JUDGMENT : Raghubir Dash, J. 1. This appeal is against the Order Dated 8.8.2011 passed by the Learned Civil Judge (Senior Division), Balasore in I.A. 505/2011 arising out of C.S. 590/2011 dismissing a petition under Order 39 rule 1 & 2 read with Section 151 of the C.P.C. The Appellant is the Plaintiff-Petitioner before the Learned Court below. Respondent Nos. 3, 4 & 5 are O.P. Nos. 1 to 3, respectively in the I A. Names of Respondent Nos. 1 & 2 have been deleted since they were not arrayed as party in the said I.A. They are Defendant Nos. 1 & 2 in the Civil Suit. 2. Plaintiff-Appellant's case, in short, is that the properties which are subject matter of the Suit are the joint family property of the Plaintiff & his co-sharers over which Respondent Nos. 3 to 5 being outsiders have no manner of right, title & interest. Out of the said joint family properties the Respondents have obtained illegal & invalid deeds in respect of the property shown in Schedule 'A' of the appeal memo & on the strength of such deeds they are making disturbance in the peaceful possession of the Appellant. Hence, the petition for temporary injunction. 3. It is not in dispute that father of the Appellant namely, late Markanda Mohapatra, had purchased Ac.0.51 decimals of land appertaining to C.S. Plot No. 215 & Ac.0.09 decimals appertaining to C.S. Plot No. 214 in mouza Padhuanpada under registered sale deed Nos. 110 & 1951 & 1 of 1967. Markanda had three sons. Appellant asserts that ignoring him, Markanda executed R.S.D. No. 5169 dated 11.11.1982 in favour of his second son Sushil Kumar Mohapatra for Ac.0.07 1/2 out of C.S. Plot No. 214 & another sale deed bearing No. 5170 dated 11.11.1982 in favour of his third son Dilip Kumar Mohapatra for an area of Ac.0.030 out of C.S. Plot No. 215. Markanda had also executed a Gift Deed bearing No. 713/77 in favour of his son Dilip for an area of Ac.0.20 out of C.S. Plot No. 214 & 215. It is alleged by the Appellant that there was no due execution of he deeds & those deeds were executed behind his back & were never acted upon. Since possession of the land, purportedly transferred under those deeds, was never delivered, the property remained under joint possession of all the three sons of Markanda. It is alleged by the Appellant that there was no due execution of he deeds & those deeds were executed behind his back & were never acted upon. Since possession of the land, purportedly transferred under those deeds, was never delivered, the property remained under joint possession of all the three sons of Markanda. During the major settlement operation Sushil & Dilip had never claimed for correction of RO.R on the basis of those deeds for which in the M.S. RO.R., finally published in 1987, the property has been recorded jointly in the names of all the three sons of Markanda. While the matter stood thus, Sushil & Dilip initiated Mutation Case No. 2504/2010 & 5507/2009 before the Tahasildar, Balasore to mutate the land shown to have been transferred to them under the aforestated deeds The Tahasildar having no jurisdiction to correct the M.S. RO.R. illegally allowed both the mutation cases & issued separate corrected R.O. Rs. in the names of Sushil & Dilip. During pendency of the mutation proceedings, Sushil filed a partition suit (C.S. No. 241/2011) in the Court of the Learned Civil Judge (Senior Division), Balasore claiming 1/6th share in the properties of late Markanda which includes the property which was transferred to him by Markanda under the registered sale deed dated 11.11.1982. Further case of the Appellant-Plaintiff is that Sunil & Dilip each has executed a power of attorney in favour of Kishore Nayak, the present Respondent No. 3, who. on the strength of such power has executed two registered sale deeds on 29.3.2011 in favour of his two minor sons, i.e., Respondent Nos. 4 & 5. In addition to that Sushil has executed registered sale deed No. 2729 dated 29.3.2011 in favour of present Respondent No. 3. All these sale deeds in favour of the present Respondents are in respect of portions of the plots mentioned in Schedule 'A' of the appeal memo. It is alleged that after obtaining the sale deeds Respondent Nos. 3 to 5 are creating disturbance over the Schedule 'A' land. The Appellant-Plaintiff has filed the suit to declare the registered sale deeds & the Gift Deed executed by his father Markanda in favour of Sushil & Dilip & subsequent sale deeds executed in favour of Respondent Nos. It is alleged that after obtaining the sale deeds Respondent Nos. 3 to 5 are creating disturbance over the Schedule 'A' land. The Appellant-Plaintiff has filed the suit to declare the registered sale deeds & the Gift Deed executed by his father Markanda in favour of Sushil & Dilip & subsequent sale deeds executed in favour of Respondent Nos. 3 to 5 by Sushil & Dilip as void & for a declaration that the correction of R.O.R. made under the order of the Tahasildar is wrong & illegal, besides praying for permanent injunction against the Respondents. 