KAIBALYA KUMAR MISHRA vs SANKAR MISHRA

CMP/1482/2025
ODHC010630952025
2026:OHC:276
IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.1482 of 2025


CNR No. ODHC010630952025

(In the matter of an application under Article 227 of the Constitution
of India, 1950).



Kaibalya Mishra and Ors. …. Petitioner (s)
-versus-

Sankar Mishra and Ors. …. Opposite Party (s)




Advocates appeared in the case through Hybrid Mode :

For Petitioner (s) : Mr. Sourav Suman Bhuyan, Adv.

For Opposite Party (s) : Mr. Soumya Mishra, Adv.




CORAM:
HON’BLE DR. JUSTICE SANJEEB K PANIGRAHI


DATE OF HEARING:-11.08.2026
DATE OF JUDGMENT:-30.10.2026


Dr. Sanjeeb K Panigrahi, J.
1. The dispute concerns Schedule-B property situated in Mouza
Gadaitapokhari, District Puri, traced to Sabik Plot No. 806 under Sabik
Khata No. 381, measuring Ac.0.07. The property subsequently
corresponded to L.R. Plot No. 655 under L.R. Khata No. 510 and
Consolidation Plot No. 896 under Khata No. 16, Chaka No. 177,
measuring Ac.0.04. The schedule also refers to Plot No. 896/3898 under
Mutation Khata No. 938/407, measuring Ac.0.0333 out of Ac.0.04. The
controversy relates to the parties’ competing claims over this land and
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Reason: Authentication
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the construction undertaken by Kaibalya Kumar Mishra, the present
petitioner No.1.
I. F ACTUAL M ATRIX OF THE C ASE :
2. The brief facts of the case are as follows:

(i) The pleadings trace the property through a registered sale deed
dated 10.01.1931 executed in favour of Laxman Mishra. He also
purchased Ac.0.41 pertaining to Sabik Plot No. 803 by a registered
sale deed dated 11.03.1942. The plaintiffs trace their claim
through a subsequent conveyance of the aggregate Ac.0.48 in
favour of Moti Devi, wife of Ratnakar Mishra, identified in the
plaint as registered sale deed No. 789 dated 20.02.1953. Moti Devi
and Ratnakar Mishra died leaving their sons, Duryodhan Mishra
and Sankar Mishra. Opposite party Nos. 1 to 5 claim through this
branch of the family and are the plaintiffs in the civil suit.
(ii) During consolidation operations, proceedings were undertaken
concerning the area and recording of the property. In the final
consolidation records published in 1989, Plot No. 899, measuring
Ac.0.40, stood recorded in the names of Duryodhan Mishra and
Sankar Mishra, whereas Plot No. 896, measuring Ac.0.04, stood
recorded in the name of Madhusudan Mishra. Duryodhan
Mishra and Sankar Mishra instituted Consolidation Revision
Case No. 1421 of 1990. That revision was dismissed on 13.08.2001
on the ground that an appeal had not been preferred against the
order passed in the consolidation objection proceeding. The
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recording of Plot No. 896 and its subsequent mutation form part
of the present dispute.
(iii) The suit land was mutated in favour of Gopi alias Gopinath
Mishra and Nishamani Mishra through Mutation Case No. 448 of
1998 under Mutation Khata No. 938/58. Their successors
subsequently executed registered sale deed dated 19.04.2024 in
favour of petitioner No. 1, who obtained mutation under Khata
No. 938/407. In 2024, Sankar Mishra and the legal heirs of
Duryodhan Mishra also instituted Consolidation Revision Case
No. 79 of 2024 concerning the suit land and other property.
During the pendency of that proceeding, a dispute arose over
construction on the land. Opposite party Nos. 1 to 5 consequently
instituted C.S. No. 37 of 2025 before the Civil Judge, Junior
Division, Nimapara, seeking permanent injunction, together with
I.A. No. 18 of 2025 seeking temporary restraint against
construction.

