( 1 ) THIS appeal is directed against the order passed by the Third Additional civil Judge, Bangalore, on IA. No. XVIII in OS. No. 456/1964. The appellant is the plaintiff; the first defendant, who is now no more, was the father of the plaintiff; the second, third, fourth, fifth and sixth defendants are the plaintiff's brothers. The other defendants are the children of one or the other of the defendants. The plaintiff sought relief for a declaration that the deed of partition of 6-10-1952 is not binding on him and for cancellation of the same. He also sought for a declaration that he is entitled to 1/7th share in the immovable properties described in schedule 'a' annexed to the plaint. ( 2 ) IT may be mentioned that in paragraph 5 of the plaint the plaintiff states that his father was a dominating person and was held in great awe and respect by all his sons and he exacted implicit obedience from them. Prior to the document of 6-10-1952 there appears to have been a written agreement for partition on 18-7-1952. In June 1956 also there appears to have been an oral agreement for partition. In any event on 6-10-1952 a regular partition deed came into existence. The plaintiff's contention is that this document evidences an unfair and inequitable partition, wherein the properties allotted to the share of the second defendant are unjustifiably undervalued. The contention of the plaintiff is that the first and second defendants prevailed upon him and other brothers to enter into this partition. He therefore impeaches this partition and seeks a fresh partition of the joint family properties. In paragraph 22 (iii) of the plaint the plaintiff seeks relief in the following terms :"separate the plaintiff's share by metes and bounds and put him in exclusive possession thereof: and, in doing so allot to his share the properties allotted to his share at the partition of 6-10-1952 and a half share in premises Nos. 10, 38 and 39, and vacant sites attached to premises nos. 38 and 39, Shantaveeriah's lane and allot immoveable properties at such value as to make Up the difference between 1/7th share in the schedule properties and the properties allotted to him at the partition of 6-10-1952. OR. declare that a sum of Rs. 1,08. 10, 38 and 39, and vacant sites attached to premises nos. 38 and 39, Shantaveeriah's lane and allot immoveable properties at such value as to make Up the difference between 1/7th share in the schedule properties and the properties allotted to him at the partition of 6-10-1952. OR. declare that a sum of Rs. 1,08. 077-00 or such amount as may be computed by the court as the difference in value between 1/7th share of the plaintiff and the share allotted to him at the partition of 6-10-1962 be paid to the plaintiff out of the joint family estate. " ( 3 ) HIS claim to a half share in premises Nos. 10, 38 and 39 and vacant sites in Shanthaveeriah's lane referred to above is based on an agreement between himself and the other members of the family after the father made a gift of the said properties in favour of the second defendant by a gift deed dated 9-1-1956. The suit was instituted on 18-4-1958 and IA. No. 18 was made on 25-3-1969, under Or. 39, Rr. 1 and 2 and S. 151 of the CPC. He sought in the said apnlication an injunction against the second defendant and the proposed LRs. of the first defendant restraining them from putting any construction in the schedule premises. The premises referred to in the application is an item of property that fell to the share of the first defendant under the partition deed of 6-10-52. In the affidavit filed supporting this application, the plaintiff states that the second deiendant is trying to put up a construction in the schedule property. He has demolished the old structure that was existing. The proposed construction is estimated to cost Rs. 3 to 4 lakhs. If the plaintiff is to succeed in the suit he would be prevented from exercising his right over the portion of the schedule property since by that time the defendant would complete the construction and in the event of has succeeding in the suit it would take time to demolish the then existing structures, resulting in protracting his exercise of right over the property in which he claims a share. Further, it is alleged that if the defendant is to put up a massive construction on the schedule property he would be ha a position to plead equities in his favour which would prejudice, the plaintiff's right to get the schedule property allotted to him. ( 4 ) THE second defendant refuted the allegations made in the plaint on the basis of which the plaintiff sought the declaration. He stated that the partition deed and the subsequent documents relating to the partnership amongst the first defendant and his sons which came into existence on 18-7-1952, the dissolution of the same on 29-9-1955, another partnership between the defendants 1 and 2 and the plaintiff which came into existence on 27-10-1955 represented genuine transactions; that there is no valid reason to impeach the validity of any of these documents and in particular the partition deed dated 6-10-1952 in respect of which the relief is sought. He alleges that under the document of 6-10-52 the scheduled property has fallen to his share. He contends that the property was in a dilapidated condition and that the Corporation had served a notice on him asking him to demolish the structure and remove the debris and arrange for the construction of a new building. He alleges that on 31-10-1968 about six months prior to the filing of IA. No. XVIII there was 'guddali pooja' in respect of the proposed construction and that the plaintiff and the other brothers attended the function. He further pleaded that in the event of the plaintiff succeeding in the suit, the injury that would be caused td him would be greatly less than the