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Judgment
Dr. Sanjeeb K Panigrahi, J.
In the present CMP, the Petitioner has challenged the order dated 29.11.2025 passed by the learned Additional District Judge, Jaleswar in F.A.O. No.155 of 2025, whereby the appeal preferred by the Petitioner against the order dated 19.09.2025 passed by the learned Civil Judge (Senior Division), Jaleswar in I.A. No.267 of 2024 arising out of C.S. No.497 of 2022 was dismissed and the order of the learned Civil Judge (Senior Division), Jaleswar partly allowing the application under Order XXXIX Rules 1 and 2 of the C.P.C. was confirmed.
I. FACTUAL MATRIX OF THE CASE:
The brief facts of the case are as follows:
The Opposite Party-Plaintiff instituted C.S. No.497 of 2022 before the learned Civil Judge (Senior Division), Jaleswar seeking partition and permanent injunction in respect of the suit schedule land. The present Petitioner is Defendant No.2 in the said suit. The Plaintiff pleaded that the suit schedule properties are ancestral properties of the Plaintiff and Defendant No.1.
The case of the Plaintiff is that an area of A0.02 decimals had been sold in favour of the father of the present Petitioner/Defendant No.2 by Registered Sale Deed No.774 dated 06.03.1978, and he remained in possession thereof. It was further pleaded that Defendant No.1 sold an area of A0.12 decimals out of A0.30 decimals by Registered Sale Deed No.2119 dated 24.10.2008 in favour of Defendant Nos.3 to 8. In the Major Settlement, however, the suit land stood jointly recorded in the names of the Plaintiff and the Defendants.
The Petitioner/Defendant No.2 entered appearance in the suit and filed his Written Statement denying the averments made in the plaint. His case is that his father had purchased 50% share of one of the co-sharers, namely Niasi Jena, by Registered Sale Deed No.1198 dated 12.03.1951 and was delivered possession thereof. It was further pleaded that the Plaintiff had sold A0.02 decimals of land to the father of the Petitioner by Registered Sale Deed No.774 dated 06.03.1978 and, accordingly, the Plaintiff had no right, title or interest over the suit properties.
During pendency of the suit, the Plaintiff filed I.A. No.96 of 2022 under Order XXXIX Rules 1 and 2 of the C.P.C. seeking temporary injunction against the Defendants. The Petitioner/Defendant No.2 was set ex parte in the said proceeding and, by order dated 17.11.2022, was restrained from entering the I.A. schedule suit land till final disposal of the suit. The said order was not challenged by the Petitioner.
Thereafter, alleging that the Plaintiff was taking advantage of the aforesaid order of injunction and was attempting to raise construction over the suit land, the Petitioner/Defendant No.2 filed I.A. No.267 of 2024 under Order XXXIX Rules 1 and 2 of the C.P.C., seeking an order restraining the Plaintiff from raising any construction over the suit land and from changing the nature and character thereof till disposal of the suit.
During pendency of I.A. No.267 of 2024, the Petitioner filed an application under Order XXXIX Rule 7 of the C.P.C. for appointment of an Advocate Commissioner to inspect the I.A. schedule land. By order dated 24.04.2025, the learned Civil Judge (Senior Division), Jaleswar allowed the said application and appointed an Advocate Commissioner, who thereafter inspected the suit land and submitted his report before the learned Civil Judge on 22.08.2025.
Upon hearing the parties, the learned Civil Judge (Senior Division), Jaleswar, by order dated 19.09.2025, partly allowed I.A. No.267 of 2024 and directed the Opposite Party-Plaintiff not to raise any pucca construction obstructing the pathway of the Petitioner and thereby disturbing his peaceful possession. The learned Civil Judge further directed both parties to maintain status quo over an area of A0.02 decimals out of Plot No.903 under M.S. Khata No.33. No order was passed in respect of the other suit plots.
Aggrieved by the order dated 19.09.2025 insofar as the relief of injunction was confined to the aforesaid portion of Plot No.903, the Petitioner preferred F.A.O. No.155 of 2025 before the learned Additional District Judge, Jaleswar. By order dated 29.11.2025, the learned Appellate Court dismissed the appeal and confirmed the order passed by the learned Civil Judge.