(iv) By order dated 23.04.2025, the trial court directed maintenance of
status quo but permitted defendant No. 1 to complete the existing
construction to roof level, subject to restrictions and an
undertaking against claiming equity. The plaintiffs initially
challenged that order in CMP No. 741 of 2025, which was
disposed of on 15.07.2025 with liberty to pursue the appellate
remedy. They thereafter preferred FAO No. 26 of 2025. By
judgment dated 22.08.2025, the Additional District Judge,
Nimapara, set aside the trial court’s order and restrained
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construction changing the nature and character of Schedule-B
property till disposal of the suit. The defendants have challenged
that appellate judgment in the present CMP under Article 227 of
the Constitution.
Being aggrieved by the aforesaid facts and circumstances, the Petitioner
has been constrained to approach this Court by way of the present
petition.
UBMISSIONS N EHALF F HE ETITIONER
II. S O B O T P :
3. The learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:

(i) The petitioners contend that the appellate court improperly
interfered with a reasoned exercise of discretion by the trial court.
According to them, the trial court considered the prima facie case,
balance of convenience and irreparable injury before permitting
only limited completion of the existing structure. Although it
found a prima facie case in favour of the plaintiffs, it assessed
comparative hardship in favour of allowing the existing
construction to be completed. The petitioners submit that the
appellate court substituted its own assessment without
establishing perversity, arbitrariness or disregard of settled
principles in the trial court’s approach. They rely upon Skyline
1
Education Institute v. S.L. Vaswani in support of this
contention.

1
(2010) 2 SCC 142
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(ii) The petitioners assert that petitioner No. 1 purchased the
property for valuable consideration under the registered sale
deed dated 19.04.2024, obtained possession and secured mutation
in his favour. They contend that the conveyance has not been
challenged in any proceeding seeking its cancellation or setting
aside. According to them, the sale deed and existing records
support petitioner No. 1’s entitlement to possess and use the
property. They further submit that the earlier consolidation
revision was dismissed in 2001 and that the subsequent revision
of 2024, stated in their written submissions to be yet to be
admitted, could not by its mere institution negate their title or
justify preventing use of the land.

(iii) The petitioners submit that the residential house had already
been substantially constructed up to lintel level and that
photographs showing its condition were produced before the
trial court. They contend that preventing roof casting would leave
the structure incomplete and cause greater inconvenience and
financial loss than the limited completion permitted by the trial
court would cause to the plaintiffs. They emphasise that the
permission did not extend to fresh construction or additional
structures. Relying upon decisions including Graftek Pvt. Ltd. v.
2
Shri Lord Lingaraj Mahaprabhu , they submit that the existing
stage of construction and the consequences of leaving it

2
AIR 1999 Ori 49
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unfinished should receive due weight when assessing
comparative hardship.
(iv) The petitioners also rely upon their undertaking to remain bound
by the final adjudication, refrain from claiming equity and
remove the construction at their own expense if required. They
state that this safeguard was offered before the courts below and
reiterated before the High Court. According to them, the
undertaking protects the opposite parties against the
consequences of an adverse determination of the petitioners’
rights, while allowing completion of the existing building. They
contend that the appellate court failed to adequately consider this
undertaking and the limited nature of the permission granted by
the trial court.

(v) The petitioners further contend that the suit seeks permanent
injunction simpliciter and that an unconditional restraint at the
interlocutory stage substantially grants the plaintiffs their final
relief before adjudication. They maintain their objection under
Section 51 of the consolidation enactment and question the civil
court’s ability to disregard the consolidation records. They also
invoke the 2023 amendment omitting Chapter V and introducing
Section 36-A, contending that their registered conveyance could
not be disregarded without adjudication of its validity. On these
grounds, they seek setting aside of the appellate judgment and
restoration of the trial court’s arrangement.

