P. K. MOHANTY, J.

( 1 ) THE unsuccessful defendants/opposite parties before the Court below have filed this petition under o. 43, R l (r) of the Code of Civil Procedure praying for setting aside the order dated 16-12-2002 passed in Misc. Case No. 369 of 2002 (arising out of Title Suit No. 278 of 2002) of the court of Civil Judge (Senior Division), kendrapara.

( 2 ) THE brief fact of the case is that the plaintiff-petitioner filed a petition under order 39, Rules 1 and 2 read with Section 151, C. P. C. praying for grant of temporary injunction against the appellants-opposite parties not to do further construction on the suit land as described in the plaint schedule. The respondent-plaintiff filed the suit before the Court below for partition of their ancestral property by metes and bounds. The appellants-opposite parties filed Joint rejoinder to the above noted Injunction petition denying the averments made therein and farther it was asserted that the disputed land fell to their share in an amicable settlement and they are in possession thereof. The appellants-opposite parties have further stated that they have constructed a pucca house up to roof level over the disputed land and t