In a partition suit, the party seeking an injunction must establish a prima facie case of title and possession, and the balance of convenience must favor the injunction.

ORDER

I. P. Mukerji, J. - The suit before the learned court below was for declaration of title of the appellants/ plaintiffs (the appellants) and for partition of a property claimed to be jointly owned and possessed by them and the respondents/defendants (the respondents).

2. The subject matter of dispute is a parcel of about 53 decimals of land situated at Mouza - Barisha under P.S - Kolaghat in the district - Purba Medinipur. The appellants say that the appellant Nos.1 to 7, the five sons and two daughters of Bhupati Majhi inherited intestate from their father 18 decimals. The other appellants 8 to 14 have inherited 17 decimals from Jugal Chandra Maiti. All this adds upto 35 decimals. The appellants also say that the respondent No. 1, Sukbinder Singh is the owner of 18 decimals of land out of which he has transferred some part to his minor children the respondent Nos. 2 and 3.

3. According to the respondents, this 53 decimals of land originally belonged to Rakhal Chandra Bera and his brother Madhab Chandra Bera in equal shares. One Gunadhar Bera became the owner of the entire 53 decimals of land. As he was illiterate, he could not record his name in the land register as a result of which only 1/3rd share was recorded in the name of Jugal and Gunadhar Bera and 2/3rd in the name of Jugal Chandra Maiti and Bhupati Majhi. Therefore, according to the respondents, the appellants have no share in the property. The respondents say that the Beras have transferred the property in favour of the first respondent who along with the other respondents to whom he has transferred part of the property claims to be the owner of the entire property.

4. In this suit for declaration and partition, an interim application was moved by the appellants to restrain the respondents from making any construction on the land. The appellants say that such is the speed of construction undertaken by the respondents that if they are not restrained by the court, they will make construction over the entire parcel of land, to their great prejudice.

5. The learned judge of the court below narrated all the above facts in a detailed judgment and order. He refused the order of injunction. It was on the ground that the appellants could only produce the "LRR-OR in the name of Bhupati Majhi and Kanan Bala." They could not produce the original title deeds, by which their predecessor-in-interest Bhupati Majhi had allegedly purchased the property from Subal Chandra Majhi on 26th June, 1953.

6. Learned counsel for the respondents submits that the appellants had to prove their title to the property in order to obtain any order of injunction.

7. Learned counsel for the appellants submits that even when the initial order of injunction passed by the learned court below was in force, the respondents were making construction in violation of the said order. Now, that the order of injunction has been vacated, they are making construction with great rapidity.

8. The learned court below had initially passed an order of injunction. On hearing the interim application and on the above grounds it vacated this order.

9. Hence this appeal.

10. In a partition suit, ownership is undivided and possession is joint. This suit may include reliefs seeking declaration of title and thereafter partition. In such a suit, the court has to declare the title of the parties in a preliminary decree and then proceed to partition the property.

11. In this suit the right to the property is in question. The property under the rule of lis pendis in Section 52 of the Transfer of Property Act, 1882 cannot be transferred to a third party except with the leave of the court and on the terms and conditions imposed by it.

12. Transfer of property by the respondents is not alleged. It is alleged that they are proceeding to make construction thereon.

13. An important question arises in this appeal. What considerations are to be taken into account by the court in granting or refusing to grant an interim order of injunction restraini