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UBMISSIONS N EHALF F HE OPPOSITE PARTIES
III. S O B O T :

4. Per contra , the learned counsel for the Opposite Parties earnestly made
the submission that the present CMP deserves to be rejected in limine.
(i) Opposite party Nos. 1 to 5 contend that their predecessor, Moti
Devi, purchased the suit property from Laxman Mishra under the
registered conveyance dated 20.02.1953. According to them, after
that transfer, Laxman Mishra retained no interest in the property
capable of passing to his successors. They therefore submit that
the persons who subsequently conveyed the land to petitioner
No. 1 possessed no transferable title. Invoking the principle that
a person cannot convey a better title than he possesses, they
contend that the sale deed dated 19.04.2024 does not confer lawful
ownership upon petitioner No. 1 or justify construction over the
disputed property.
(ii) The opposite parties submit that the consolidation recording and
subsequent mutation relied upon by the petitioners are erroneous
and cannot independently create title. They point to
Consolidation Revision Case No. 79 of 2024, instituted for
correction of the records, and contend that the dispute concerning
the land remains pending before the competent authority.
According to them, the civil suit was necessary because the
consolidation authorities cannot grant the injunction required to
prevent alteration of the property. They submit that the land must
be preserved while their claim is adjudicated, rather than
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allowing the disputed entries and later conveyance to become the
basis for further construction.
(iii) The opposite parties contend that the trial court’s permission to
complete construction defeated its simultaneous direction to
maintain status quo. They emphasise that the trial court itself
found a prima facie case in their favour and considered
preservation of the property necessary. Since the principal relief
in the suit is prevention of construction changing the nature and
character of the land, they submit that permitting completion
during the suit would frustrate that relief before adjudication.
3
They rely upon Deoraj v. State of Maharashtra to support their
contention that withholding interim protection can, in
appropriate circumstances, render the ultimate remedy
ineffective.
(iv) On comparative hardship, the opposite parties contend that both
courts below recognised a prima facie case in their favour and
that construction would materially prejudice their enjoyment of
the land if they ultimately succeed. They submit that further
building activity would change the property and necessitate
additional proceedings for effective relief. They dispute that
expenditure upon construction, by itself, establishes irreparable
injury to the petitioners and point out that petitioner No. 1 did
not plead in his objection that he was residing upon the suit
property. According to them, postponing further construction

3
(2004) 4 SCC 697
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causes less prejudice than permitting alteration of the disputed
land.
(v) The opposite parties further submit that an undertaking to
demolish or refrain from claiming equity does not adequately
replace preservation of the property. They contend that such
conditions would leave them exposed to further disputes if their
claim succeeds. Relying upon Maharwal Khewaji Trust v.
4
Baldev Dass , they submit that alteration of disputed property
should not be permitted without an established case of
irreparable loss warranting that course. They accordingly
support the appellate judgment as an order preserving the subject
matter of the suit and seek dismissal of the CMP.
NALYSIS OF THE INDINGS OF THE RIAL OURT
IV. A F T C :

5. The Learned Trial Court made the following observation:
(i) While deciding I.A. No. 18 of 2025 on 23.04.2025, the trial court
identified the requirements of a prima facie case, balance of
convenience and irreparable injury as the considerations
governing temporary injunction. Referring to Dalpat Kumar v.
5
Prahlad Singh , it stated that the court must examine whether a
serious disputed question requires adjudication, whether
protection is necessary against injury before determination of the
legal right, and whether the comparative hardship from
withholding injunction exceeds that likely to result from granting

4
(2004) 8 SCC 488
5
AIR 1993 SC 276
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it. The court considered the application under separate
discussions concerning the prima facie case and comparative
hardship.
(ii) In its discussion of the prima facie case, the trial court referred to
the plaintiffs’ asserted chain of acquisition, the conveyance in
favour of Moti Devi, the consolidation objection proceedings, the
records published in 1989 and the subsequent revisions. It
recorded the plaintiffs’ complaint that the disputed land had been
wrongly entered in the name of Madhusudan Mishra and
subsequently mutated in favour of the defendants’ predecessors.
The court observed that mutation does not confer or relinquish
title and concluded, upon the documents before it, that the
plaintiffs had established a prima facie case.