injury that would be caused to the first defendant. The first defendant cannot afford to leave the dilapidated structure in the same condition in which it was then, and it would not fetch any income. Therefore, it was necessary that he should be permitted to put up the construction. He characterised the plaintiff's suit as speculative and actuated by malice. Taking all the circumstances of the case and the conduct of the plaintiff preceding the institution of the suit, his contention is that the balance of convenience is in his favour and therefore the plaintiff is not entitled to the injunction sought for. ( 5 ) THE learned Civil Judge found that the contention of the second defendant has much force. ( 5 ) THE learned Civil Judge found that the contention of the second defendant has much force. He held that in the circumstances of the case it was not possible to hold that the plaintiff has a prima facie case. He also came to the conclusion that on the material on record it could not be held that the partition deed dated 6-10-1952 is a sham and nominal one. I may at this stage mention that there is no issue incorporating the question as to whether the document of 6-10-1952 is sham and nominal. The issue framed in the case in respect of this document is whether the partition deed dated 6-10-1952 is inequitable as alleged and whether therefore the partition is liable td be reopened. Another issue deals with the question whether the said partition was a result of exercise of fraud and undue influence, on the part of the second defendant. It is unnecessary to consider the other issues or to make a detailed reference to the other allegations in the pleadings or in the affidavits filed by the parties. The learned Judge held that as there are a large number of properties available for partition, in the event of the plaintiff succeeding, it would not be difficult to adjust the equities amongst the parties. He also came to the conclusion that the balance of convenience is not in favour of the plaintiff. He observes that the plaintiff and the second defendant being in the same position, it is quite possible for the second defendant to seek that the property should be allotted to him during an equitable partition. For these reasons, the learned Judge dismissed the plaintiff's application. ( 6 ) SRI S. Nanjundaswamy, the learned Counsel appearing for the appellant submitted that the learned Judge committed an error in stating that he could not hold that the plaintiff had a prima facie case. It must be understood that this expression of an opinion by the trial Court is to be confined only for the purpose of the interim relief sought in IA. No. XVIII. The learned Judge has been careful to state in an earlier part of his order that :"at this stage, without investigation into the materials it is difficult for me to conclude that the plaintiff is prima jade entitled to the reliefs sought for. No. XVIII. The learned Judge has been careful to state in an earlier part of his order that :"at this stage, without investigation into the materials it is difficult for me to conclude that the plaintiff is prima jade entitled to the reliefs sought for. But to say this, is not to hold an opinion that the plaintiff is not entitled to such a relief at all, as it may be on investigation into the circumstances of the case the plaintiff may be held entitled to the reliefs sought. " ( 7 ) SO that I cannot accept the contention of the appellant's Counsel that the learned Judge has prejudged the tenability of the plaintiff's claim for the reliefs he has sought in the plaint. It is represented by the respondents' counsel that at the time the partition deed of 6-10-52 came into existence, the plaintiff was about 24 years old and he was a party to the partnership referred to earlier. It is only in 1958 that he has come for relief in this suit. It is unnecessary for me to express any opinion as to the tenability or otherwise of the plaintiff's claim; but, however, I cannot for the purpose of ia. XVIII say that the observations made by the lower Court in regard to what appears prima facie regarding the right of the plaintiff is incorrect. Sri Nanjundaswamy emphasised the legal position, that a suit for re-opening a partition as the one in question stands in the same position as a suit for partition in which the claim for partition is made for the first time. On the basis of this proposition, Sri Nanjundaswamy submitted that the plaintiff is a cd-sharer along with defendant 2 in respect of the properties in question, and therefore if the second defendant should be permitted to put up a massive structure the chances of the plaintiff getting the property allotted to his share in the event of his success would become very remote. In support of this contention, he drew my attention to a decision in Hemanta Kumar Ray v. Baranagore Jute Factory Co. 20 Cal. L. J. 441. ( 8 ) IN particular, he drew my attention to an extract incorporated in it with. approval from the judgment of Sir George Jessel, M. R. in Krehl v. Burrell (1878) 7 Ch. D. 551, 554. 