The requirement for the plaintiff to prove prima facie case, balance of convenience, and irreparable loss for the grant of temporary injunction, and the significance of possession and validity of documents in property disputes.

1. This appeal is directed against the order dated 1.5.2004 passed by the 1st Sub-ordinate Judge, Munger in T.S. No. 142/2003 under which he has granted injunction restraining the appellants and other defendants from interfering with the possession of the plaintiff (respondent no. 1) over the suit property.

2. Learned counsel for the parties were heard.

3. The case of the plaintiff (respondent no.1), in brief, is that she had acquired the suit property and the land mentioned in Schedule I of the plaint through a registered sale deed dated 4.8.1961 and after purchase came in possession. She thereafter sold the Schedule I property to Sri Sitaram Jee and gave possession to the deity. Defendant No.1 (respondent No. 2), the younger brother of her husband, was not in good terms with her husband after the death of her mother. He executed 21 sale deeds of the suit land in favour of the other defendants (appellants and other respondents) and they are making preparation to take forceful possession on the basis of sale deeds. The contention of the plaintiff, hence, is that she has a good prima facie case for temporary injunction and the balance of convenience is in her favour and she would suffer irreparable loss if injunction is not granted.

4. The case of respondent no. 2 (defendant no.1) is that the property was a joint family property and was purchased out of the joint family fund in the name of the plaintiff. There was partition of the joint family property between the husband of the plaintiff (defendant no.1) and their mother and the land sold by defendant no.1 to the other defendants had fallen in the share of defendant no.1. A Memorandum of Partition was also prepared. After partition his name was mutated and he came in possession. The fact of this partition was admitted by the husband of the plaintiff in the sale deed executed by him in favour of one Feku Sao. The purchasers have purchased a portion of the land after finding perfect title and possession of defendant no.1 and they are in possession. Therefore, the plaintiff has no prima facie case and if injunction is granted the purchasers would be dispossessed and hence, the balance of convenience lies in their favour and they would suffer irreparable loss if the injunction is granted.

5. Learned lower court after hearing the parties and considering the documents held that the sale deed by which the suit land was purchased is in the name of the plaintiff. She is not a party in the partition of 25.1.1981. If her husband has admitted the partition that would not bind her. In Eviction Suit No. 62/1983 the Memorandum of Partition was found to be forged and fabricated. It is also not registered. Therefore, she has a prima facie case. She has also executed a lease deed in favour of her son and her son is doing business of LPG gas on the portion of the suit land from much before the sale deeds executed by defendant no.1 in favour of the other defendants. So, the balance of convenience lies in her favour and she would suffer irreparable loss if injunction is not granted.

6. Accordingly, by the impugned order the court below has restrained the defendants from interfering in possession of the plaintiff.

7. It is well settled that so far grant of temporary injunction the plaintiff must prove that (i) he/she has a prima facie case, (ii) the balance of convenience lies in his favour and (iii) she would suffer irreparable loss if the injunction is not granted and if any of these ingredients is lacking the injunction can not be granted.

8. I do not want to discuss in this appeal as to whether the plaintiff (respondent no. 1) has a prima facie case. However, from perusing the records of the case and after hearing the parties it appears that it is an admitted position that after the alleged partition, defendant no.1 (respondent no. 2) had got his name mutated in respect of the land allotted in his favour. The plaintiff (respondent no.1), of course, has stated in the plaint that she did