(iii) While considering balance of convenience and irreparable injury,
the trial court observed that Plot No. 899 was undisputed,
whereas Plot No. 896 was disputed. It stated that the order of the
consolidation authority continued to hold good unless set aside
by the Commissioner. It also noted that the property stood
recorded in the name of defendant No. 1 under Mutation Khata
No. 938/407. Referring to the photographs submitted by him, the
court observed that the house had been constructed up to lintel
level and that a restraint against construction would cause him
greater loss than the plaintiffs would suffer if the limited work
were permitted.
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(iv) The trial court referred to decisions concerning the continued
effect of consolidation records, completion of partially
constructed houses and undertakings against claiming equity. It
noted the proposition that a half-constructed house benefits
neither party and referred to authority requiring the person
undertaking construction to furnish an undertaking. The court
stated that the dispute between the parties would be resolved
through evidence and arguments. It also referred to Dorab
6
Cawasji v. Coomi Sarah while discussing an interim
arrangement balancing the injury and prejudice likely to be
suffered by the respective parties and preserving the subject
matter pending final determination.

(v) The trial court allowed the interlocutory application on contest
without costs and directed both parties to maintain status quo
over the suit property till disposal of the suit. It nevertheless
permitted defendant No. 1 to carry the existing construction to
roof level and undertake other necessary work therein. The
permission expressly excluded fresh construction or any
structure beyond the one stated to have already been
commenced. The court directed defendant No. 1 to furnish an
undertaking that he would not claim equity if the final
adjudication of the suit went against him.



6
(1990) 2 SCC 117
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OURT S EASONING AND NALYSIS
V. C ’ R A :
6. Heard Learned Counsel for the parties and perused the documents placed
before this Court.

7. The controversy before this Court lies in a narrow compass. The
question is not whether the plaintiffs or the defendants have ultimately
established title over Schedule-B property. Nor is this Court required,
in exercise of jurisdiction under Article 227 of the Constitution, to
undertake a fresh evaluation of the rival chains of title. The challenge is
to the judgment of the learned Additional District Judge, Nimapara in
FAO No.26 of 2025, whereby the appellate court interfered with the
arrangement made by the learned trial court and restrained further
construction changing the nature and character of Schedule-B property

during pendency of the suit.

8. The limits of jurisdiction under Article 227 are well settled. In Garment
7
Craft v. Prakash Chand Goel , the Supreme Court held that the High
Court, while exercising supervisory jurisdiction, does not act as a court
of first appeal and cannot reappreciate or reweigh the evidence merely
for substituting its own conclusion. Interference is warranted where the
subordinate court has acted outside the bounds of its authority,
disregarded fundamental principles of law, or arrived at a finding so
perverse that it cannot reasonably be sustained. The Court held as
follows:
“ Having heard the counsel for the parties, we are clearly of
the view that the impugned order is contrary to law and
cannot be sustained for several reasons, but primarily for

7
(2022) 4 SCC 481
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deviation from the limited jurisdiction exercised by the High
Court under Article 227 of the Constitution of India. The
High Court exercising supervisory jurisdiction does not act
as a court of first appeal to reappreciate, reweigh the evidence
or facts upon which the determination under challenge is
based. Supervisory jurisdiction is not to correct every error of
fact or even a legal flaw when the final finding is justified or
can be supported. The High Court is not to substitute its own
decision on facts and conclusion, for that of the inferior court
or tribunal. The jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty
or flagrant abuse, Celina Coelho Pereira (Ms) and Others v.
Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC
violation of fundamental principles of law or justice. The
power under Article 227 is exercised sparingly in appropriate
cases, like when there is no evidence at all to justify, or the
finding is so perverse that no reasonable person can possibly
come to such a conclusion that the court or tribunal has come
relief must be exercised
to. It is axiomatic that such discretionary
to ensure there is no miscarriage of justice . ”
9.
There is a further limitation arising from the nature of the order under
challenge. An appellate court considering an order of temporary
injunction does not substitute its discretion merely because another
view is possible. In Skyline Education Institute (India) (P) Ltd. (supra),
8
following Wander Ltd. v. Antox India (P) Ltd . , the Supreme Court held
that appellate interference is justified where the discretion of the court
of first instance has been exercised arbitrarily, capriciously or
perversely, or where settled principles governing interlocutory
injunction have been ignored. Where the view of the trial court is
reasonably possible and rests upon objective consideration and cogent

