IMPORTANT POINT
In absence of partition of property belongs to co-owner jointly, an outsider purchasing an unpartitioned share in property not entitled to take forcible possession under law.

Sanjay Misra, J.—Heard Sri Shesh Kumar learned counsel for the defendant petitioners and Sri Kshitij Shailendra who has appeared on behalf of the plaintiff/respondent No.1. The respondent No.2 has been described as proforma defendant respondent and therefore no notice is required to be issued to him.

2. Since the writ petition has been filed along with all the relevant documents as annexures thereto and the matter has been heard at quite some length hence is being decided at this stage itself without requiring the plaintiff/respondent to file counter/affidavit.

3. According to learned counsel for the defendant/petitioners the plaintiff/respondent filed a Suit No.194 of 2006 before the Court of Civil Judge (Junior Division) Bareilly. Along with the Suit the plaintiff/respondent filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure for grant of temporary injunction. After noticing the defendant/petitioners the said injunction application was decided by the Trial Court rejecting the same by recording a specific finding that the plaintiff/respondent was not found in possession over the land in question, he has not been able to make out a prima facie case, the balance of convenience was not in his favour and there was no irreparable loss to the plaintiff/respondent. Feeling aggrieved the plaintiff/respondent filed a Misc. Appeal No.44 of 2009 which has been decided by the impugned order dated 1.5.2010 by the Additional District Judge, Court No. 2, Bareilly. According to learned counsel the appellate Court has allowed the appeal and granted an injunction to the plaintiff/respondent without setting aside the findings on possession recorded by the Trial Court. .

4. The submission of Sri Shesh Kumar is that the petitioners are purchasers from, the co-sharer of the plaintiff-respondent inasmuch as in a suit for partition under Section 176 of the U.P.Z.A. & L.R. Act Smt. Rukmani Devi was held to be owner of half-share in the property in question. Sri Shesh Kumar has submitted that Smt. Rukmni Devi executed a Will of her share in favour of one Smt. Kamini Kanchan and Smt. Kamini Kanchan executed the sale-deed dated 9.7.1997 in favour of the petitioners and put the petitioners in possession of the land. He submits that proceedings under Section 145/146 Cr.P.C. was initiated and the Order under 146 Cr.P.C. clearly states that the petitioners were found in possession and the plaintiff-respondent was required to handed over the same to the defendant-petitioner. On the strength of the aforesaid order Sri Shesh Kumar has submitted that the factum of possession in favour of the defendant/petitioner was clearly established on record and therefore the first Appellate Court has illegally set aside the order of the Trial Court and granted temporary injunction to the plaintiff/respondent

5. Sri Shesh Kumar submits that the law is settled that prima facie case, balance of convenience and irreparable loss the three ingredients essential for grant of temporary injunction have to be established and since they are absent in the case of the plaintiff the Courts could not grant such a temporary injunction.

6. In so far as the aforesaid proposition of law submitted by Sri Shesh Kumar is concerned there is no dispute about it. In the present case it is the own pleading of the defendant petitioner that proceedings for partition under Section 176 of U.P.Z.A. & L.R. Act had been started during the life time of Smt. Rukmani Devi. A writ petition was filed by one of the co-owners being Writ Petition No.12945 of 1993 and the writ Court had passed an interim order on 19.4.1993 whereby it was provided that in the garb of the order passed in the partition proceedings the petitioner therein would not dispossess the respondent Smt. Rukmani Devi. Sri Shesh Kumar while referring to the interim order has submitted that the writ petition is still pending and the interim order is still operative. He draws strength from the said interim