Judgment 1. This appeal is directed against the order dated 2.9.2005 passed by the SubJudge III, Saharsa in Title Suit No. 140/ 2004. The learned Sub-Judge by the impugned order has rejected the petition of the defendant/appellant filed under Order 39 Rule 1 & 2 and Sec. 151 C.P.C. 2. Counsel for both the parties were heard. 3. The case of the defendant/appellant is that the suit property stood recorded in the name of two brothers, Gopal Tanti and Chotkan Tanti. Both of them had half share each in the suit land. There was separation between the two brothers. Chotkan Tanti had a daughter only, namely, Palti Devi and a son Boka Tanti was born to her. The said Boka Tanti inherited the property of his maternal grandfather, namely, Chotkan Tanti. Boka Tanti in the year 1953 executed a deed of sale with respect to the suit land in favour of the defendant/appellant. His name was mutated and the rent receipts were also issued in his favour and since then he is coming in possession of the suit property. 4. The respondent/plaintiff, on the other hand, claimed the suit land on the basis of sale deed executed by one Jhabbu Tanti, S/o Gopal Tanti, the other recorded tenant in the Khatiyan having half share in the suit land. The said Jhabbu Tanti executed a sale deed in the year 1945 in the name of Sri Narayan Prasad, the vendor of Kamleshwari Prasad. The plaintiff is the son of the said Kamleshwari Prasad. There had been a mistake in the plot number and the said mistake was rectified by the wife of Jhabbu Tanti in the year 1949, thereby validating the sale deed for the land in question. The further case of the plaintiff/respondent is that Chotkan Tanti, the other brother of Gopal Tanti had no issue. Hence, after his death Gopal Tanti became the owner of the entire joint family property by the right of survivorship. Therefore, the case of the defendant/appellant that Boka Tanti being the grandson of Chotkan Tanti is a false story. In fact Boka Tanti had no concern with the family of Gopal Tanti and Chotkan Tanti and he had no right to execute any sale deed in respect of the suit property. 5. Therefore, the case of the defendant/appellant that Boka Tanti being the grandson of Chotkan Tanti is a false story. In fact Boka Tanti had no concern with the family of Gopal Tanti and Chotkan Tanti and he had no right to execute any sale deed in respect of the suit property. 5. From the perusal of the copy of the plaint and the written statement produced by the defendant/appellant at the time of hearing of the appeal, it appears that the plaintiff/respondent had filed the abovementioned title suit for a declaration that the suit property belongs to the plaintiff on purchase and he has all right, title and interest in the suit property and that the defendant had no concern or right, title in the said property. 6. Learned counsel for the defendant/appellant submitted that the impugned order is bad because the learned court below has not considered the prima facie case of the parties nor has given any opinion as to the balance of convenience. He has rejected the petition filed by the defendant for issuance of injunction only on the ground that the defendant would have no irreparable injury, rather the injury sustained to him in absence of grant of injunction can be compensated in terms of money. 7. Learned counsel further submitted that the appellant/defendant by virtue of a sale deed which was executed in the year 1953 has a valid title over the suit land. The point that whether Boka Tanti was not the grandson of Chotkan Tanti can be decided only in course of trial. The suit plot admittedly is recorded in the name of Gopal Tanti and Chotkan Tanti both. Therefore, Chotkan Tanti had 50% share in the suit property and Boka Tanti inherited the said property. Though there is a sale deed in favour of the vendor of the plaintiffs father also executed by the heirs of Gopal Tanti but only on the basis of this it cannot be said that Boka Tanti had no right to execute the sale deed in favour of the plaintiff. Thus there is a prima facie case in favour of the defendant/appellant. So far balance of convenience is concerned, learned counsel submitted that a number of documents have been filed vide list of documents before lower court concerned, but it did not consider a single document showing the possession of the appellant/ defendant. Thus there is a prima facie case in favour of the defendant/appellant. So far balance of convenience is concerned, learned counsel submitted that a number of documents have been filed vide list of documents before lower court concerned, but it did not consider a single document showing the possession of the appellant/ defendant. He referred to the copy of the list of document filed on behalf of the defendant in the trial court is Annexure 1 to the Memo of Appeal and submitted that from the perusal of this annexure, it would appear that the defendant had filed rent receipts issued by the Government of Bihar for the year 1954-55 upto the year 2004-05, the order of mutation by the Notified Area Committee, Saharsa, municipal tax receipts for the years 1963-64 and 1985-86, the municipal survey final Khatiyan in the name of Ganpati Jha (appellant) bearing new Khata No. 399, Khesra No. 635 (Ka to Jha), but none of these documents have been mentioned in the impugned order. 