8
1990 Supp SCC 727
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reasons, a different view of the appellate court would not by itself
justify interference:
“ In such appeals, the appellate court will not interfere with
the exercise of discretion of the court of first instance and
substitute its own discretion except where the discretion has
been shown to have been exercised arbitrarily, or capriciously
or perversely or where the court had ignored the settled
principles of law regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of discretion is said
to be an appeal on principle. Appellate court will not reassess
the material and seek to reach a conclusion different from the
one reached by the court below if the one reached by that court
was reasonably possible on the material. The appellate court
would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that
if it had considered the matter at the trial stage it would have
come to a contrary conclusion. If the discretion has been
exercised by the trial court reasonably and in a judicial
manner the fact that the appellate court would have taken a
different view may not justify interference with the trial
court's exercise of discretion. ”
10.
Therefore, the present CMP has to be examined at two levels. First,
whether the learned appellate court had a permissible ground in law to
interfere with the discretion exercised by the learned trial court. Second,
whether the appellate judgment itself suffers from any jurisdictional
error or manifest perversity warranting interference under Article 227.
This Court is not required to choose afresh which of the two interim
arrangements it would have preferred had it been deciding I.A. No.18
of 2025 in the first instance.

11. The learned trial court correctly noticed that grant of temporary
injunction depends upon the existence of a prima facie case, balance of
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convenience and irreparable injury. In Dalpat Kumar (Supra), the
Supreme Court explained that a prima facie case is a bona fide
substantial question requiring adjudication and is not to be equated
with proof of title. Even after such a case is shown, the court must assess
whether the threatened injury is incapable of adequate compensation
and then compare the respective hardship likely to be caused by
granting or refusing the injunction. The relevant excerpts are produced
below:
“The existence of the prima facie right and infraction of the
enjoyment of his property or the right is a condition for the
grant of temporary injunction. Prima facie case is not to be
confused with prima facie title which has to be established,
on evidence at the trial. Only prima facie case is a
substantial question raised, bona fide, which needs
investigation and a decision on merits. Satisfaction that
there is a prima facie case by itself is not sufficient to grant
injunction. The Court further has to satisfy that non-
interference by the Court would result in "irreparable
injury" to the party seeking relief and that there is no other
remedy available to the party except one to grant injunction
and he needs protection from the consequences of
apprehended injury or dispossession. Irreparable injury,
however, does not mean that there must be no physical
possibility of repairing the injury, but means only that the
injury must be a material one, namely one that cannot be
adequately compensated by way of damages. The third
condition also is that "the balance of convenience" must be
in favour of granting injunction. The Court while granting
or refusing to grant injunction should exercise sound
judicial discretion to find the amount of substantial mischief
or injury which is likely to be caused to the parties, if the
injunction is refused and compare it with that it is likely to
be caused to the other side if the injunction is granted. If on
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weighing competing possibilities or probabilities of
likelihood of injury and if the Court considers that pending
the suit, the subject-matter should be maintained in status
quo, an injunction would be issued. Thus the Court has to
exercise its sound judicial discretion in granting or refusing
the relief of ad interim injunction pending the suit.”

