Jharkhand High Court
Shankar Sarangi Aged About 71 Years Son ... vs Basant Sarangi on 23 July, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:20235
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Misc. Appeal No. 169 of 2025
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Shankar Sarangi aged about 71 years son of late Aditya Prasad Sarangi,
resident of Village Masmano, PO and PS Karra, District Khunti, at present
Residing at Lane No.06, Poddar Colony, Sadar Sambalpur, P.O. and P.S.
Khetrajpur, District Sambalpur( Odisha). .... ... Plaintiff/ Appellant(s)
-- Versus --
1.Basant Sarangi
2.Chunku Sarangi
3.Biranchi Srangi
All sons of Kapur Sarangi, residents of Village Masmano PO and PS
Karra District Khunti, Jharkhand
4.Chandan Kumar son of late Moti Ram Sahu
5.Ranjan Kumar, son of late Moti Ram Sahu
6.Sheela Devi wife of late Moti Ram Sahu
All residents of Argora, (Pundag Road, P.O. and P.S. Argora, District-
Ranchi (Jharkhand)
7.Amit Kumar aged about 47 years son of Narayan Sahu, resident of
Village Parwal, PO and PS Bharno, District Gumla, Jharkhand
..... Defendants/ Respondents.
8.Satyanarayan Sarangi, aged about 80 years son of late Aditya Prasad
Sarangi, resident of Village Masmano, PO and PS Karra District Khunti,
Jharkhand, present residing at Tangarpali/Ethapali, Sadar, District
Sambalpur, Budhraja, PO and PS Ethapali, District Sambalpur, Odisha
9.Arti Sarangi, aged about 58 years daughter of late Bharat Bhushan
Sarangi, resident of Lane No.06 Poddar Colony Sadar Sambalpur, PO and
PS Khetrajpur, District Sambalpur, Odisha
10.Manoj Kumar Sarangi, aged about 67 years, r/o Village Paradesipda,
Ssadar, PO and PS Khetrajpur, District Sambalpur (Odisha)
...... Proforma Defendants/ Proforma Respondents
11.Kishore Kumar Sarangi, aged about 68 years son of late Aditya Prasad
Sarangi, r/o Village Paradesipda, Ssadar, PO and PS Khetrajpur, District
Sambalpur, Odisha
12.Jagdish Sarangi, aged about 62 years, son of late Aditya Prasad
Sarangi, r/o Vill. Paradesipda, Ssadar, PO and PS Khetrajpur, District
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Sambalpur, Odisha
13.Loknath Sarangi, aged about 56 years son of late Ram Narayan
Sarangi, R/o Village Paradesipda, Ssadar, PO and PS Khetrajpur, District
Sambalpur, Odisha
14.Manju Nand, aged about 72 years daughter of late Aditya Prasad
Sarangi, resident of Village Masmano, PO and PS Karra, District-Khunti
(Jharkhand, at present residing at Mukti Path Palkot Marg, Gumla, P.O.
and P.S. Gumla, District Gumla, Jharkhand
..... Plaintiffs/ Proforma Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant(s) :- Mr. Saurabh Shekhar, Advocate
For the O.P.Nos.1-3 :- Mr. Rohitashya Roy, Advocate
For the O.P.Nos.4-7 :- Mr. Vibhor Mayank, Advocate
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5/23.07.2025 Heard Mr. Saurabh Shekhar, Mr. Rohitashya Roy and Mr. Vibhor
Mayank, the learned counsels appearing on behalf of the petitioners, the
O.P.Nos.1 to 3 as well as O.P.Nos.4 to 7, respectively.
2. This appeal has been preferred under Order 43 Rules (i) (r) of the
Code of Civil Procedure (CPC) for setting aside the order dated 26.03.2025
under Order XXXIX Rule 1 r/w Section 151 of the CPC registered as M.C.A
No.15 of 2024 filed by the appellant/plaintiff arising out of Original Suit No.58
of 2024 whereby the learned court has been pleased to reject the prayer of
temporary injunction over the sale of the property in dispute at the hands of the
defendants who are Opposite party nos.1 to 7. The prayer is further made to
grant temporary injunction in favour of the appellant/plaintiff.