8. Learned counsel further referred to the fact that the plaintiff during the pendency of this case made several transfers of the portions of the suit land and the new purchasers came and dispossessed the defendant/appellant. The defendant approached the police for help. He also filed writ petition in this Court. Since the possession was restored by the order of the Superintendent of Police, he subsequently withdrew the writ petition. Therefore, all these goes to show that it is the defendant/appellant who is in possession of the property. Therefore, balance of convenience also lies in his favour. Regarding irreparable loss, learned counsel for the appellant submitted that the appellant/defendant is having a property since 1953 and it is in his continued possession. He has also exercised his right, title by executing some sale deeds prior to filing of this case, so if the plaintiff is not restrained by issuance of an injunction, the defendant/appellant would definitely be put to irreparable loss. Therefore, all the ingredients for grant of issuance of injunction are in favour of the appellant but the lower court ignoring the same has rejected his petition. 9. Therefore, all the ingredients for grant of issuance of injunction are in favour of the appellant but the lower court ignoring the same has rejected his petition. 9. Counsel for the respondent/plaintiff opposed the submissions and submitted that Jhhabu Tanti sold the disputed property to one Sheo Narain Tanti and the said Sheo Narain Tanti sold the property to Kamleshwari Prasad and the plaintiff is the son of the said Kamleshwari Prasad. Kamleshwari Prasad was a politician and was an Ex-M.LA. and for his political activities he used to remain out of station where the disputed property is situated and the defendant was appointed by him to take care of his properties. But the defendant manufacturing the above documents created false evidence in support of his title and possession. In fact the property belongs to and is also in possession of the plaintiff and therefore, the defendant had no prima facie case nor balance of convenience lies in their favour nor irreparable loss would be caused to them. He also pointed out that an order of Superintendent of Police could not affect the title and possession of the plaintiff. 10. After hearing the submissions made on behalf of both the parties and considering their respective cases as I stated earlier that both the parties are claiming the suit land on the basis of sale deeds executed by different heirs of the recorded tenants, therefore, there is a prima facie case in favour of the defendant/appellant in view of series of documents which were produced before the lower court and in view of the fact that nothing has been shown on behalf of the plaintiff/respondent to show any document with respect to their having possession over the suit land, I find that the balance of convenience also lies in favour of the defendant/appellant. Further in absence of issuance of any injunction order and thereby allowing the plaintiff to sell the suit property would definitely cause irreparable loss to the defendant/appellant who is having title deed in his favour since the year 1953 and showing his continuous possession over the suit property. 11. In view of the above discussions, this appeal is allowed. The impugned order is set aside and the plaintiff/respondent is restrained from making any further transfer of any portion of the suit property. 12. The above order was passed in presence of the counsel for both the parties. 11. In view of the above discussions, this appeal is allowed. The impugned order is set aside and the plaintiff/respondent is restrained from making any further transfer of any portion of the suit property. 12. The above order was passed in presence of the counsel for both the parties. The copy of the plaint and the written statement produced in course of hearing of the case was returned to the counsel for the appellant. It is, however, observed that no part of this order shall have any bearing on the merit of the suit.