12. In the present case, the learned trial court, upon consideration of the documents
then available, expressly found a prima facie case in favour of the plaintiffs. It
also recognised that Plot No.896 is the property in dispute. That finding was
only interlocutory and cannot be understood as a finding of title. Nevertheless,
once the court found a serious dispute concerning the very land upon which
construction was being undertaken, the question whether its physical condition
ought to be allowed to change required consideration in accordance with the
law governing disputed immovable property.
13. On this aspect, Maharwal Khewaji Trust (Regd.) (supra), has direct relevance.
There also the appellate court had permitted construction during pendency of
the suit on the condition that the construction would be removed at the
defendant's own risk and cost if the plaintiff ultimately succeeded. An
undertaking not to claim compensation was also given before the High Court.
The Supreme Court nevertheless restored the order of the trial court restraining
alteration of the property. The Court held that, unless a case of irreparable loss
or damage is made out, the court ought not to permit the nature of the disputed
property to be changed, since such change may prejudice the party ultimately
succeeding and may lead to multiplicity of proceedings. The relevant excerpts
are produced below :
“Be that as it may, Mr. Sachhar is right in contending that
unless and untill a case of irreparable loss or damage is
made out by a party to the suit, the court should not permit
the nature of the property being changed which also
includes alienation or transfer of the property which may
lead to loss or damage being caused to the party who may
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ultimately succeed and may further lead to multiplicity of
proceedings. In the instant case no such case of irreparable
loss is made out except contending that the legal
proceedings are likely to take a long time, therefore, the
respondent should be permitted to put the scheduled
property to better use. We do not think in the facts and
circumstances of this case, the lower appellate court and the
High Court were justified in permitting the respondent to
change the nature of property by putting up construction
as also by permitting the alienation of the property,
whatever may be the condition on which the same is done.
In the event of the appellant's claim being found baseless
ultimately, it is always open to the respondent to claim
damages or, in an appropriate case, the court may itself
award damages for the loss suffered, if any, in this regard.
Since the facts of this case do not make out any
extraordinary ground for permitting the respondent to put
up construction and alienate the same, we think both the
courts below, namely, the lower appellate court and the
High Court erred in making the impugned orders. The said
orders are set aside and the order of the trial court is
restored. The appeal is allowed.”

14. The principle is of particular significance here. The learned trial court
directed the parties to maintain status quo but simultaneously carved
out an exception allowing defendant No.1 to carry the existing
construction up to roof level and to undertake necessary work therein.
The directions are not inherently incapable of being reconciled, since
the permission was intended as a limited exception to the order of
status quo. The real question, however, is whether there was sufficient
material to justify that exception.
15. The principal consideration recorded by the trial court was that
photographs showed the building to have reached lintel level and that
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leaving the structure incomplete would cause greater loss to defendant
No.1. Expenditure already incurred and the inconvenience resulting
from postponement of further construction are undoubtedly relevant
considerations. But, on the materials referred to in the orders below, no
circumstance of such a nature was shown which made completion of
the roof indispensable to avoid an irreparable injury incapable of being
remedied later. There is also no recorded finding that defendant No.1
was residing in the structure or that non-completion of the roof would
deprive him of an existing residential occupation. On the other hand,
further construction would change the physical condition of the very
property whose entitlement is disputed.
16.
The undertaking furnished by the petitioner does not materially alter
this position. An undertaking not to claim equity and to remove the
construction in the event of an adverse decree is a relevant safeguard,
but it is not in every case a substitute for preservation of the disputed
property. Maharwal Khewaji Trust (supra) itself involved construction
at the defendant's risk and an undertaking against claiming
compensation, yet the Supreme Court considered preservation of the
property to be the proper course. Permitting construction first and
leaving its demolition to the result of the litigation may itself generate
the further controversy and multiplicity which an interlocutory order
should ordinarily avoid.
17.
Learned counsel for the petitioners has placed reliance upon Graftek
(supra) . The said decision does not lay down an inflexible proposition
that construction ought to be allowed whenever an undertaking to
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restore the property is furnished. The Court there expressly held that
the question depends upon the facts of each case. Significantly, the
defendants therein and their predecessor had remained in possession
since 1972 and 1937 respectively, construction had been made over a
part of the property long before institution of the suit, and the disputed
land had already lost its original agricultural character. It was in those
circumstances that the balance of convenience was held to favour the
defendants.
18. The present facts stand differently. Petitioner No.1 claims under a
purchase dated 19.04.2024 and the construction in question is recent.
The very identity and entitlement concerning Consolidation Plot
No.896 are under contest. More importantly, the subsequent decision
of the Supreme Court in Maharwal Khewaji Trust (supra) requires a
court, in the absence of demonstrated irreparable loss, to be slow in
permitting alteration of disputed property merely on the basis that
construction would be at the defendant's risk. Graftek (supra) therefore
cannot assist the petitioners on the facts of the present case.
19.
The reliance upon Skyline Education Institute (supra) also does not
persuade this Court to interfere. The principle in that precedent
protects a judicial exercise of discretion from appellate substitution
merely because another view is possible. The same judgment, however,
expressly preserves appellate interference where the court of first
instance has ignored settled principles governing interlocutory
injunction. In the present case, the learned appellate court did not
interfere merely because it preferred a different assessment of hardship.
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It found that, despite the prima facie case recorded in favour of the
plaintiffs and the admitted dispute over the very plot, allowing
construction would alter the nature and character of the property
before adjudication. In view of the principle subsequently laid down in
Maharwal Khewaji Trust (supra), such interference cannot be
characterised as an impermissible substitution of discretion.