3. Mr. Saurabh Shekhar, the learned counsel appearing on behalf of
the petitioner submits that the Original Suit No.58 of 2024 has been instituted
by the appellant/plaintiff and others who are plaintiff/proforma respondents in
the suit praying therein for declaration of right, title and interest in their favour
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in connection with the land appearing in Schedule-A. He submits that in
Schedule-A the plot nos. and area has been described and the total area of the
plots are 23.685 acres. He further submits that Fakira Sarangi was the ancestor
of defendant nos.1 to 3 and Baijnath Sarangi was the ancestor of plaintiff/
appellant who were uterine brothers and they were having equal share in the
Schedule land under Khata No.3, 27, 28, 16 and 89 of Village-Masmano. He
then submits that in R.S. Record of Rights both the aforesaid Fakira Sarangi and
Baijnath Sarangi amicably partitioned the lands under Khata No.3, 27, 28, 16
and 89 of Village-Masmano between themselves by entering into a
Memorandum of Family Arrangement on 16.11.1942. According to him, the land
being in khas cultivating possession of the aforesaid Baijnath Sarangi was
allowed to be retained by him on payment of rent and accordingly aforesaid
Baijnath Sarangi was recognized as a raiyat by the State and fair rent with
respect of the aforesaid 23.68 ½ acres of land under Khata No.3, 16 and 28 of
Village Masmano described in Schedule-A was assessed under the relevant
provisions of Bihar Land Reforms Act, 1950 vide Rent Fixation Case No.450 R
8/1957-58. In the meantime, the said Baijnath Sarangi went to Sambalpur
(Odisha) for earning livelihood and started living there with his family members.
However, he used to visit his native village and used to look after his property.
He enjoyed peaceful possession of the aforesaid property. He submits that the
appellant/ plaintiffs are the successors of Baijnath Sarangi and the defendant
nos.1 to 3 who are O.P.Nos.1 to 3 are the legal heirs/successors of another
recorded tenant, that is, Fakira Sarangi. Fakira Sarangi died leaving behind his
only son namely, Govind Sarangi, who too died leaving behind his only son
Kapur Sarangi and he also died leaving behind his three sons namely, Basant
Sarangi, Chunku Sarangi and Biranchi Sarangi who are the defendant nos.1 to
4. He submits that on 18.12.2023, when the appellants were carrying
on measurement work upon plot nos. 735, 744, 752/990, 744/996 and 752 of
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Village Masmano in order to construct boundary wall for its safety, the
defendants along with some antisocial elements started disturbance upon the
same which has been reported by the appellants to the concerned police station
and pursuant thereto, the defendants demanded rupees ten crores for carrying
out construction work upon the suit land and the criminal case has also been
lodged by the defendants being Karra P.S. Case No.10 of 2024 on 15.01.2024.
He submits that after lodging the said FIR the defendants with the help of
others forcibly started construction of boundary wall over some portion of the
suit land which was reported to the Sub Divisional Officer, Khunti and Deputy
Commissioner, Khunti as well as Circle Officer, Khunti respectively on
24.01.2024 and 25.01.2024. He further submits that in the meantime, the
boundary wall which has been erected by the appellants herein has also been
demolished and the police has not registered the case and a Complaint Case
No.64 of 2024 was lodged in the court of learned S.D.J.M. He submits that for
the first time, it has been transpired that to the appellant that while he was
residing at Sambalpur the father of the defendant Kapur Sarangi has created a
sham and bogus deed of partition being Deed No.5921 of the year 1972 and
other deeds and thereafter the suit has been instituted. He submits that the
some of the part of the suit land has already been sold out and in that view of
the matter, a petition under Order XXXIX Rules 1 and 2 of the CPC has been
filed before the learned court which has been rejected by the learned court on
the ground that prima facie case as well as balance of convenience and
irreparable loss has not been established by the appellants herein. He draws
the attention of the Court to the impugned order and submits that the learned
court has not considered the prima facie case in its right perspective. He
submits that although the finding in the impugned order itself is there the
appellants and the respondents who are the plaintiffs and defendants
respectively belong to the same family tree having common ancestors and in
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spite of that, it has been rejected only on the ground that Memorandum of
Family Arrangement of the year 1942 is not on the record and further to the
extent the portion of the suit land has already been sold to the defendant nos.4
to 7 and thereafter there is no possibility of selling it further. He submits that
this finding is not in accordance with law and there is every possibility of selling
out further the suit land as well as the same also and according to him, the
active participation has been made by the defendant nos.4 to 7 for selling of
the land and for that, they have also went on the spot and in view of that, the
proceeding under section 163 of Bhartiya Nagrik Suraksha Sanhita (BNSS),
2023 has been instituted. He further submits that the learned court on a wrong
presumption has applied Section 52 of the Transfer of Property Act in a petition
filed under Order XXXIX Rule 1 and 2 of the CPC and to buttress his such
argument, he has relied in the case of K. Ravi Prasad Reddy and Others v.
