Order on Board

1. This petition under Article 227 of the Constitution of India has been filed by the petitioners against the impugned order dated 11.07.2025 passed by 4th Additional District Judge, Raigarh, in Misc. Civil Appeal No.8/2025, whereby the Appeal filed by plaintiff No.1&2 is allowed and temporary injunction is granted in their favour till final adjudication of the civil suit.

2. Facts of the case are that, the petitioners are defendant No.1&2 before the trial court. The respondent No.1 filed a Civil Suit before 3rd Civil Judge (Junior Division), Raigarh vide Civil Suit No.75-A/2024 for partition of suit property and for permanent injunction. In the civil suit, the plaintiff filed an application under Order 39 Rule 1&2 for grant of temporary injunction. It was pleaded in the plaint that the parties are legal heirs of common ancestor, however, dispute exists between the parties with respect to their respective share of the property for which the plaintiff filed a civil suit for partition of suit property. In the application under Order 39 Rule 1&2, the plaintiff has averred that after death of their ancestor Ishwar Dewangan, the names of parties were mutated in the revenue records and they are in possession of their respective share of the property as per their convenience, however, no formal partition were effected between the parties. On a particular part of the share of the property of the plaintiff admeasuring 61X4=244 sqf.ft., the defendants are raising construction for which he filed a suit for partition and permanent injunction and also filed an application for grant of temporary injunction against the defendants.

3. After hearing the parties, the application filed by the plaintiff was rejected by the trial court vide order dated 23.05.2025 holding that plaintiff does not have any prima facie case, balance of convenience and irreparable loss as the parties are having 1/3rd share of total property and the fact of their mutual partition have been denied by the opposite party. Therefore, no injunction can be granted in favour of the plaintiff. The said order dated 23.05.2025 was challenged by the plaintiff by filing Misc. Appeal under Order 43 Rule 1 CPC before the 4th Additional District Judge, Raigarh, in Misc. Civil Appeal No.8/2025 which came up for hearing on 11.07.2025 and after hearing the parties the appellate court allowed the appeal filed by the plaintiff and granted temporary injunction in his favour restraining the defendants from raising constructions over the suit property till final adjudication of the case. The said order dated 11.07.2025 is under challenge in the present writ petition by defendants No.1&2.

4. Learned counsel appearing for the petitioners would submit that restraining the defendants from raising construction would cause prejudice to their defence as they are required to construct a shed over the passage admeasuring 4X61=244 ft. The subject part of the property is a passage through which the defendants used to access their house and in the rainy season the condition of said passage becomes very pathetic and it is very difficult for them to access to their house through said passage. Therefore, they are raising construction and making only a shed over that portion so that there may not be any further damages of their house in rainy season or otherwise. No loss or any harm would be caused to the plaintiff even if the defendants complete the installation of Shed over that passage. On their rightful ownership of the property, the defendants are raising construction of shed. By the order impugned, the construction would become incomplete and cause more hardship to the defendants if it would continue till final adjudication of the case. Therefore, they have challenged the impugned order dated 11.07.2025 and the same is liable to be set aside.

5. I have heard the counsel for the petitioners and perused the material annexed with the petition.

6.