A writ petition is maintainable against an appellate order passed under O. 43, R. 1, C. P. C. in an appeal preferred against an order passed under O. 39, R. 1, C. P. C. The High Court can issue a writ of certiorari to quash the impugned order and a writ of mandamus commanding the appellate court to decide the appeal afresh in accordance with law.

( 1 ) PETITION in hand is directed against the judgment and order dt. 5th Aug. 1992 passed by Addl. District Judge, Ballia in Misc. Appeal No. 71/1989 preferred against the judgment and order dt. 1-5-1989 passed by 8th Addl. Munsif, Ballia on the application 6c-2 filed by the plaintiffs under O. 39, R. 1, C. P. C. for ad interim injunction in original suit No. 171 of 1988, Sri Ram Singh v. Lala Ram.

( 2 ) PETITIONERS instituted the suit it being suit No. 171 of 1989 for permanent injunction restraining the defendant set No. 1, namely Lal Ram from interfering with the plaintiffs possession over a part of plot No. 1659/3, area 18. 5 decimal and from raising any constructions over the land shown/marked by figures 3, 4, 5 and 6 and also from cutting the trees situate on the said land. The relief of mandatory injunction was also sought directing the defendant set No. 1 to close the door marked by letter ka and to remove the constructions if any, found on the land shown by figures 3, 4, 5 and 6. An application 6 C-2 supported with an affidavit was also filed by the plaintiffs praying therein to restrain defendant No. 1, by means of an ad-interim injunction, from raising any construction over a part of plot No. 1659/3, area 18. 5 decimal shown by figures, 3, 4, 5 and 6. The plaintiffs claimed themselves to be the co-owners along with defendant second set arrayed as party respondents 3 to 7 in the writ petition and alleged that the defendant Ist set namely, Lala Ram, had nothing to do with the land in suit but on sheer muscle power, he was threatening to raise constructions over the land in suit. The application for ad-interim injunction was opposed by defendant Lal Ram by means of the objection attended by an affidavit. He disputed the correctness of the plaint map and filed a map along with his objection according to which the land shown by figures, 1, 2, 3 and 4, was acquired by his father from the father of tie plaintiffs for valuable consideration some 30 years ago and it is on the said land that he has got his house shown by figures 1, 5, 11, 14, 13, 12, 10, 9, 8, 7 and 4 in the map filed along with the objection. It was also asserted by Lala Ram (defendant) in his objection that he had all along been using the land marked by figures 14, 2, 3 and 13 as his Sahan land where he had his well situated as also the mango; guava and Tari trees. It was alleged that the plaintiffs had no concern with the suit land and the application 6 C-2 was liable to be rejected.

( 3 ) THE learned Munsif upon consideration of the facts and circumstances of the case, particularly having regard to the statement made at the bar by the learned counsel appearing for the plaintiffs during the course of arguments, held that the defendant Lala Ram was admittedly in possession over 9 decimal area of the plot in suit. The learned Munsif also placed credence upon extract of Khatauni 1394 Fasli and Amaldaramad made therein of certain orders for recording the name of defendant Lala Ram over 9 decimal area of plot No. 1659. The learned Munsif however, observed that the question as to whether the land admeasuring 9 decimal in possession of the defendant Lala Ram stretched upto eastern wall of his house as alleged by the plaintiffs or upto east of the well as alleged by the defendant Lala Ram. According to the plaintiff, the defendant Lal Ram had no concern with the remaining land beyond the eastern wall of his house and this question, according to the learned Munsif, could be effectively adjudicated upon only at the trial stage after the evidence of both the parties is adduced in the case. The learned Munsif, however, held on appraisal of the report and the map prepared by the Amin that the Palani had been shown towards east of the plaintiffs house and that the defendants house had its opening towards east and since the plaintiffs admitted the existence of the door and Palani, they could not be said to have any prima facie case for ad interim injuncti