The court affirmed the triple test for granting temporary injunctions: the plaintiff must establish a prima facie case, balance of convenience, and risk of irreparable injury, with emphasis on the appropriateness of these findings in the context of property disputes.

JUDGMENT :

B.P. ROUTRAY, J.

1. Heard Mr. B.C. Panda, learned Advocate for the Petitioner and Mr. A.K. Sarangi, learned Advocate for the Opposite Party.

2. Present C.M.P. is directed against order dated 25.01.2025 of the learned Additional District Judge, Kendrapara passed in F.A.O. No.44 of 2019, wherein the interim order of temporary injunction against the Defendant as passed by the learned trial court was set aside.

3. Present Petitioner being the Plaintiff filed the suit with a prayer to declare the deed of partition dated 21.04.1999 as inoperative in respect of the suit land on the ground of fraud, as well as to set aside the sale deed made in favour of Defendant No.1.

4. The admitted fact remains that the Plaintiff and Defendant No.2 belong to same family and Defendant No.1 purchased the suit land from Defendant No.2 on the basis of the registered partition deed dated 21.04.1999 and the sale deeds have been executed in favour of Defendant No.1 on 19.02.2010 and 02.02.2011. According to Defendant No.1, he by virtue of the registered sale deeds acquired possession of the suit land and mutated the same in his favour from the competent authority. Nonetheless, such transfer of suit land in favour of Defendant No.1 vide aforesaid sales by Defendant No.2 being challenged before the Collector, Kendrapara and the Collector vide order dated 20.03.2013 declared such sale as void for violation of Section 34 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (“OCH & PFL Act”). The order of the Collector, Kendrapara dated 20.03.2013 was subsequently challenged by Defendant No.1 in W.P.(C) No.23477 of 2013 and pending decision of said writ petition, the order of the Collector dated 20.03.2013 remain stayed. Ultimately, the writ petition was dismissed for default on 04.11.2024. But in the meantime, the Amendment to the OCH & PFL Act was effected w.e.f. 29.12.2023 nullifying the effect of prohibition of transfer of Chaka-land in terms of Section 34 retrospectively, where the possession of the land has not been returned. The copy of the order passed in the writ petition is produced by Mr. R.K. Mohapatra, learned counsel for the Opposite Party for reference.

5. Such development of facts regarding amendment of the OCH & PFL Act and the order of stay passed by this Court in the writ petition was not stated in the plaint and also not brought to the knowledge of the court by Defendant No.1 in his objection to the I.A. filed under Order 39 Rule 1 & 2 of the C.P.C. Thus, the learned trial court in order dated 06.05.2017 gave certain findings with regard to possession of the parties in respect of the suit land ignorant with such development of facts. Of course, the cancellation of registered partition deed as prayed by the Plaintiff in the suit is a separate matter to be decided on merit irrespective of possession of the parties over the suit land. Since the question of validity of the sale deed executed in favour of Defendant No.1 has also been raised by the Plaintiff to seek such relief against Defendant No.1, keeping in view his contentions about paying the rent of the suit land vide the rent receipts produced by him, it would be inappropriate to opine at this stage that the Plaintiff does not satisfy the prima facie case in his favour in the pending suit to maintain the prayer for temporary injunction.

6. It is true that a prima facie alone would not entitle the Plaintiff to get the order of interim injunction, but at the same time the balance of convenience and irreparable loss are also to be in favour of the Plaintiff. In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, the Hon’ble Supreme Court have held as follows:-

“5. Therefore, the burden is on the plaintiff by evidence aliun