G. Giridhar and Others reported in MANU/AP/0075/2022 and has
referred to paragraph nos.14, 17, 21, 24, 25 and 28 of the said judgment,
which are as under:
"14. In view of the submissions advanced, the following points arise
for consideration and determination;
i) Whether Section 52 of the Transfer of Property Act operates as a bar
to the grant of temporary injunction under Order 39 Rules 1 and 2 CPC?
ii) Whether the impugned order granting temporary injunction suffers
from any error of law or of jurisdiction and calls for interference in the
exercise of appellate jurisdiction?
17. In A.Nawab John v. V.N.Subramaniyam1 the Hon'ble Supreme
court held that Section 52 of the Transfer of Property Act incorporates
the doctrine of lis pendens, and it stipulates that during the pendency of
any suit or proceeding in which any right to immovable property is,
directly or specifically, in question, the property, which is the subject
matter of such suit or proceeding cannot be transferred or otherwise
dealt with, so as to affect the rights of any other party to such a suit or
proceeding. It has further been held that it is also settled legal position
that the effect of Section 52 is not to render transfers effected (2012) 7
SCC 738 7 CPK,J & RNT,J CMA.Nos.43 & 45 of 2021 during the pendency
of a suit by a party to the suit void; but only to render such transfers
subservient to the rights of the parties to such suit, as may be,
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eventually, determined in the suit. In other words, the transfer remains
valid subject to the result of the suit. The pendent lite purchaser would
be entitled to or suffer the same legal rights and obligations of his
vendor as may be eventually determined by the court. It is relevant to
reproduce paragraphs Nos.16, 17 and 18 as under:
"16. This Court in Jayaram Mudaliar v. Ayyaswami3 (paras 42 to
44) quoted with approval a passage from Commentaries on the
Laws of Scotland, by Bell, which explains the doctrine of lis
pendens: (SCC p. 217, para 43) "43. ... Bell, in his Commentaries on
the Laws of Scotland, said that it was grounded on the maxim:
'Pendente lite nibil innovandum'. He observed:
'It is a general rule which seems to have been recognised in all
regular systems of jurisprudence, that during the pendence of an
action, of which the object is to vest the property or obtain the
possession of real estate, a purchaser shall be held to take that
estate as it stands in the person of the seller, and to be bound by
the claims which shall ultimately be pronounced.'"
17. section 52 of the Transfer of Property Act, 1882 (for short "the TP
Act") incorporates the doctrine of lis pendens and it stipulates that
during the pendency of any suit or proceeding in which any right to
immovable property is, directly or specifically, in question, the property,
which is the subject-matter of such suit or proceeding cannot be
"transferred or otherwise dealt with", so as to affect the rights of any
other party to such a suit or proceeding. The section is based on the
principle:
"41. ... '... that it would plainly be impossible that any action or
suit could be brought to a successful termination, if alienations
pendente lite were permitted to prevail. The plaintiff would be
liable in every case to be defeated by the defendant's alienating
before the judgment or decree, and would be driven to
commence his proceedings de novo, subject again to be defeated
by the same course of proceeding.'" (Bellamy v. Sabine5, ER p.
849) 8 CPK,J & RNT,J CMA.Nos.43 & 45 of 2021 Quoted with
approval by this Court in Vinod Seth v. Devinder Bajaj6. (SCC p.
20, para 41)
18. It is settled legal position that the effect of Section 52 is not
to render transfers effected during the pendency of a suit by a
party to the suit void; but only to render such transfers
subservient to the rights of the parties to such suit, as may be,
eventually, determined in the suit. In other words, the transfer
remains valid subject, of course, to the result of the suit. The
pendente lite purchaser would be entitled to or suffer the same
legal rights and obligations of his vendor as may be eventually
determined by the court.
