2026:JHHC:2043 1 C.M.P. 776 of 2025 IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 776 of 2025 (1) Johar Mohli aged about 51 years S/o late Mangar Mohli. (2) Radhiya Devi @ Guriya aged about 50 years W/o late Chhotu Mohli, both r/o village-Topatar P.O.-Sinduri, P.S.-Narayanpur, Dist.- Jamtara .......Defendants/Petitioners -versus- (1) Jitendra Mohli S/o late Sokhilal Mohli. (2) Rabia Mohli S/o late Sokhilal Mohli, both 1& 2 r/o village-Sawlapur, P.O.-Pabia, P.S.-Narayanpur, District- Jamtara. (3) Anpi Devi D/o late Sokhilal Mohli, W/o Purna Mohli, r/o village- Mohanpur, P.O.-Mohanpur, P.S.-Karmatara, District- Jamtara. (4) Sona Kumari D/o late Sokhilal Mohli, W/o Sunil Mohli, r/o village- Gartopa, P.O. & P.S.-Govindpur, District- Dhanbad. (5) Hemanti Devi D/o late Sokhilal Mohli, W/o Binod Mohli, r/o village- Champapur(Borwa Tola), P.O. & P.S.-Narayanpur, District- Jamtara. (6) Minor Arti Kumari D/o late Kamla Devi and Sokhilal Mohli, r/o village- Sawlapur, P.O-Pabia, P.S.-Narayanpur, District Jamtara, minor represented through her father and natural guardian Jitendra Mohli. (7) Putlia Devi D/o late Sanichar Mohli, W/o Gurja Mohli, r/o village- Sawlapur, P.O.-Pabia, P.S-Narayanpur, District-Jamtara (8) Sajni Devi D/o late Sanichar Mohli, W/o Ramu Mohli, r/o village- Mohanpur, P.O.-Pattajoria, P.S.-Karmatar, District- Jamtara (9) Dewanti Devi D/o late Alki Devi & Gurja Mohli, W/o Santosh Mohli (10) Jitlal Mohli S/o late Alki Devi & Gurja Mohli. (11) Subhas Mohli S/o late Alki Devi & Gurja Mohli, all 9 to 11 r/o village- Ranidih, P.O.-Gundlipahari, P.S. & District Jamtara. (12) Dharmendra Mohli S/o late Fuleshawar Mohli. (13) Mahendra Mohli S/o late Fuleshawar Mohli. (14) Raju Mohli S/o late Fuleshawar Mohli. (15) Minor Mina Kumari D/o Fuleshawar Mohli. (16) Minor Rina Kumari D/o Fuleshawar Mohli, both 15 & 16 are minors represented through her natural guardian and mother Putulia Devi. (17) Ajay Mohli S/o late Fulchand Mohli. (18) Bijay Mohli S/o late Fulchand Mohli. (19) Minor Bishal Mohli S/o late Fulchand Mohli. (20) Minor Bindiya Kumari D/o late Fulchand Mohli. (21) Minor Gulap Mohli S/o late Fulchand Mohli, 19 to 21 are minors represented through their guardian and own brother Ajay Mohli, all 12 to 21, r/o village- Sawlapur, P.O.-Pabia, P.S. Narayanpur, Dist.- Jamtara. (22) Niriya Devi W/o late Mangar Mohli. (23) Gendia Devi W/o late Karu Mohli (24) Minor Rajendra Mohli S/o late Karu Mohli (25) Minor Jitendra Mohla S/o late Karu Mohli. (26) Minor Devendra Mohli 5/o late Karu Mohli. (27) Minor Abindra Mohli S/o late Karu Mohli. (28) Minor Urmila Kumari D/o late Karu Mohli (29) Minor Sunita Kumari D/o late Karu Mohli 24 to 29 are minors 2026:JHHC:2043 2 C.M.P. 776 of 2025 represented through their mother and natural guardian Gendia Devi, all 22 to 29 r/o village-Topatar, P.O.-Sinduri, P.S-Narayanpur, District- Jamtara. (30) Upasi Devi D/o late Mangar Mohli, W/o Bhikhu Mohli, r/o village- Jagwadih, P.O.-Sinduri, P.S.-Narayanpur, District-Jamtara (31) Panwa Devi W/o late Hiralal Mohli. (32) Pramod Mohli s/o Hiralal Mohli, both 31 & 32 r/o village- Topatar, P.O.- Sinduri, P.S.-Narayanpur, District-Jamtara (33) Sarita Devi W/o Ramananda Mohli, D/o late Podima Devi & Binod Mohli, r/o village Karriyatola, P.O.& P.S.-Sarwan, District- Deoghar. (34) Minor Mamta Kumari D/o late Podima Devi & Binod Mohli C/o late Hiralal Mohli. (35) Minor Karan Kumari D/o late Podima Devi & Binod Mohli C/o late Hiralal Mohli. (36) Kali Kumari D/o late Podima Devi & Binod Mohli C/o late Hiralal Mohli. (37) Suresh Mohli S/o late Chhotu Mohli. (38) Prakash Mohli s/o late Chhotu Mohli, both 34 to 38 r/o village Topatar, P.O.-Sinduri, P.S.-Narayanpur, District- Jamtara. (39) Thayum Devi W/o Ranjit Mohli, D/o late Chhotu Mohli, r/o village- Tetulbandha, P.O.& P.S.-Karmatar, District- Jamtara. (40) Minor Manta Kumari D/o late Chhotu Mohli. (41) Minor Chinta Kumari D/o late Chhotu Mohli, both 40 & 41 r/o village- Topatar, P.O.-Sinduri, P.S.-Narayanpur, District- Jamtara. (42) Jay Narayan Mohli S/o late Shyamlal Mohli (43) Shankar Mohli S/o late Shyamlal Mohli. (44) Rajeeb Mohli s/o late Shyamlal Mohli, 42 to 45 r/o village Sawlapur. P.O.-Pabia, P.S.-Narayanpur, Dist.-Jamtara. (45) Budho Devi W/o Janki Mohli, D/o late Shyamlal Mohli, r/o village- Jagwadih, P.O.-Sinduri, P.S.-Narayanpur, District- Jamtara. (46) Badri Devi W/o late Musri Mohli, D/o late Shyamlal Mohli r/o village- Udaypur, P.O. & P.S.-Gandey, District- Giridih. (47) Ram Prasad Mohli S/o Takdhum Mohli & late Kalgujri Devi, r/o village- Rampur, P.O.-Pathrol, P.S.-Karon, Dist.- Deoghar (48) Fulmoni Mohli D/o late Kandan Mohli, W/o late Lagan Mohli, r/o village & P.O. Benagoria, P.S.-Nirsa, Dist.- Dhanbad. (49) Sugia Devi D/o late Kandan Mohli, W/o Ashutosh Mohli, r/o village- Baraband (Gopinathdih), P.O.-Pradhankhanta, P.S.-Baliapur, Dist.