4. The Respondents have taken the stand that the deeds executed by Markanda in favour of Sushil & Dilip were never behind the back of the Appellant. The execution of deeds was followed by delivery of possession. Markanda did not ignore the Plaintiff- Appellant as he had executed registered Gift Deed dated 22.5.1979 in favour of the Appellant in respect of Ac.0.04 decimals & also alienated to him Ac.0.13.5 decimals of land under a registered sale deed dated 11.11.1982 from out of his purchased land. Those transactions were also followed by delivery of possession. While Sushil was possessing his purchased Ac.0.07 decimal, he sold the same to Respondent No. 3 under registered sale deed dated 29.3.2011 for a consideration of Rs. 6,77,600 & delivered possession to Respondent No. 3. On the same date he executed another sale deed alienating Ac.0.016 of land out of his 1/6th share in case Plot No. 357/1215 under Khata No. 242 to Respondent Nos. 4 & 5 through their mother guardian for a consideration of Rs. 1,54,808. On the same date Dilip also sold Ac.0.014 decimals of land out of the land which was sold to him by his father (part of Case Plot No. 357/1215/4320) & Ac.0.016 of land out of his 1/6th share in Case Plot. No. 357/1215 under Khata No. 242 to R. 4 & 5 through their mother guardian for a consideration of Rs. 2,51,680. Getting delivery of possession, R. 3 to 5 have been in possession thereof. In respect of their purchased land they have mutated the R.O.R. in their names & are paying rent for the land. Since they are true owners in possession over the properties they have purchased, they should not be injuncted from enjoying their property. 5. 2,51,680. Getting delivery of possession, R. 3 to 5 have been in possession thereof. In respect of their purchased land they have mutated the R.O.R. in their names & are paying rent for the land. Since they are true owners in possession over the properties they have purchased, they should not be injuncted from enjoying their property. 5. Learned Trial Court has observed that portions of the land out of the land purchased by Markanda Mohapatra have already been sold from time to time for which there is no semblance of jointness of the property in question. That apart, the suit land has already been mutated in the names of R. 3 to 5 & they are in possession of their purchased land. The Plaintiff-Appellant's allegations that the alienations shown to have been made by his father were not acted upon & that delivery of possession in respect of the lands shown to have been alienated was never made & that there was no payment of consideration in respect of those transactions are all subject matters to be decided in the original suit. With these observations the Learned Trial Court refused to grant interim injunction. 6. The impugned order is challenged by the Appellants on the grounds that the findings recorded by the Learned Trial Court are against the materials available on record & there has been no proper application of judicial mind to such materials, that the property being joint family property, R. 3 to 5, who are stranger purchasers, cannot be permitted to possess the property without there being a partition by metes & bounds amongst the co-sharers, that the correction of R.O.R. by the Tahasildar in mutation proceedings being illegal, the Learned Trial Court should not have observed that mutation of R.O.R. & payment of rent establish separate possession by R. 3 to 5 &, that one of the coparceners having filed another suit for partition claiming 1/6th share in the case land which is still pending, it cannot be claimed that the land sold to R. 3 to 5 was under exclusive possession of their respective vendors. 7. 7. Learned Counsel for the Respondents submits that the vendors of R. 3 to 5 have sold lands not only to R. 3 to 5 but also the Appellant & therefore, the Appellant cannot challenge the sale deed in favour of R3 to 5 while he himself has been a beneficiary of alienation made in his favour. It is also contended that R. 3 to 5 being in possession of their purchased land, any interim order of injunction against them will deprive them from enjoyment of the property causing irreparable injury to them. It is also contended that the Appellant has no prima facie case in his favour. 8. The M.S. R.O.R. finally published in 1987 reflects that the case plots were jointly recorded in the names of Markanda Mohapatra & his three sons. The alienations under different deeds said to be have executed by late Markanda were prior to the final publication of M.S. RO.R The mutation proceedings initiated before the Tahasildar after final publication of the M.S. R.O.R. & the Tahasildar directing correction of the RO.R on the basis of the alienations made by Markanda is not permissible in law as argued by the Learned Counsel for the Appellant. In support of such contention, he has relied on the decision in S.K. Abdul Fakir V. Charulata Kapandia, reported in 97 (2004) CLT 400 & Harihar Mohapatra V. Commissioner of Land Records & Settlement, Orissa, reported in 1998 (II) OLR 495. In view of these reported decisions, the submission made by the Learned Counsel for the Appellant in this regard is quite tenable. 