"12. ... The mere pendency of a suit does not prevent one of the
parties from dealing with the property constituting the subject-
matter of the suit. The section only postulates a condition that
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the alienation will in no manner affect the rights of the other
party under any decree which may be passed in the suit unless
the property was alienated with the permission of the court."
(Sanjay Verma v. Manik Roy7, SCC p. 612, para 12.)
21. In Dalpat Kumar v. Prahlad Singh4 the Hon'ble Supreme Court
has held that 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. The Hon'ble Apex Court further held that there should be
prima facie case in favour of the applicants which needs adjudication at
the trial. The existence of the prima facie right and infraction of the
enjoyment of his property or the right is a condition for the grant of
temporary injunction. Prima facie case is not to be confused with prima
facie title which has to be established, on evidence at the trial. (1992) 1
SCC 719 13 CPK,J & RNT,J CMA.Nos.43 & 45 of 2021 Only prima facie
case is a substantial question raised, bona fide, which needs
investigation and a decision on merits. Satisfaction that there is a prima
facie case by itself is not sufficient to grant injunction. The Court further
has to satisfy that non-interference by the Court would result in
"irreparable injury" to the party seeking relief and that there is no other
remedy available to the party except one to grant injunction and he
needs protection from the consequences of apprehended injury or
dispossession. Irreparable injury, however, does not mean that there
must be no physical possibility of repairing the injury, but means only
that the injury must be a material one, namely one that cannot be
adequately compensated by way of damages. The third condition also is
that "the balance of convenience" must be in favour of granting
injunction. The Court while granting or refusing to grant injunction
should exercise sound judicial discretion to find the amount of
substantial mischief or injury which is likely to be caused to the parties,
if the injunction is refused and compare it with that which is likely to be
caused to the other side if the injunction is granted.
24. From the aforesaid, we are of the considered view
that Section 52 of T.P.Act although provides protection to the parties
from transfers pendent lite, in as much as it makes such transfers
subservient to the decree that may be passed in the suit, but it does not
come in the way of passing an order of temporary injunction restraining
alienation of the suit property during the pendency of the suit on the
applicant satisfying all the three ingredients of prima facie, balance of
convenience and causing irreparable loss or injury in his favour.
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25. The distinction between Section 52 of T.P.Act and Order 39
Rules 1 and 2 CPC, is that an order of temporary injunction is of pre-
emptive nature restraining the act of alienation by party to the suit
where there is such a danger, whereas Section 52 of T.P.Act comes into
play after the alienation takes place during pendency of the suit. Section
52 of T.P.Act provides for the consequences of a transfer taking place
pending litigation, i.e., that the pendent lite purchaser would be entitled
to or suffer the same legal rights and obligations of his vendor(s) that
may be finally determined by the court. Section 52 of T.P.Act does not
come in the way of applicability of Order 39 Rules 1 & 2 CPC. In other
words, notwithstanding Section 52 of T.P.Act making the transfers
during pendency of the suit subject to the ultimate decree that may be
passed in the suit, the court may, pass an order of temporary injunction,
if all the requisite pre-conditions for such grant are satisfied. If an order
is passed and transfer is restrained, the question of applicability
of Section 52 of T.P.Act will not arise as then there will be no transfer
pending litigation. On the other hand, if the party does not apply for
temporary injunction or if the application is rejected and the suit
property is transferred pending 16 CPK,J & RNT,J CMA.Nos.43 & 45 of
2021 litigation, Section 52 of T.P.Act shall come into play and those
transfers would abide by the ultimate result of the suit.
28. For the aforesaid reasons, we are not inclined to accept the
contention of the learned counsel for the appellant that in view
of Section 52 of T.P.Act providing for the effect of transfers during
pendency of the suit, the order of temporary injunction under Order 39
Rules 1 and 2 could not be passed. If such an argument is accepted, then
the court cannot pass an order of temporary injunction to restrain
alienation in spite of specific provision under Order 39 Rule 1(a) CPC, in
any case, as in every case any alienation made pending litigation would
abide by the 19 CPK,J & RNT,J CMA.Nos.43 & 45 of 2021 doctrine of lis
pendens embodied under Section 52 of T.P.Act. This will render the
provisions of Order 39 Rules 1 & 2 CPC ineffective."
