2025:JHHC:11446 --1-- C.M.P. No. 706 of 2024 IN THE HIGH COURT OF JHARKHAND, RANCHI C.M.P. No. 706 of 2024 ---- 1. Shiv Prasad Ojha, aged about 59 years, son of Late Rakhal Chandra Ojha 2. Sujit Kumar Ojha @ Jha, aged about 36 years, son of Late Krishna Prasad Ojha 3. Subhash Kumar Jha, aged about 46 years, son of Late Krishna Prasad Ojha 4. Astama Devi, aged about 45 years, d/o Late Krishna Prasad Ojha, W/o – Ranjeet Kumar All are R/o village and post – Pundru, PS – Pindrajara, District – Bokaro, Jharkhand .... Petitioners -- Versus -- 1. Tripurari Nath Tiwary 2. Tarak Nath Tiwary, both son of late Sarda Tiwary, resident of village and post – Pundru, PS – Pindrajara, District – Bokaro, Jharkhand 3. Pankaj Kumar Jha, son of Late Krishna Prasad Ojha, resident of village and post – Pundru, PS – Pindrajara, District – Bokaro, at present residing at Hansa Vihan INS – Hansa, PS – Vasco Da Gama, PO – INS Hansa 4. Hirani Devi, W/o Late Krishna Prasad Ojha, R/o – Village and Post – Pundru, PS – Pindrajara, District – Bokaro, Jharkhand .... Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioners :- Mr. Ram Prakash Singh, Advocate For O.P. Nos.1 & 2 :- Mr. Avilash Kumar, Advocate ---- 06/15.04.2025 Heard learned counsel appearing for the petitioners and learned counsel appearing for the opposite party Nos.1 and 2. 2025:JHHC:11446 --2-- C.M.P. No. 706 of 2024 2. This petition has been filed under Article 227 of the Constitution of India for setting aside of the order dated 07th June, 2024 passed by learned District Judge-II at Bokaro in Civil Misc. Appeal No.03 of 2023 whereby the appeal filed under Order XLIII Rule 1(r) of the CPC against the order dated 14.03.2023 passed under Order XXXIX Rule 1 & 2 of the CPC has been dismissed. 3. Learned counsel appearing for the petitioners submits that the petitioners are the rightful owner and title holder of the land of Mouza Pundru Mouza No.106 under Khata No.169, Plot No.4715 measuring an area of 14 decimals which has been purchased by father of petitioner No.1 on 21.09.1943 on payment of consideration amount to Saraswati Devi wife of Bharat Tiwary through registered deed of sale being Deed No.13905 contained in Annexure-1. He submits that the suit has been instituted by the petitioners for declaration of right, title interest and consideration of the sale deed being Registered Deed No.1009 of 2017 dated 28.03.2017 executed by the father of defendant Nos.1 and 2 namely Sarda Tiwary. He submits that since 1943 the petitioners are in possession and for that the rent receipt has also been made. He then submits that by way of Annexure-2, the possession certificate is also in favour of the petitioners issued by the Circle Officer, Chas. He also submits that the said document was brought on record, however, learned trial court and learned first appellate court has not considered that aspect of the matter. He further submits that the opposite parties 2025:JHHC:11446 --3-- C.M.P. No. 706 of 2024 herein are trying to dispossess the petitioners and for that the proceeding under Section 107 of Cr.P.C. was also initiated, however, that was dropped. He submits that both the learned Courts wrongly held that the petitioners were admitted the possession of the defendants and that was not admitted. He relied on the judgment of Hon’ble Supreme Court in the case of Dalpat Kumar and Another versus Prahlad Singh and Others reported in AIR 1993 Supreme Court 276, wherein at paragraph No.4 it has been held as under :- 4. Order 39, Rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause(c) was brought on statute by Section 88(i)(c) of the Amending Act 104 of 1966 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under Section 151, C.P.C. to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim 2025:JHHC:11446 --4-- C.M.P. No. 706 of 2024 injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. On this ground, he submits that the learned Court has wrongly passed the said order. 4. Learned counsel appearing for the opposite party Nos.1 and 2 opposes the prayer and submits that the learned Court has rightly passed the order. He submits that defendants are in possession and there is no illegality in the impugned order and in view of that the same may kindly be set aside. He further submits that the said suit itself is required to be decided at the earliest. 5. The Court has gone through the materials on record including the impugned orders of the learned Court. Annexure-1 is a document of 1943 which is a sale deed in favour of the father of the petitioners. The rent receipts are also on the record which clearly suggests that the name was further mutated and the rent was being paid to the government. The possession certificate contained in Annexure-2 is in favour of the petitioners and both the learned 2025:JHHC:11446 --5-- C.M.P. No. 706 of 2024 Courts have not taken into consideration the Annexure-2 which is the possession certificate of the petitioners. The suit is for declaration of right, title, interest and possession and cancellation of the sale deed executed by the father of defendant Nos.1 and 2. The proceeding under Section 107 of Cr.P.C. further suggests that there is dispute of possession between the parties which has been dropped later on. There is no clear-cut finding in the proceeding under Section 107 of Cr.P.C. with regard to the possession, however, learned both the Courts has relied on the order of SDO observing that they have been protected, however, there is no such order on the record. 6. In view of the above, prima facie case in favour of the petitioners is made out and it is the duty of the Court to preserve the subject matter of litigation by way of an appropriate order till the final stage of a case. The entire property cannot be allowed to be exhausted, otherwise nothing will remain to decide and this is the ratio and this is the position in several judgment of Hon’ble the Supreme Court as well as the High Courts. 7. What has been discussed here-in-above, the petitioners herein are having the prima facie case and balance of convenience also lies on their favour and they would suffer irreparable loss if defendants succeeded in disturbing the possession and transferring the suit property creating third party right, as such the order dated 07th June, 2024 passed by learned District Judge-II at Bokaro in 2025:JHHC:11446 --6-- C.M.P. No. 706 of 2024 Civil Misc. Appeal No.03 of 2023 is hereby set aside. 8. Till the disposal of the suit, both the sides shall maintain the status quo of the suit property. 9. This petition is allowed in above terms and disposed of. (Sanjay Kumar Dwivedi, J.) Sangam/ A.F.R.