Aggrieved by the order dated 29.11.2025 passed by the learned Additional District Judge, Jaleswar in F.A.O. No.155 of 2025, the Petitioner has approached this Court challenging the said order.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
The learned counsel for the Petitioner respectfully and earnestly made the following submissions in support of his contentions:
The learned courts below have committed error in restricting the order of injunction only to an area of A0.02 decimals out of Plot No.903, although the Petitioner had sought an order of restraint in respect of the entire I.A. schedule land. It was submitted that there is no specification or sketch map on record identifying the said A0.02 decimals out of Plot No.903.
The report of the Advocate Commissioner reveals that the Opposite Party-Plaintiff had undertaken construction over one of the suit plots and had also collected building materials over the suit property for further construction. In such circumstances, the learned courts below ought not to have confined the relief of injunction only to Plot No.903 and denied protection in respect of the other suit plots.
It was further submitted that the suit for partition is still pending and, unless the property is partitioned, raising construction over the disputed property would create complications in its eventual division. Accordingly, the nature and character of the suit property ought to be preserved during pendency of the suit.
The learned Appellate Court, while deciding the appeal arising out of an interlocutory proceeding, has gone into the merits of the respective claims of the parties in the suit and has thereby prejudged issues which are required to be decided in the suit upon evidence. The impugned order is, therefore, unsustainable in law.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY:
Per contra, the learned counsel for the Opposite Party earnestly made the following submissions:
The order dated 17.11.2022 passed in I.A. No.96 of 2022, whereby the present Petitioner was restrained in respect of the suit land, was never challenged before any higher forum and no application under Order XXXIX Rule 4 of the C.P.C. was filed for setting aside or modification of the said order. The said order has, therefore, attained finality.
Without availing the remedy under Order XXXIX Rule 4 of the C.P.C., the Petitioner subsequently filed I.A. No.267 of 2024 under Order XXXIX Rules 1 and 2 of the C.P.C. in respect of the same suit property and on the same cause of action. It was submitted that such subsequent application is hit by the principle of res judicata.
The learned Civil Judge rightly confined the order of restraint to Plot No.903, as the allegation of construction and obstruction related to the said plot. There was no material to show that the Opposite Party had undertaken any overt act over the remaining I.A. schedule plots.
It was further submitted that the order passed by the learned Civil Judge was intended to preserve the suit property and avoid future complications, and the learned Appellate Court rightly confirmed the same. The present CMP, therefore, does not merit interference.
IV. FINDINGS OF THE LEARNED ADDITIONAL DISTRICT JUDGE, JALESWAR
The learned Additional District Judge, Jaleswar, upon consideration of the rival submissions, framed the question as to whether the order dated 19.09.2025 passed by the learned Civil Judge (Senior Division), Jaleswar suffered from any illegality or impropriety.
The learned Appellate Court observed that grant of temporary injunction under Order XXXIX Rules 1 and 2 of the C.P.C. is discretionary and such discretion is required to be exercised on sound judicial principles, namely, existence of a prima facie case, balance of convenience and likelihood of irreparable injury. It was further observed that existence of a prima facie case alone is not sufficient and the Court must also be satisfied that refusal of injunction would result in irreparable injury to the party seeking such relief.
The learned Appellate Court further observed that the Petitioner had sought injunction in respect of M.S. Plot No.903 measuring A0.08 decimals, M.S. Plot No.906 measuring A0.11 decimals and M.S. Plot No.916 measuring A0.30 decimals under Khata No.33 of Mouza-Khuluda, although an earlier order of temporary injunction had already been passed against him in respect of the said lands at the instance of the Opposite Party-Plaintiff.
It was held that there is no absolute bar against a defendant seeking or obtaining an injunction in respect of immovable property merely because an earlier injunction has been granted in favour of the plaintiff concerning the same property. However, such power is required to be exercised with greater circumspection, and the defendant must establish an independent and legally cognizable right requiring protection. The relief sought should also not nullify, contradict or indirectly supersede the earlier order of injunction.
On the facts of the case, the learned Appellate Court noticed that the Opposite Party-Plaintiff had admitted alienation of A0.02 decimals out of M.S. Plot No.903 under Khata No.33 in favour of the father of the Petitioner by Registered Sale Deed No.774 dated 06.03.1978 and that the Petitioner was in possession of the said portion. It was further noticed that the Advocate Commissioner, upon local inspection, had reported that the Opposite Party-Plaintiff was raising construction obstructing the ingress and egress to the house of the Petitioner.