5. Relying on the above judgment, he submits that prima facie case
is required to be considered keeping in mind the title which has to be
established on evidence in the trial. He further submits that in light of the said
judgment, if a petition under Order XXXIX Rules 1 and 2 of the CPC is being
considered on the premises of Section 52 of T.P. Act the provisions of Order
XXXIX Rules 1 and 2 of the CPC will be non-effective as said in the aforesaid
judgment. On this ground, he submits that the prima facie case and balance of
convenience is already made out and in view of that temporary injunction or
status quo, till the disposal of the suit, may kindly be directed.
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6. Per contra, Mr. Rohitashya Roy, the learned counsel appearing on
behalf of the Opposite party nos.1 to 3 opposes the prayer and submits that
prima facie case has not been proved by way of bringing on record the
documents said to be Family Arrangement of the year 1942. According to him,
had that document would have been on the record, he would have in a position
to demonstrate that the prima facie case is not made out. According to him, he
maintains that the Family Arrangement is a forged and fabricated one. He
further submits that even if that document is there, that is required to be
registered under section 17(2) of the Indian Registration Act and further
according to him, the possession has not been found and in view of that the
interim injunction cannot be granted and to buttress his such argument he
relied in the case of Bruce v. Silva Raj and Others reported in 1987 (Supp)
SCC 161 and refers to paragraph no.5 of the said judgment, which is as under:
5. Coming to the connected appeal, it arises out of a suit for
injunction. It is well settled that injunction can be obtained on the basis of
possession. In view of the result of the connected appeal where
possession of the adversary has been confirmed, no injunction was
available to be granted. The civil appeal is allowed and the judgment and
decree of the High Court are set aside and those of the lower appellate
court which dismissed the suit shall stand restored.
7. On the point of registration, he relied in the case of Sita Ram
Bhama v. Ramvatar Bhama reported in (2018) 15 SCC 130 and has
referred to paragraph no.11 of the said judgment, which is quoted below:
11. Pertaining to family settlement, a memorandum of family
settlement and its necessity of registration, the law has been settled by
this Court. It is sufficient to refer to the judgment of this Court
in Kale v. Director of Consolidation [Kale v. Director of Consolidation,
(1976) 3 SCC 119] . The propositions with regard to family settlement,
its registration were laid down by this Court in paras 10 and 11: (SCC pp.
126-27)
"10. In other words to put the binding effect and the essentials of
a family settlement in a concretised form, the matter may be
reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve
family disputes and rival claims by a fair and equitable division or
allotment of properties between the various members of the
family;
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(2) The said settlement must be voluntary and should not be
induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no
registration is necessary;
(4) It is well settled that registration would be necessary only if the
terms of the family arrangement are reduced into writing. Here
also, a distinction should be made between a document containing
the terms and recitals of a family arrangement made under the
document and a mere memorandum prepared after the family
arrangement had already been made either for the purpose of the
record or for information of the court for making necessary
mutation. In such a case the memorandum itself does not create
or extinguish any rights in immovable properties and therefore
does not fall within the mischief of Section 17(2) of the
Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement
must have some antecedent title, claim or interest even a possible
claim in the property which is acknowledged by the parties to the
settlement. Even if one of the parties to the settlement has no title
but under the arrangement the other party relinquishes all its
claims or titles in favour of such a person and acknowledges him
to be the sole owner, then the antecedent title must be assumed
and the family arrangement will be upheld and the courts will find
no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not
involve legal claims are settled by a bona fide family arrangement
which is fair and equitable the family arrangement is final and
binding on the parties to the settlement.
11. The principles indicated above have been clearly enunciated
and adroitly adumbrated in a long course of decisions of this Court
as also those of the Privy Council and other High Courts, which we
shall discuss presently." (emphasis in original)
8. Relying on the above judgment, he submits that criteria of
registration of Family Arrangement has been discussed therein in the said
judgment and in view of that, the document, if any is there, that is required to
be registered. Relying on the above judgment, he submits that it is required to
be registered, particularly, as the stand has been taken that by way of said
Family Arrangement, the partition has occurred. He further submits that this
matter was taken up by this Court on 09.05.2025 and on that day, a request
was made to him to convey the defendants not to sell the property till the next
date. However, in the paper news the plaintiff has interpreted the said request
as interim order passed by this Court and the conduct of the appellant herein
was not good and in this ground he submits that the learned court has rightly
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passed the order.