9. Now, it is to be considered as to whether the Appellant has got a prima facie case. It is claimed that the subject matter of the I.A. is a part of the joint family property of the Appellant & his co-sharers. Admittedly, Markanda Mohapatra had purchased land appertaining to C.S. Plot Nos. 214 & 215 in the year 1951 & 1967. It is not in dispute that Markanda during his life time executed sale/gift deeds in favour of his sons, including the Appellant himself. The Appellant claims that the alienation made by his father in favour of his brothers Dilip & Sushil were made behind his back & those were never acted upon in as much as possession was never delivered to the alienees. The Appellant claims that the alienation made by his father in favour of his brothers Dilip & Sushil were made behind his back & those were never acted upon in as much as possession was never delivered to the alienees. It is argued that since the property remained under joint possession the M.S. R.O.R. was recorded jointly in the names of the father & sons. But merely on the basis of the joint recording in the R.O.R., there cannot be a prima facie conclusion that the alienations made by Markanda were not acted upon. The Learned Trial Court has rightly observed that Appellant's plea on those alienations would be examined at the time of hearing in the Suit. The property which was purchased by Markanda in 1951 & 1967 is not claimed to have been acquired out of the joint family nucleus or that it was thrown to the joint family hotpot. So, there is a presumption that the property acquired by Markanda was his self acquired property & during his life time he has alienated Ac.0.23 to his son Dilip under one Gift deed dated 18.2.1377 & one sale deed dated 11.11.1982; Ac.0.07 1/2 of land to Sushil under a sale deed dated 11.11.1982 & Ac.0.17.5 of land to the Plaintiff under a Gift deed dated 22.5.1979 & a sale deed dated 11.11.1982. Thus, he has alienated Ac.0.48 of land to his sons under different deeds. 10. It is found that on the same date, i.e., 11.11.1982, Markanda executed one sale deed in favour of each of three sons including the Appellant. Therefore, Appellant's plea that Markanda alienated land to Dilip & Sushil behind his back is not acceptable at this stage. It is not claimed that under the different deeds executed by Markanda specified portions from the land appertaining to C.S. Plot Nos. 214 & 215 were not alienated. It is not also claimed that the land purchased by Markanda was being used as a dwelling house of the undivided family of Markanda. Therefore, the presumption of joint possession in respect of the land that Markanda has alienated during his life time cannot be entertained at this stage. However, the rest part of Markanda's purchased land, in respect of which he has made no alienation & died intestate, can be said to be still in jointness. Therefore, the presumption of joint possession in respect of the land that Markanda has alienated during his life time cannot be entertained at this stage. However, the rest part of Markanda's purchased land, in respect of which he has made no alienation & died intestate, can be said to be still in jointness. Therefore, without there being a partition by meets & bounds amongst the co-sharers, no one of them can claim that he or she holds a particular portion of the land out of the unsold portion of Markanda's purchased land. 11. Now let it be examined if R. 3 to 5 can be restrained from entering into any portion of the suit plots. The land sold to R. 3 by Sushil under sale deed dated 29.03.2011 is the land which Markanda had alienated under a sale deed in favour of Sushil. Similarly, out of the land sold by Dilip to R. 4 to 5 under sale deed dated 29.03.2011, Lot No. 1 of that sale deed measuring Ac.0.010 is the land which was alienated to Dilip by his father. In respect of the afore stated pieces of land alienated by Sushil & Dilip, R. 3 to 5 cannot be restrained because presumption of jauntiness in respect of the portions of land alienated by Markanda from C.S. Plot Nos. 214 & 215 cannot be entertained at this stage. But the rest part of the land purchased by R. 4 to 5 through their mother guardian, i.e., the land sold by Sushil under sale deed dated 29.03.2011 & the land shown in Lot No. 2 of the sale deed executed by Dilip on 29.03.2011, the Appellant has got a prima facie case because Sushil & Dilip each has 1/6th share from the portion of C.S. Plot Nos. 214 & 215 which remained unsold till the death of Markanda because in respect of the unsold portion of land there is presumption of jointness. R. 2 & 3 being strangers to the family cannot claim possession over any part of plot Nos. 214 & 215 which is in jointness till the same is partitioned by metes & bounds. 12. 214 & 215 which remained unsold till the death of Markanda because in respect of the unsold portion of land there is presumption of jointness. R. 2 & 3 being strangers to the family cannot claim possession over any part of plot Nos. 214 & 215 which is in jointness till the same is partitioned by metes & bounds. 12. It is claimed that one of the three sons of Markanda has filed a suit for partition (C.S. No. 241 of 2011) claiming 1/6th share in the joint family property including the properties involved in the suit out of which this appeal arises & for that there should be presumption of jointness in respect of the whole of land covered by the suit plots. It is not disputed that such suit has been filed but when the pleadings of that suit are not available for perusal & in the face of the materials available on record, a presumption of jointness in respect of the portions of land Markanda alienated during his life time cannot be entertained. In view of the discussion made above, the appeal is allowed in part. The impugned order dismissing the I.A. is set aside. R. 3 to 5 are restrained from entering into the land shown in Lot No. 2 of Registered Sale Deed No. 2713 dated 29.03.2011 executed by Dilip & land sold by Sushil Kumar Mohapatra under Registered Sale Deed No. 2714 dated 29.03.2011 till disposal of the suit. The prayer for interim injunction in respect of the rest of the land purchased by R. 3 to 5 under Registered Sale Deed Nos. 2729 & 2713 dated 29.03.2011 stands dismissed. There shall be no order as to cost.