20. The registered sale deed dated 19.04.2024 and the subsequent mutation
in favour of petitioner No.1 are certainly matters which the court
adjudicating the rights of the parties cannot ignore. At the same time,
their existence does not justify a conclusive finding of title in favour of
petitioner No.1 at the interlocutory stage. The plaintiffs' case is not
merely that the deed was irregularly executed. Their case is that the
vendors of petitioner No.1 had no subsisting transferable interest in the
disputed property. Whether that contention is correct must be decided
in the appropriate proceeding upon the complete chain of documents
and evidence.
21.
Insofar as reliance is placed upon mutation, the legal position is equally
9
clear. In Balwant Singh v. Daulat Singh , the Supreme Court held that
mutation entries do not convey or extinguish title and are relevant
essentially for revenue purposes. The Court held as follows:
“Assuming for the sake of arguments, that Mutation No.
1348 was on the basis of misunderstanding of the judgment
in the earlier proceedings, that having been allowed to remain
unaltered without challenge, cannot be brushed aside as
worth nothing. Anybody affected by such entries should have
challenged the same as provide under the law. In the absence

9
(1997) 7 SCC 137
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of that, the entries cannot be ignored. Be that as it may, we
have already noticed that mutation entries do not convey or
extinguish any title and those entries are relevant only for the
purpose of collection of land revenue. That being the position.
Mutation No. 1311 cannot be construed as conveying title in
favour of Balwant Singh and Kartar Singh or extinguishing
the title of Durga Devi in the suit property. Consequently,
the title to the suit property always vested with the widow
notwithstanding the Mutation No. 1311. Viewed in this
manner, the decision in the earlier proceedings namely,
decree in Suit No. 194/55 even assuming operates as res
judicata, will not be of any avail to the contesting
respondents, (plaintiffs) in the present suit because the reliefs
sought in the prior proceeding was for a simple declaration
that the `mutation gift' of 1954 would not affect the
reversionary rights of reversioners. As noticed already,
mutation entires will not convey or extinguish title in the
property. Therefore, under Mutation No. 1311 neither
Balwant Singh and Kartar Singh acquired title nor Durga
Devi's title in the property got extinguished. The earlier
court proceedings did not and could not convey title in favour
of reversioner, as the relief sought was for a simple
declaration as mentioned above. If no title as such was passed
on under the alleged `mutation gift', the limited right of the
widow in the property would get enlarged on the coming into
force of the Hindu Succession Act, 1956.”


22. The same principle was reiterated in Suraj Bhan v. Financial
10
Commissioner , where the Court held that an entry in the record of
rights does not, by itself, confer ownership. The learned trial court was
therefore right in declining to treat mutation as conclusive of title.
Equally, nothing in the present order should be read as holding the

10
(2007) 6 SCC 186
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existing consolidation or mutation entries to be invalid. Their legal
effect remains open for adjudication in the appropriate proceeding.
23. Much argument has been addressed regarding Consolidation Revision
Case No.79 of 2024, the earlier revision dismissed in 2001, and the
objection under Section 51 of the consolidation enactment. These
matters bear upon the ultimate forum and relief available to the parties.
It is neither necessary nor appropriate in the present proceeding under
Article 227, arising from an interlocutory injunction, to finally
pronounce upon the competing title or upon the maintainability of
every relief claimed in the suit. The petitioners' objection under Section
51 shall remain open to be considered by the learned trial court in
accordance with law, uninfluenced by any observation made while
deciding the interlocutory application.

