JUDGMENT

A. K. GANGULY, J. — The appellant herein was the sole opposite party in a writ petition filed by Mira Roy, Mita Roy and Rita Roy (the respondents herein). No statutory authority was impleaded as opposite party in the writ petition. The entire dispute is over rights of property between private parties. The order dated 21.11.2003 passed by the District Judge, Cuttack in Misc. Appeal No.91 of 2003 is the subject matter of challenge.

2. The material facts are :-

The writ petitioners filed Civil Suit No.142 of 2003 in the Court of Civil Judge (Jr. Divn.), Ist Court, Cuttack, against the appellant praying for the following reliefs :-

“3.a. For an order of permanent injunction restraining the defendant/opp.party to change the nature and character of the suit property and not to make any construction over the vacant space.

3.b. Restraining the defendant/opp.party from clearing the main entrance adjoining to the main road.

3.c. For a direction to make all facilities available to the plaintiffs/petitioners to stay in the building conveniently as per their requirement and to maintain them.

3.d. Cost of the suit.

3.e. Any other reliefs deemed fit and proper.”

3. Along with the said suit, an injunction petition under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinaf¬ter referred to as the ‘C.P.C.’) read with Section 151, C.P.C. was filed praying for an injunction restraining the appellant (the defendant in the suit) from changing the nature and charac¬ter of the suit land and the building and also from interfering in the peaceful possession of the writ petitioners in the suit land. On the said injunction petition the trial Judge by an order dated 2nd August, 2003 directed the parties to maintain status quo in respect of the suit land, as well as the building standing on the same without changing its nature and character. Against the said order, the present appellant, the defendant in the suit, filed an appeal before the District Judge, Cuttack. The District Judge after hearing the parties and considering the facts and circumstances of the case held that the present appellant, who was also the appellant before the District Judge, had prima facie right and title to the land which he had purchased. The District Judge further held that in that view of the matter, the appellant cannot be prohibited from constructing a house thereon, but while doing so, he cannot interfere with the possession of the adjoin¬ing house occupied by the writ petitioners. The concluding part of the order which was passed by the learned District Judge in the said Misc. Appeal is set out :-

“In the result, the appeal is allowed in part. So far as the order restraining the appellant from interfering with the peaceful possession of the house by the respondents is concerned the impugned order is upheld. As regards the order of maintenance of status quo in respect of the suit land, it is set aside and the appellant may proceed with construction of the house over the land he purchased according to the plan approved by the Cuttack Development Authority, without affecting the structure of the existing building over the remaining portion of the suit plot and he shall not claim equity over the land and house if he fails to succeed in the suit.”

4. The suit is pending.

5. During the pendency of the suit, the writ petition, out of which this appeal arises, was filed challenging the said order of the District Judge and a learned Judge of this Court enter¬tained the writ petition. The writ petition was disposed of by the learned Judge on 22.6.2004 by passing the following order -

“An affidavit of Mita Roy-petitioner No.2 is filed along with a hand drawn sketch map of the area in which the opp.party is proposing to construct the building and showing location of the area belonging to the petitioners behind that patch. The opp.party has also filed his affidavit and has annexed a Xerox copy of the approved plan Annexure-A relating to the house and also a