The learned Appellate Court accordingly held that the Petitioner had prima facie interest over the aforesaid portion of Plot No.903 and that construction thereon, in the manner alleged, would cause irreparable loss to him. It therefore found no illegality in the order passed by the learned Civil Judge restraining the Opposite Party-Plaintiff from raising construction over Plot No.903 obstructing the ingress and egress of the Petitioner and directing maintenance of status quo over the land till disposal of the suit.
So far as the remaining I.A. schedule lands were concerned, the learned Appellate Court found that no material was forthcoming to show that the Opposite Party-Plaintiff had undertaken any activity thereon causing prejudice to the interest of the Petitioner. It was therefore held that the Petitioner was not entitled to any interim relief of injunction in respect of the remaining plots.
On such findings, the learned Additional District Judge held that the order dated 19.09.2025 passed by the learned Civil Judge (Senior Division), Jaleswar did not suffer from any illegality or impropriety warranting interference and, accordingly, dismissed F.A.O. No.155 of 2025 on contest without costs and confirmed the order passed in I.A. No.267 of 2024.
V. COURT’S REASONING AND ANALYSIS:
Heard learned counsel for the parties and perused the documents placed before this Court.
The controversy in the present CMP essentially relates to the refusal of the learned courts below to extend the order of temporary injunction sought by the Petitioner in I.A. No.267 of 2024 to the entire I.A. schedule land. While the learned Civil Judge (Senior Division), Jaleswar granted protection in respect of A0.02 decimals out of M.S. Plot No.903 under Khata No.33, the prayer in respect of the remaining schedule plots was declined, which finding has been affirmed by the learned Appellate Court.
The grant of temporary injunction is governed by Order XXXIX Rules 1 and 2 of the C.P.C. The provisions empower the Court, in the circumstances contemplated therein, to grant temporary injunction for protection of the property or right in dispute. The exercise of such power is discretionary and is guided by the existence of a prima facie case, balance of convenience and likelihood of irreparable injury. Where the dispute concerns construction upon or alteration of immovable property forming the subject matter of the suit, regard must also be had to whether such activity would alter the nature and character of the property, prejudice the rights of the parties pending adjudication or create complications in giving effect to the eventual decree. The grant of such relief must ultimately rest upon the material placed before the Court and the satisfaction of the requirements governing temporary injunction under Order XXXIX Rules 1 and 2 of the C.P.C.
In M. Gurudas v. Rasaranjan1, which arose out of a suit for partition involving a prayer for temporary injunction against construction, alienation and alteration of the suit properties, the Supreme Court reiterated that the grant of temporary injunction requires consideration of three essential factors, namely, existence of a prima facie case, balance of convenience and irreparable injury. It was further observed that, while determining whether a prima facie case exists, the Court must not only ascertain whether a serious question requiring trial has been raised, but must also examine whether the other requirements necessary for grant of injunction are satisfied. The Supreme Court further emphasized the necessity of considering the consequences of grant or refusal of injunction in the facts of the case and the prejudice likely to be suffered by the parties. Accordingly, the nature and extent of interim protection must be determined having regard to the competing interests of the parties and the material placed before the Court.
In Mandali Ranganna v. T. Ramachandra2, which arose out of a suit for partition wherein injunction was sought restraining construction and alteration of the suit properties, the Supreme Court observed that, while considering an application for injunction, the Court is required to consider not only the existence of a prima facie case, balance of convenience and irreparable injury, but also the conduct of the parties, the relief being equitable in nature. It was further observed that grant or refusal of injunction carries serious consequences and, therefore, the Court must endeavour to protect the interests of the parties and the contentions raised by them must be considered objectively.
In the present case, it is not in dispute that the Opposite Party-Plaintiff had earlier obtained an order of temporary injunction dated 17.11.2022 in I.A. No.96 of 2022 against the present Petitioner in respect of the I.A. schedule land. The Petitioner did not challenge the said order before any higher forum nor did he seek its variation or discharge under Order XXXIX Rule 4 of the C.P.C. Thereafter, alleging that the Opposite Party-Plaintiff was taking advantage of the said order and raising construction over the suit land, the Petitioner instituted I.A. No.267 of 2024 seeking an injunction against the Opposite Party-Plaintiff.