24. For the same reason, pendency of Consolidation Revision Case No.79
of 2024 cannot at this stage be treated either as establishing the
plaintiffs' title or as extinguishing the effect of the existing consolidation
record. Its pendency only reinforces that the competing claim
concerning the property has not attained a final adjudication. The order
under challenge merely preserves the physical condition of the
disputed land while those rights are adjudicated. It does not amount to
correction of the consolidation record.
25. The submission based upon the Odisha Consolidation of Holdings and
Prevention of Fragmentation of Land (Amendment) Act, 2023 also does
not alter the interlocutory position. The 2023 Amendment omitted
Chapter V of the principal Act and inserted Section 36-A. Section 36-A
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validates transfers or partitions creating fragmentation which had been
made before commencement of the Amendment Act, subject to the
stated exception concerning completed eviction under the erstwhile
Section 35(2). The petitioner's sale deed is dated 19.04.2024, after the
amendment. The omission of Chapter V may remove the former
statutory impediment relating to fragmentation, but neither the
omission nor Section 36-A determines whether the petitioner's vendors
possessed the title which they purported to convey. That question
remains untouched by the amendment.
26. The further contention that the restraint substantially grants the final
relief claimed in the suit also does not furnish a ground for interference.
It is true that courts ordinarily avoid granting at an interlocutory stage
what would effectively amount to final relief. But the rule is not
11
absolute. Deoraj v. State of Maharashtra , recognises that the court
must also consider the converse situation, namely, whether
withholding protection would leave nothing meaningful to be
adjudicated when the main proceeding is ultimately decided. The
controlling considerations remain the strength of the prima facie case,
balance of convenience and irreparable injury. In the present case, the
impugned restraint does not declare title in favour of the plaintiffs or
dispossess petitioner No.1. It only prevents further construction which
would change the existing physical state of the disputed property until
the suit is decided.

11
(2004) 4 SCC 697
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27. On an overall consideration, this Court is unable to hold that the
learned Additional District Judge exceeded the permissible limits of
appellate jurisdiction. The learned trial court had found a prima facie
case in favour of the plaintiffs and had recognised that Plot No.896 was
disputed. Its principal reason for nevertheless permitting construction
up to roof level was the hardship arising from leaving an existing
structure unfinished. The appellate court was entitled to examine
whether that consideration constituted sufficient irreparable injury to
justify alteration of disputed property.
28. It is important to clarify that this conclusion is not founded upon any
final acceptance of the plaintiffs' chain of title. The sale deed dated
20.02.1953, the consolidation entries of 1989, the effect of the dismissal
of Consolidation Revision Case No.1421 of 1990, the subsequent
mutations, the sale deed dated 19.04.2024, the pending Consolidation
Revision Case No.79 of 2024, the objection under Section 51 and the
maintainability of the suit as framed are all matters which must be
determined by the competent forum in accordance with law. The
finding of a prima facie case made while considering temporary
injunction cannot be treated as proof of title.
29. Once the judgment of the learned appellate court is found to represent
a legally permissible exercise of appellate jurisdiction, this Court
cannot, under Article 227, restore the trial court's arrangement merely
because completion of the roof may appear to be another possible
equitable course. Such an exercise would convert supervisory
jurisdiction into a second appeal on discretion.
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ONCLUSION
VI. C :

30. Accordingly, this Court finds no ground for interference with the
judgment dated 22.08.2025 passed by the learned Additional District
Judge, Nimapara in FAO No.26 of 2025. The CMP is, therefore,
dismissed.
31.
Interim order, if any, passed earlier stands vacated.



(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
th
Dated the 30 October, 2026/



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