Binod Kumar Roy, J.

1. The plaintiff is the appellant herein. She assails an order refusing to grant injunction.

2. The relevant facts, as it is apparent from perusal of the impugned order as also the plaint, are as follows :

The suit in question was filed partition of l/3rd share by appointing a pleader Commissioner alleging that her father Ragho Saran Sahi had three wives, that she and Defendant No. 5 were daughters of the 2nd wife, whereas Defendants 2 and 3 are her step brother and sister respectively and defendant No. 1 is her step mother (the 3rd wife of Ragho Saran Sahi; that the first wife had died issuless; and that the third re-marriage took place after 10 years of the death of her mother. She also prayed for graut of permanent injunction for restraining the defendants from transfering the suit properties which includas the residential house. She filed an application for grant of an interim injunction under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure stating therein that the defendants, who are co-sharers, want to execute certain documents in connivance with lathials to jeopardise the interest of the plaintiff. Notice was issued to the defendants who filed their show cause asserting that the plaintiff and Defendant No. 5 are not the daughters of late Ragho Saran Sahi; that the court fee was not properly paid by the plaintiff; that the plaintiff has got no title or possession over any portion of the suit land; that the plaintiff and defendant No. 5 are in collusion with each other; that Defendant No. 2 to 4 received the suit properties by a deed of gift dated 18-6-1983 executed by Defendant No. 1. The court below as usual considered the three necessary ingredients namely the prima facie case, balance of convenience and irreparable injury. In paragragh 5 of the impugned order, the court below took the view that there is a bona fide dispute and prima facie case in favour of the plaintiff. In paragraph 6 it also recorded a finding that the defendants are not in possession of the suit land. However, the prayer of the plaintiff-appellant was rejected on the ground that she ought to have paid ad valorem court fee under Section 7(iv)(c) of the Court Fees Act over the valuation of her share in the suit properties. It also held that although the plaintiff has stated about the existence of Bakshisnama executed by defendant No. 1, no relief has been claimed by her for cancellation of the same. It also further held that in the said view of the matter more inconvenience will be caused if the injunction is issued than it is not issued and thus the balance of convenience is in favour of the defendants. It also took the view that the sale which may be made by defendant Nos. 1 to 4 would be hit by lis pendens and thus there is no question of irreparable loss.

3. In support of the appeal Mr. Nagendra Rai and following him Mr. Ajit Kumar, submitted as follows :

(i) On the case set forth by the plaintiff-appellant she happens to be a co-sharer and on the finding that she has got prima facie case for trial, the court below erred in holding that it was mandatory for her to get a relief for cancellation of the deed of gift executed by her step-mother completely forgetting that a co-sharer can unilaterally avoid a document to which he was not a party and thus it was not at all necessary for her to make such a prayer in the suit in question which was filed for partition. The Court cannot compel a plaintiff to file a suit for cancellation and pay court fee ad valorem.

(ii) The reasonings given by the court below that the balance of convenience is in favour of the defendants, for the said reason, is apparently erroneous.

(iii) The court below has also misconstrued the real meaning of the word "irreparable injury". The petitioner being a co-sharer, could not be allowed to be dispossessed by the strangers after permitting the defendants-respondents to make transfer of the lands in question.

4. Mr. Chaudhary, learned Counsel