- Jamtara. ......Defendants/Respondents/ Opposite party(s) ….... CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR For the Petitioner(s) : Mr. Nityanand Prasad, Advocate For the O.P. No.1 to 8,13, : Mr. Kaushik Sarkhel, Advocate 15 to 21 : Mr. Abhishek Singh, Advocate 2026:JHHC:2043 3 C.M.P. 776 of 2025 13/27.01.2026 The present C.M.P. has been filed for the following relief(s): For quashing / set aside the order dated 31.01.2025 (Annexure-4) passed by Sri Radha Krishan, the learned Principal District Judge, Jamtara in Civil Appeal No. 11 of 2024 whereby and where under the learned Appellate Court has been pleased to allow the appeal filed by the appellants/ Plaintiffs and set aside the order dated 02.04.2024 (Annexure-3) passed by the learned Civil Judge ( Senior Division)-II, Jamtara by which the learned Civil Judge rejected the petition filed by the Plaintiffs on 29.01.2024 under order 39 Rule 1 & 3 C.P.C for temporary injunction in Original Suit No. 37 of 2021, pending in the court of learned Civil Judge (Sr. Division)-II, Jamtara.” 2. The present proceeding emerges from a Partition suit being Original Suit No.37 of 2021 wherein a petition under order 39 rule 1&2 of the Civil Procedure Code (C.P.C.) was filed for restraining the respondents from making any construction, in which a pleader commissioner has been appointed. After going through the report of the pleader commissioner, the learned trial court observed that since the construction work is going on and defendant have admitted that they are renovating the old house, as such, injunction has been refused. 3. The said order was challenged in Civil Appeal No. 11 of 2024 wherein the learned Principal District Judge, Jamtara vide order dated 31.01.2025 allowed the appeal filed by the appellants/plaintiff and set aside the order dated 02.04.2024 passed by the learned Trial Court in the petition under Order 39 Rule1 & 2 of the CPC. 4. Prima facie, the appellate order appears to be wholly without jurisdiction. It has been passed on the pretext that construction has been made by one Salauddin Mian S/o of Rafique Mian, who is not a party to the proceeding. 5. Nobody can be restrained who is not a party to the proceeding, since, the very object of the order passing under Order 39 Rule 1 and 2026:JHHC:2043 4 C.M.P. 776 of 2025 2 CPC has to be applied between the parties. Since, Salauddin Mian S/o Rafique Mian is not a party, therefore, the order passed on the presumption that the said Salauddin Mian is making construction, is wholly without jurisdiction. 6. Learned counsel for the opposite parties has defended the order saying that since it is a suit property, the Court has every power to pass an order. Further, allowing the construction will amounts to creation of third party right. 7. Having heard learned counsel for the parties and on perusal of the record, especially the pleader commissioner report, it transpired that some portion of the suit land is in possession of the Salauddin Mian. The construction is being made by Salauddin Mian, which cannot be a ground for restraining Salauddin Mian from making the construction when he is not party to the proceeding. 8. Even if it is presumed that the construction is being made by Johar Mohli, he is replacing his old construction by a new construction and he is one of the share holder that has been accepted by the parties because it is a partition suit. 9. Order 39 Rule1 & 2 provides three criteria: 1. Prima facie case 2.Balance of convenience 3. Irreparable loss. 10. In the present case, it is a partition suit and Johar Mohli has every right being the shareholder and he is possessing a piece of land with existing residential house, which is being replaced by the pucca structure. There is possession of the residential house. Balance of convenience lies in favour of Johar Mohli and there is no irreparable loss made to any parties because the nature of land is not being changed because there is existing structure over the said piece of land. 11. It is settled principle of law that any trial is between the parties and it can affect only the parties to the proceeding not to a person, who is not a party to the proceeding. This basic factual matrix has 2026:JHHC:2043 5 C.M.P. 776 of 2025 been overlooked by the appellate court while reversing the order dated 02.04.2024 passed by the trial court in Original Suit No. 37 of 2021. 12. In that view of the matter, I find that the order dated 31.01.2025 passed by the learned Principal District Judge, Jamtara in Civil Appeal No. 11 of 2024 rejecting the order dated 02.04.2024 passed under Order 39 Rule 1& 2 CPC by the learned trial Court of Civil Judge (Senior Division)-II, Jamtara in Original Suit No. 37 of 2021, is wholly without jurisdiction and is accordingly set aside. 13. The CMP is allowed, accordingly. (Rajesh Kumar, J.) 27.01.2026 A. Mohanty Uploaded ____/____/2026