9. Mr. Vibhor Mayank, the learned counsel appearing on behalf of the
respondent nos.4 to 7 has adopted the argument of Mr. Rohitashya Roy, the
learned counsel appearing on behalf of the respondent nos.1 to 3. He further
submits that in light of the paper news interpreting the request of this Court,
the conduct of the appellant herein is not above Board and he also submits that
the Family Arrangement is not on the record and that is also required to be
registered. He further submits that M-Form has been issued in favour of Kapur
Sarangi which is said to be ancestor of respondent nos.1 to 3 and they are also
paying rent.
10. In view of above submission of the learned counsels appearing on
behalf of the parties, the Court has gone through the materials on record and it
transpires that the appellant/plaintiff and the defendants/respondents nos. 1 to
3 are belong to the same family tree of common ancestors namely, Jagarnath
Sarangi and Baijnath Sarangi. The appellant herein are said to be successors of
Baijnath Sarangi which is an admitted position in the impugned order also. The
learned court has not considered the argument of memorandum of family
arrangement on the ground that no such document is available on the record
and the learned court further on the premises that respondent nos.4 to 7 have
already purchased the property and there is no likelihood of further transfer
rejected the contention. On the point of balance of convenience and irreparable
loss, the learned court has gone to the extent to consider Section 52 of the
Transfer of Property Act in a petition being decided under Order XXXIX Rules 1
and 2 of the CPC. It is an admitted position that it has transpired later on to the
appellants that out of 23.68 ½ acres, 13.23 acres has already been sold by the
father of the O.P.Nos.1 to 3 and that is under challenge, and when it has been
transpired to the appellant, then the suit has been instituted, calling upon the
propriety of the sale deed. Thus, it transpires that still there are the portion of
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the further land are there, which is subject matter of the suit property and only
13.23 acres of the land has been sold out to the defendant nos.4 to 7. It has
been pointed out that active participation has been made by respondent nos.4
to 7 for selling of the said property and in view of that, a case has been
registered under section 163 of Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023
which prima facie suggest that active consideration is there to sell out the
property in question and further it cannot be ruled out that the rests of the
property which is the subject matter of the suit cannot be sold out.
11. Once a property which is the subject matter of the suit, at least till
the deciding of the suit, that property is required to be there, otherwise,
nothing will remain to be decided in the suit once the entire property is sold
out. Thus, the finding of the learned court on the point that there is no
apprehension of selling it out as part is already purchased does not sound
good. So far as the balance of convenience and irreparable loss is concerned,
the learned court has gone into the aspect of considering Section 52 of the
Transfer of Property Act and the answer, in this respect, has been made by
Andhra Pradesh High Court in the case of K. Ravi Prasad Reddy and Others
v. G. Giridhar and Others(supra) as relied by the learned counsel appearing
on behalf of the appellants, wherein at paragraph no.28, it has been clearly
held that, applying Section 52 of the Transfer of Property Act, that will render
the provisions of Section XXXIX Rules 1 and 2 of the CPC ineffective. If the
property of the joint family is being sold out, the irreparable loss to the
appellant cannot be ruled out, and for such relief, the case is not required to be
proved on merit, only the prima facie case is required to be proved for any
interim injunction. From the genealogical table, which is disclosed in the plaint
just below the Schedule-A properties, it is clear, that the parties are co-sharer.
12. It is further well settled proposition of law that if a lis has been
admitted for adjudication, then it has become a duty of the Court to preserve
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the subject matter of the litigation by their appropriate order so that the same is
available at the time of final adjudication and decree does not become a barren
one.
13. What has been discussed hereinabove, prima facie, it appears that
the attempts have been made to sell out the property and once the property will
be sold out, nothing will remain to be decided and the decree will be a legal
formality.
14. So far as the judgment relied upon by Mr. Rohitashya Roy, the
learned counsel appearing for the O.P.Nos.1 to 3, in the case of "Bruce v. Silva
Raj and Others"(supra) with regard to possession is concerned, that is not in
dispute, but there are other aspects, that are also required to be considered.
