1 2025:CGHC:33164 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 654 of 2025 1 - Harishankar S/o Gopal Prasad Meher Aged About 50 Years R/o Village - Amlibhauna, District - Raigarh Chhattisgarh ... Petitioner(s) versus 1 - Chakradhar S/o Shri Gopal Meher Aged About 56 Years R/o Village - Amlibhauna, District - Raigarh Chhattisgarh 2 - Gopal Prasad Mehar S/o Shri Puran Meher Aged About 82 Years R/o Village - Amlibhauna, District - Raigarh Chhattisgarh 3 - State Of Chhattisgarh Through The Collector Raigarh Chhattisgarh ... Respondent(s) For Petitioner : Shri Waqar Naiyer, Advocate holding the brief of Shri Faisal Akhtar, Advocate. For Respondent/ State : Shri Sanjeev Agrawal, P.L. Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 16.07.2025 1. The petitioner has challenged the order dated 28.11.2024, whereby the miscellaneous appeal preferred by the petitioner under Order 43 Rule 1 of CPC has been dismissed by the learned Second District Judge, District Raigarh in Misc. Civil Appeal No. 14 of 2024, and the order dated 11.7.2024 passed by the learned First Civil Judge, Senior Division, Raigarh, has been affirmed. 2. The plaintiff filed a suit for declaration of title, permanent injunction and confirmation of possession pertaining to Survey Nos. 21/29, 21/30, 21/31 & 52/1, inter alia, on the ground that the above-stated lands were SMT NIRMALA RAO 2 recorded in the name of his mother, Khirmati. She had alienated 0.152 hectares of land from Survey No.21/29. Late Khirmati had acquired the property through a registered will deed dated 25.9.1970 executed by her aunt, Pavalamati. One suit was filed by Khirmati herself seeking the relief to the effect that the sale deed executed by her dated 24.8.2009 is not binding upon her. The suit was dismissed vide judgment dated 3.10.2017. Khirmati died on 28.5.2014. It is further pleaded that she had executed a registered will deed in favour of the plaintiff on 26.2.2013. It is also pleaded that an application was moved before the Tehsildar to record the plaintiff’s name in the revenue documents pursuant to the will deed. Despite having the knowledge of the pending proceedings before the Tehsildar, the defendants moved a separate application for mutation on 8.8.2022, which was allowed vide order dated 18.8.2022. It is also pleaded that defendant No.1 is attempting to alienate the suit property. An application under Order 39, Rules 1 & 2 of CPC was filed seeking a temporary injunction to restrain the defendants from alienating the property. However, the application was rejected by the learned trial Court vide order dated 11.7.2024. A Miscellaneous Appeal against the said order was also dismissed vide order dated 28.11.2024. 3. Learned counsel for the petitioner would submit that the petitioner/plaintiff has a rightful claim over the property, as a will deed was executed in his favour by the late Khirmati on 26.2.2013. He would contend that a power of attorney was also executed by the late Khirmati in his favour on the same date, and that he is in possession of the suit property. He further submits that the defendant’s application for mutation was allowed by the Tehsildar, and they are now making an 3 attempt to create a third-party interest in the suit property. He would submit that all three ingredients for the grant of a temporary injunction, viz., a prima facie case, the balance of convenience, and irreparable injury, are in favour of the plaintiff and therefore, the Courts below ought to have allowed the application for a temporary injunction. 4. On the other hand, learned counsel for the State would oppose. 5. I have heard learned counsel for the petitioner at length and perused the documents present on the record. 6. Apparently, a will deed was executed in favour of the plaintiff by the late Khirmati on 26.2.2013, and he is claiming the right over the suit property on the basis of the said will deed. It is a well-settled principle of law that mere execution of a will does not confer any legal right over the property unless its validity and genuineness are established according to the provisions of Section 68 of the Evidence Act and Section 63 of the Indian Succession Act. The application for mutation filed by the defendants has already been allowed by the Tehsildar, and at present, the suit property is recorded in their names. The issue regarding the validity of the will deed is still under consideration before the learned Civil Court. Therefore, in my opinion, the learned trial Court rightly rejected the application for temporary injunction, and the learned Appellate Court has not committed any error of law by affirming the said order. 7. Consequently, this petition fails and is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge Nimmi