned Munsif 1st directed both the parties to maintain status quo. Defendant is the appellant.

The plaintiff of the suit filed a petition before the Court below under Order XXXIX, Rule 1 and 2 under Section 151 of the CPC for restraining the defendant No. 1 in making construction on the disputed road. The Court below after hearing both the parties directed the parties to maintain status quo.

The aforesaid order appears to have been passed by the Court below exercise its jurisdiction under Section 151 of the CPC. The order passed under Section 151 of the CPC is not appealable order. The same can be challenged in the exercise of the Revisional jurisdiction of the Honble High Court. The appeal is against the order of the Munsif 1st passed under Section 151 of the CPC which is not maintainable before this Court. Hence, there is no merit in this appeal. The appeal is, accordingly dismissed."

5. From bare perusal of the aforesaid order, it is manifest that the District Judge presumed that the order of status quo was passed by the Munsif under Section 151, CPC and therefore, the appeal is not maintainable. It is, therefore, necessary to look into the order passed by the Munsif while disposing of the application under Order XXXIX, Rule 1 and 2 read with Section 151 of the CPC. A copy of the order dated 13.10.2004 passed by the Munsif is annexed as Annexure-3 to the writ petition. From reading of the order, it reveals that the Munsif passed very elaborate and reasoned order after considering the pleadings and the injunction application and the rejoinder filed by the parties. After considering all the facts and the documents brought before him, he recorded a prima facie findi