JUDGMENT :

BISWANATH RATH, J.

1. This Civil Miscellaneous Petition has been filed at the instance of defendant no.12, the petitioner herein assailing the order dated 7.3.2017 passed by the learned Civil Judge (Senior Division), Kujanga in CMA No.12 of 2016 arising out of Civil Suit No.3 of 2013

2. Short background involved in the case is that the plaintiff-opposite party no.1 filed Civil Suit No.3 of 2013 in the Court of Civil Judge (Senior Division), Kujanga for declaration of his right in respect of Ac.0.31 ½ decimals of property out of Hal Khata No.597, Hal Plot No.1348, area Ac.0.36 decimals out of Ac.0.72 decimals from a huge patch of Ac.7.23 decimals corresponding to Sabik Khata No.31, Sabik Plot No.1432, area Ac.07.23 decimals. Leaving apart the details of the case of plaintiff as well as defendant in contest, as the same is not necessary for the purpose of determination of the case at hand, this Court only takes up the relevant factors necessary for effective adjudication of the case which reads herein under.

In filing the Civil Suit No.3 of 2013, at a subsequent stage finding the necessity of addition above petitioner-defendant nos.12 and defendant no.13 filed I.A. No.3 of 2013. The court below considering the necessity of such addition, by order dated 4.12.2014 allowed the petition and added the present petitioner and proforma opposite party no.13 as defendant no. 12 and 13 in the suit. On being added as defendant no.12, the present petitioner filed written statement. During pendency of the suit, plaintiff-opposite party filed I.A.No.3 of 2013, an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure seeking injunction against the contesting defendants in respect of the disputed property. Petitioner along with other defendants contested the Injunction application. I.A.No.3 of 2013 was disposed of by the Civil Judge (Senior Division), Kujanga vide his order dated 27.4.2015 directing the parties in the suit to maintain status quo over the suit land till disposal of the suit. The petitioner arrayed as party started construction of a building over his purchased land pertaining to Khata No.881/723, Plot No.1348/1803, area Ac.0.09 decimals being aggrieved by the status quo order filed F.A.O. No.70 of 2015 before the learned District Judge, Jagatsinghpur. The above F.A.O. was disposed of on contest by order dated 11.8.2015 whereby the learned District Judge while allowing the F.A.O. set aside the order passed by the trial court with permission to the present petitioner to proceed with the construction of the building over his purchased land indicated hereinabove but however subject to giving an undertaking in the suit that he shall give vacant possession of the suit land in the event the case land falls to Sambari Dalai and he will also not claim any equity involving the cost of construction in the meanwhile. Being aggrieved, plaintiff-opposite party filled C.M.P.No.1093 of 2015 before this Court and this Court by order dated 23.9.2016 passed the following order:

“Considering the submissions made and perusing the impugned judgment of the learned District Judge, I am not inclined to interfere with the same.

However, it is directed that if the opp. parties 1 and 3 make any construction over their purchased land pertaining to Khata No.881/723, Plot No.1348/1803, measuring an area of Ac.0.09 dec. corresponding to C.S.Khata No.31, Plot No.1432 without encroaching the petitioner’s land, they shall file an undertaking before the learned trial court that they will not claim any equity for construction, if any, made by them during the pendency of the suit.”

3. Basing on the direction of this court, defendant-petitioner in compliance of the said direction, filed necessary undertaking in the trial court. On acceptance of the undertaking filed by the defendant-petitioner, the trial court directed the petitioner to proceed with the construction over the disputed property. While the position stood thus, plaintiff-opposite par