Further, if the appellant/ plaintiff has a strong case for trial, and if that is there,
that it will be of a higher standard than a prima-facie case, this aspect of the
matter has been considered by the Hon'ble Supreme Court in the case of
Sameer Narayan Ojwani v. Arora Properties and Investments and
Others reported in (2018) 17 SCC 203 wherein at paragraph nos.24 and 26,
it has been held as under:
"24. That apart, the learned Single Judge as well as the Division
Bench have committed fundamental error in applying the principle of
moulding of relief which could at best be resorted to at the time of
consideration of final relief in the main suit and not at an interlocutory
stage. The nature of order passed against the appellant is undeniably a
mandatory order at an interlocutory stage. There is marked distinction
between moulding of relief and granting mandatory relief at an
interlocutory stage. As regards the latter, that can be granted only to
restore the status quo and not to establish a new set of things differing
from the state which existed at the date when the suit was instituted.
This Court in Dorab Cawasji Warden v. Coomi Sorab Warden [Dorab
Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117] , has had
occasion to consider the circumstances warranting grant of interlocutory
mandatory injunction. In paras 16 & 17, after analysing the legal
precedents on the point as noticed in paras 11-15, the Court went on to
observe as follows : (SCC pp. 126-27)
"16. The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the last
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non-contested status which preceded the pending controversy until
the final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done or the
restoration of that which was wrongfully taken from the party
complaining. But since the granting of such an injunction to a party
who fails or would fail to establish his right at the trial may cause
great injustice or irreparable harm to the party against whom it was
granted or alternatively not granting of it to a party who succeeds or
would succeed may equally cause great injustice or irreparable
harm, courts have evolved certain guidelines. Generally stated these
guidelines are:
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher
standard than a prima facie case that is normally required for a
prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally
cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an
interlocutory mandatory injunction shall ultimately rest in the sound
judicial discretion of the court to be exercised in the light of the facts and
circumstances in each case. Though the above guidelines are neither
exhaustive nor complete or absolute rules, and there may be exceptional
circumstances needing action, applying them as prerequisite for the
grant or refusal of such injunctions would be a sound exercise of a
judicial discretion." (emphasis supplied)
26. The principle expounded in this decision has been consistently
followed by this Court. It is well established that an interim mandatory
injunction is not a remedy that is easily granted. It is an order that is
passed only in circumstances which are clear and the prima facie
material clearly justify a finding that the status quo has been altered by
one of the parties to the litigation and the interests of justice demanded
that the status quo ante be restored by way of an interim mandatory
injunction. [See Metro Marins v. Bonus Watch Co. (P) Ltd. [Metro
Marins v. Bonus Watch Co. (P) Ltd., (2004) 7 SCC 478] , Kishore Kumar
Khaitan v. Praveen Kumar Singh [Kishore Kumar Khaitan v. Praveen
Kumar Singh, (2006) 3 SCC 312] and Purshottam Vishandas
Raheja v. Shrichand Vishandas Raheja [Purshottam Vishandas
Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73 : (2011) 3 SCC
(Civ) 204]"
15. What has been discussed hereinabove, a strong case of trial is very
much there so far the case in hand is concerned and that is going on and
attempts are being made to sell out the property. So far as the family
arrangement is concerned and the registration of that document is concerned,
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that can be a subject matter of the trial and onus lies upon the
appellant/plaintiff to prove his case by way of leading evidence to that effect.
For granting temporary injunction, the materials on the record, as discussed
hereinabove, clearly suggest that once the properties is sold out, the decree will
be only a formality.
16. So far as the paper news with regard to the order of this Court is
concerned, it transpires that paper reporting by news-paper reporter was done
and a petition is on the record, filed before the learned S.D.J.M., Khunti by
appellant which clearly suggest that so far the order of this Court is concerned,
that has been quoted in clear terms and it is not clear that whether the mischief
with regard to paper news has been made by the appellant/plaintiff or not.
17. In view of above facts, reasons and analysis, this appeal succeeds
and impugned order dated 26.03.2025, passed by learned Civil Judge, Senior
Division-I, at Khunti, under Order XXXIX Rule 1 r/w Section 151 of the CPC
registered as M.C.A No.15 of 2024, arising out of Original Suit No.58 of 2024,
is, hereby, set-aside.
18. Accordingly, the petition filed for interim injunction is allowed.
19. This Court restrained the Opposite Parties/Defendants in the suit
from transferring the suit property to any person.
20. The Status-quo, till the disposal of the title suit, shall be
maintained by the respective parties.
21. With the above observation, this appeal is allowed and disposed.
22. Pending petition, if any, also stands disposed of.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.
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