Heard learned counsel for the appellant.

2. The appellant is plaintiff.

3. The plaintiff has instituted the suit for declaration of right, title and interest, confirmation of possession of the suit land and in alternative for recovery of possession.

4. The disputed land so far as present proceeding is concerned, has been mentioned in Schedule-E.

5. The plaintiff is claiming title over the Schedule-E land on the basis of registered sale deed from Niranjan Mahtha, Prabhakar Mahatha and Kiran Chandra Mahtha, who are the respondents herein and on that basis the plaintiff has claimed that they have come into possession of the suit land.

6. The defendants have taken a plea that the suit land in question is a joint family property. The defendants have claimed the suit land from Sunderbala Debya who is one of the co-sharer of the property in question. There are four co-sharer of the Schedule-E property. Three co-sharers sold the property in favour of the plaintiff and one co-sharer sold the property in favour of the defendant nos. 1 to 4, who are subsequent purchaser from the Sunderbala Debya. Thus four shareholders are of the suit property of Schedule-E.

7. Now the question is only with regard to share and the specific share of the vendors.

8. Both the parties are claiming title over the suit land and certainly it is a triable issue and there is prima facie case. So far as balance of convenience, irreparable loss and injury are concerned, it depends upon the possession of the suit land.

9. It has been pleaded in the petition under Order 39 Rule 1 & 2 of the CPC that defendants are making construction over the suit land and for this purpose they are using JCB Machine and hoarding sands, bricks and cement etc.

10. Thus construction is being made by the defendants. This itself suggests that defendants are in possession of the suit land. The present finding is being recorded only for the purpose of the present petition filed under Order 39 Rule 1 & 2 of the CPC. This is not relating so far as merits of the suit is concerned.

11. From perusal of the impugned order of the Trial Court, it appears that the Trial Court has gone into prima facie case of title and after elaborate consideration it has been recorded that defendant has better case than the plaintiff so far as suit land is concerned. This approach of the Trial Court is not in accordance with law.

12. Learned counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Dalpat Kumar Vs. Prahlad Singh reported in (1992) 1 SCC 719. Para-4 of the said judgment is quoted herein 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 injunction is to preserve the subject matter of