1 / 4 2025:CGHC:5566 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 141 of 20 24 1. Mirabai W/o Late Narayan Singh Sidar Aged About 70 Years Profession Farming R/o Village - Gaurbahari Tehsil - Tamnar District - Raigarh (C.G.) 2. Sadanand Singh Sidar S/o Late Narayan Singh Sidar Aged About 40 Years Profession Farming R/o Village - Gaurbahari Tehsil - Tamnar District - Raigarh (C.G.) 3. Bharat Singh Sidar S/o Late Narayan Singh Sidar Aged About 35 Years Profession Farming R/o Village - Gaurbahari Tehsil - Tamnar District - Raigarh (C.G.) ... Appellants/ Defendants No. 1 to 3 versus 1. Bhupdev Singh Sidar S/o Kriparam Singh Aged About 65 Years R/o Village Gaurbahari Profession Farming Tehsil Tamnar District - Raigarh (C.G.) (Plaintiff) 2. Sate of Chhattisgarh through the Collector Raigarh (C.G.) ... Respondents For Appellants : Mr. Anuroop Panda, Advocate For Respondent No. 1 For Respondent-State : : Mr. Manoj Sinha, Advocate Mrs. Mandvi Bharadwaj, Panel Lawyer Hon'ble Shri Parth Prateem Sahu, Judg e ORDER ON BOARD 30/01/2025 1. This appeal is filed under Order 43 Rule 1(r) of CPC questioning the legality and sustainability of the order dated 16.10.2024 passed in Civil Suit No. A/13/2023, whereby learned trial court has allowed the application filed under Order 39 Rule 1 & 2 read with Section 151 of CPC by the plaintiff/ Respondent No. 1. PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 4 2. Learned counsel for appellant would submit that learned appellate court has fell into error in passing the impugned order restraining the defendants No. 1 to 3 from interfering with the crop standing over the suit land bearing Khasra No. 256/4 measuring 0.920 hectare overlooking the pleadings made in the plaint. It is contention of learned counsel for appellant that the civil suit filed by Respondent No. 1/ plaintiff is with respect to declaration of title, possession as also permanent injunction from which it is clearly appearing that Respondent No. 1/ plaintiff was not in possession of suit property on the date of filing of suit. He submits that whether the possession of appellants/ defendants no. 1 to 3 is illegal or not is to be decided only after conclusion of trial based on the evidence to be brought on record by the parties. In the demarcation report, possession of plaintiff has been found and only thereafter the civil suit was filed by the plaintiff. After getting knowledge that the land which was possessed by the defendants No. 1 to 3 is recorded in the name of plaintiff, they have submitted a suitable application seeking correction in the revenue entries. 3. Learned counsel for Respondent No. 1/ plaintiff vehemently opposes the submission of learned counsel for appellants/ defendants No. 1 to 3 and further submits that the name of Respondent No. 1 is recorded in the revenue record since 1981-82 after getting the said land in partition. He also contended that the learned trial court considering that the plaintiff/ Respondent No. 1 is the recorded owner as per the revenue entries has rightly passed the impugned order. 4. I have heard learned counsel for the parties and also perused the documents placed on record. 5. Perusal of plaint filed and placed before this Court along with covering memo would show that the suit was filed for declaration of title, possession and permanent injunction with respect to the land bearing khasra no. 256/4 measuring 0.920 hect. In paragraph 4 of the plaint it is specifically pleaded that the land recorded in the name of plaintiff is in possession of defendants 3 / 4 No. 1 to 3 bearing khasra No. 256/4 measuring 0.920 hect, came to knowledge of plaintiff after demarcation, which shows that the possession of defendants over the suit property was since long. The crop over the suit property, if sown, is by defendants no. 1 to 3. Possession of defendants No. 1 to 3 whether legal or illegal is to be decided after conclusion of trial based on the evidence brought on record by the parties, more so when the property in dispute and the parties to the suit are the member of different branches of the same family and the claim of plaintiff is that the suit property was received in partition. 6. When the case of plaintiff itself is that he is not possession over the suit property, learned trial court fell into error in passing the impugned order under Order 39 Rule 1 & 2 restraining defendants no. 1 to 3 from interfering with the standing crops over the suit property. The possession of defendants No. 1 to 3 has been found at the time of demarcation, on an application submitted by plaintiff. 7. While deciding application for grant of temporary injunction under Order 39 Rule 1 & 2 CPC, the Court has to consider whether any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit; that the defendant threatens, or intends, to remove or dispose of his property; that the defendant threatens to dispossesses the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. 8. In the case at hand, as discussed above, it is not the case of plaintiff that he is not in possession though his name is recorded in the revenue records and when he got the suit land demarcated it came to knowledge of plaintiff that it is defendants No. 1 to 3 are in possession of the suit property. It is also not the case of plaintiff that he was forcefully dispossessed from the suit property. None of the conditions as enumerated under Order 39 Rule 1 CPC are attracted. 4 / 4 9. In the aforementioned facts and circumstances of the case, in the opinion of this Court, learned trial court committed error in allowing the application under Order 39 Rule 1 & 2 read with Section 151 of CrPC, hence, it is not sustainable and it is hereby set aside. 10. Accordingly, the appeal is allowed. Sd/- (Parth Prateem Sahu) pwn JUDGE