Insofar as M.S. Plot No.903 is concerned, there was material before the learned Civil Judge supporting the apprehension raised by the Petitioner. The Opposite Party-Plaintiff had admitted alienation of A0.02 decimals out of the said plot in favour of the father of the Petitioner under Registered Sale Deed No.774 dated 06.03.1978. The Advocate Commissioner appointed for local inspection had also reported that the Opposite Party-Plaintiff was raising construction obstructing the ingress and egress to the house of the Petitioner. On consideration of the aforesaid material, the learned Civil Judge granted protection in respect of the said portion of Plot No.903.
The material relating to the remaining I.A. schedule lands, however, does not disclose a similar factual position. The learned Additional District Judge has specifically recorded that no material was forthcoming to show that the Opposite Party-Plaintiff had undertaken any activity over the remaining plots causing prejudice to the interest of the Petitioner. The allegation of construction and obstruction, on the basis of which the Petitioner sought immediate protection, was found to relate to Plot No.903.
In view of the aforesaid factual position, this Court finds that the learned Civil Judge was justified in distinguishing Plot No.903 from the remaining I.A. schedule lands. In respect of Plot No.903, the admitted alienation in favour of the father of the Petitioner, coupled with the report of the Advocate Commissioner regarding construction obstructing ingress and egress to the house of the Petitioner, furnished the necessary basis for grant of interim protection. No comparable material was available in respect of the remaining plots.
The contention of the Petitioner that construction over the suit property during pendency of the partition suit may create complications at the stage of final partition has also been considered. While preservation of the property pending adjudication is a relevant consideration, the grant of temporary injunction has to be determined on the basis of the circumstances obtaining in respect of the property for which such protection is sought. In the present case, the material indicating construction and consequent prejudice to the Petitioner pertains to Plot No.903, in respect of which protection has already been granted. In the absence of material indicating any such activity over the remaining I.A. schedule lands, this Court finds no basis to extend the order of injunction to those plots.
It is also relevant that the order dated 17.11.2022 passed in I.A. No.96 of 2022 continues to operate against the Petitioner in respect of the I.A. schedule land. The said order was neither challenged by the Petitioner nor was any application filed under Order XXXIX Rule 4 of the C.P.C. seeking its discharge, variation or setting aside. The prayer subsequently made by the Petitioner was required to be considered having regard to the subsisting order as well as the independent right and injury asserted by him. The protection granted in respect of Plot No.903 adequately safeguards the interest demonstrated by the Petitioner on the material placed before the Court.
As regards the contention that the learned Appellate Court has entered into the merits of the respective claims of the parties while deciding the interlocutory proceeding, this Court finds that the observations made in the impugned order concerning the rights, interests and possession of the parties were made for the limited purpose of examining the prayer for temporary injunction. Findings recorded while considering an application under Order XXXIX Rules 1 and 2 of the C.P.C. are necessarily prima facie in nature and cannot determine the substantive rights of the parties in the suit.
Accordingly, it is clarified that the observations made by the learned courts below with regard to the respective rights, title, interest or possession of the parties shall remain confined to the interlocutory proceedings and shall not influence the adjudication of C.S. No.497 of 2022, which shall be decided independently on the basis of the pleadings and evidence adduced by the parties.
On an overall consideration of the matter, this Court finds that the discretion exercised in granting protection in respect of Plot No.903 and declining to extend the same to the remaining I.A. schedule lands is founded upon the material available on record. The concurrent findings recorded in that regard do not disclose any illegality, impropriety or perversity warranting interference by this Court.
VI. CONCLUSION:
In view of the foregoing discussion, this Court finds no ground to interfere with the order dated 29.11.2025 passed by the learned Additional District Judge, Jaleswar in F.A.O. No.155 of 2025 affirming the order dated 19.09.2025 passed by the learned Civil Judge (Senior Division), Jaleswar in I.A. No.267 of 2024 arising out of C.S. No.497 of 2022.
Accordingly, the CMP stands dismissed.
Interim order, if any, passed earlier stands vacated.