20 Cal. L. J. 441. ( 8 ) IN particular, he drew my attention to an extract incorporated in it with. approval from the judgment of Sir George Jessel, M. R. in Krehl v. Burrell (1878) 7 Ch. D. 551, 554. , wherein it is observed that :"if with the notice of the right belonging to the plaintiff, and in defiance of that notice, without any reasonable ground, and after action brought, the rich defendant is to be entitled to build up a house of enormous proportion at an enoromous expense, and then to say in effect to the Court, 'you will injure me a great deal more by pulling it down than you will benefit the poor man by restoring his right', that simply means that the Court in every case, at the instance of the rich man, is to compel the poor man to sell him his property at a valuation. That would be the real result of such a decision. If I acceded to this view, I should add one more to the number of instances which we have from the days in which the Bible was written until the present moment, in which the man of large possessions has endeavoured to deprive his neighbour, the man of small possessions, of his property, with or without adequate compensation. " ( 9 ) THIS observation which is forceful should be taken to apply not to all cases but with reference to the facts of the particular case. If there was only one property and not numerous items as in this case, perhaps there would have been much force in the observations on which Sri Nanjundaswamy has placed reliance. There are numerous properties in this case and adjustments of equities are not difficult. In the case referred to in Hemanta kumar Ray's case (1), the circumstances were such that if the defendants were allowed to build the structure the result would have been that the area left vacant would not be sufficient to cover the share of the plaintiff. Sri Nanjundaswamy cited several decisions of co-sharers where it has been laid down that a co-sharer should not be allowed to change the nature of the property liable for partition or to put up huge structure on the common property. These decisions must be taken as I mentioned earlier with reference to the facts pertaining to each case. Sri Nanjundaswamy cited several decisions of co-sharers where it has been laid down that a co-sharer should not be allowed to change the nature of the property liable for partition or to put up huge structure on the common property. These decisions must be taken as I mentioned earlier with reference to the facts pertaining to each case. In this appeal from the facts which have been mentioned earlier and also set out in the order of the lower Court, it appears to me that applying the tests of the existence of a prime facie case, the balance of convenience and the question whether the injury that is apprehended is an irreparable one or not, the view taken by the trial Court is unexceptionable. ( 10 ) I may refer to a decision in Lingaraj v. Bhubaneswar AIR. 1962 Orssa 31. . This decision cited by the appellant's Counsel appears to me to contain observations which are relevant to the question for decision. The Hon'ble Court observes that while considering the question of injunction each case must be decided upon its own particular facts and it would be left to the Court to exercise judicial discretion upon proof of circumstances showing on which side the balance of convenience lies. The ruling in Hemanta Kumar Ray's case (1), cannot be taken as laying down a rigid rule. In Krishna Swamy v. S. I. Film Chamber, AIR. 1969 Mad. 42. it is observed as follows :"the principles which govern the grant or refusal of an interim injunction in aid of the plaintiff's right are all well-settled and they depend upon a variety of circumstances. In the nature of things, it is impossible to lay down, any set, rigid or general rule on the subject by which the discretion of the Court ought in all cases be regulated. "therefore, the question as to whether the injunction in this case should be granted or not is to depend upon the facts of this case. As I have mentioned already, the preceding conduct of the parties is a material factor bearing on the question whether the interim relief should be granted or not. Mere existence of a prima facie case is not the sole criterion governing the issue of an order of temporary injunction. The facts of each case must be examined for deciding whether an injunction should or should not issue. Mere existence of a prima facie case is not the sole criterion governing the issue of an order of temporary injunction. The facts of each case must be examined for deciding whether an injunction should or should not issue. What I have stated above is enunciated in the decision in national Advertisers v. MSRTC. (5 ). Even if the appellant's contention that the plaintiff has no pnma facie case is incorrect, and the plaintiff has a prima facie case, even then, he would not be entitled to an order of injunction unless other factors also justify it. It is unnecessary for me to refer to the other litigations between the parties which the respondents submit lend support to their submission that the plaintiff has acquiesced in the partition of 6-10-1952 and the institution of the present suit, out of which this Mis. Appeal arises is only an after-thought being the result of grievance that his father and the second defendant did not give him a half share in the property which is the subject matter of the gift in favour of the second defendant by the first defendant under the gift deed of 9-1-1956. ( 11 ) IT is no doubt true that after the second defendant filed his counter the plaintiff has not filed his reply. Though it is so, I cannot ignore the allegations made by the first defendant that his brothers other than the plaintiff have proceeded with fresh constructions in the properties allotted to their shares. And defendant 3 who is one of the brothers has already put up a fresh construction in one of the items of the property allotted to him without any objection being raised by the plaintiff. The relief asked for by the plaintiff which I have extracted in the earlier part of this judgment, is for allotment to him of the properties that have fallen to his share under the partition deed sought to be set-aside. The same consideration can reasonably apply to the 2nd defendant. Taking all the circumstances of the case and as disclosed at present in the plaint it is also evident that equities could be adjusted by monetary benefits. It appears to me that the trial court was correct in not issuing an order of temporary injunction. The appeal falls and is dismissed with costs. --- *** --- .