R. K. DASH, J. ( 1 ) DEFENDANT No. 1 in Title Suit No. 251 of 1997 on the file of the civil Judge (Senior Division), Cuttack, is in appeal against the orders dated 16. 8. 1997 and 4. 10. 1997 passed in Misc. Case Nos. 277 of 1997 and 359 of 1997 respectively. In the former case, on the prayer of the plaintiffs, defendants 1 and 2 were restrained from making any construction over suit 'a' and 'b' schedule properties till final disposal of the suit. In the latter case the Court below rejected the prayer of defendant No. 1, to modify the aforesaid order of injunction. Aggrieved by the aforesaid two orders, defendant No. 1 has preferred these two Miscellaneous Appeals. ( 2 ) PLAINTIFFS are sons, widow and daughters of Late Styanarayan Singh. They have filed the aforesaid suit for partition of Schedule 'a' property and for permanent injunction restraining the defendants from changing the nature and character of Schedule 'b' property which is a common passage. ( 3 ) PLAINTIFFS case, in short, is thus : The suit property appertains to Sabik Plot No. 1241 measuring Ac. 0. 126 decimal under Sabik khata No. 416 of mouza Patapur popularly known as Gangamandir within the town of cuttack. Originally it belonged to Krushna prasad Singh. Predecessor of the plaintiffs, gopal Prasad Singh and Govind Prasad Singh. The aforesaid owners amicably divided the same by means of a registered deed of partition dated 16. 8. 1940 and in the said partition ac. 0. 118 dec. out of total area of Ac. 0. 126 decimal from southern side were allotted in the share of Krushna Prasad Singh. Since the date of partition. Krushna Prasad Singh possessed the same as his dwelling house, kitchen, latrine and a portion of it as a passage. Upon his death the same property devolved upon his only son Narendra Prasad Singh. Narendra was survived by six sons, namely, Laxminarayan, Satyanarayan, Badrinaranyan, kedarnarayan, Adityanarayan and Rabinararyan and only daughter Priyambada. After narendra's death his sons possessed the suit property jointly keeping a portion of it as a joint passage and subsequently due to inconvenience, they possessed separately without there being partition by metes and bounds. Laxminarayan sold his l/7th share to narasingh Charan Mohanty by registered sale deed dated 20. 8. 1970. After narendra's death his sons possessed the suit property jointly keeping a portion of it as a joint passage and subsequently due to inconvenience, they possessed separately without there being partition by metes and bounds. Laxminarayan sold his l/7th share to narasingh Charan Mohanty by registered sale deed dated 20. 8. 1970. Similarly, Badrinarayan and Rabinarayan sold their shares to Surendranath Dwivedy by registered sale deed dated 1. 8. 1970 who subsequently sold the same to defendant No. 1 in 1988. Kedarnarayan, adityanarayan and Priyambada transferred their respective shares jointly by a deed of sale deed dated 23. 3. 1981 to one Biswanath Pandit who subsequently sold the same to one sanatan Behera in 1992 and the latter transferred it to defendant No. 1. The plaintiffs as successor of Satyanarayan Singh have l/7th share in the suit property and because the defendants are influential persons in the locality and have started putting up new construction over a major portion of 'a' Schedule property by encroaching upon the common passage described in Schedule 'b' of the plaint, they have filed the present suit claiming the reliefs as aforesaid. ( 4 ) DEFENDANT No. 1 has filed the written statement contending, inter alia, that the suit property is no more joint, inasmuch as there was amicable partition among Late Narendra kumar Singh and his six sons and since then they were in separate possession of specific portion of the suit property alliotted to them in their share. Except Satyanarayan, others transferred their share of property by different registered sale deeds and in that view of the matter, the suit property was no more the dwelling house belonging to any joint family. The further case of defendant No. 1 is that his vendor Krusaka Trust purchased from laxminarayan, Badrinarayan and Rabinarayan their shares of property under different sale deeds in 1970 and got delivery of possession to the knowledge of plaintiffs' predecessor and later on, the aforesaid vendee sold the same with the house standing thereon to defendant no. 1 and put him in possession. Similarly, priyambada. daughter of Narendra acquired title in respect of Ac. 0. 040 decimal of the suit property by virtue of a deed of gift as also a sale deed from her father in the years 1961 and 1970 respectively out of which she transferred Ac. 0. 013 dec. 1 and put him in possession. Similarly, priyambada. daughter of Narendra acquired title in respect of Ac. 0. 040 decimal of the suit property by virtue of a deed of gift as also a sale deed from her father in the years 1961 and 1970 respectively out of which she transferred Ac. 0. 013 dec. by way of sale to biswanath Pandit in the year 1981. In said transferee while in possession sold the same to one Sanatan Behera in 1992 and in 1997. Sanatan Behera transferred to defendant No. 1. After such sale Priyambada had title to the remaining Ac. 0. 027 decimal, but she sold the entire A.) 040 decimal to one Mangala Saha in 1984. On the basis of purchase Mangala saha acquired title in respect of Ac. 0. 027 decimal and possessed the same having constructed a house thereon. The plaintiffs never raised any objection when Mangala Saha entered into possession and constructed a building. Defendant No. 1 having purchased a large portion of the suit property by different sale deeds has been possessing the same as owner thereof and since the house standing thereon is an unplanned one, he in order to have his office separated from his residential portion got the plan approved from the Cuttack development Authority, collected materials and started constructing pillars. In the meanwhile with a view to restrain him from proceeding with the construction, plaintiffs brought the suit making all false and frivolous allegations. ( 5 ) IN the suit, the plaintiffs filed a petition under Order 39. Rules 1 and 2 read with Section 151. CPC praying for temporary injunction restraining the defendants from changing the nature and character of the suit property and from making any construction till disposal of the suit. This prayer was opposed to by defendant No. 1. ( 6 ) LEARNED Trial Court upon hearing the counsel for the parties did not accept the plea of defendant No. 1 of amicable partition of the suit property among plaintiffs' Predecessor Satyanarayan, his brothers and father and consequently held that the suit property having not been partitioned by metes and bounds among the co-sharers, defendant No. 1 as a purchaser is not entitled to put up construction on any portion thereof. Accordingly, it allowed the plaintiffs' prayer and restrained defendant No. 1 from making any new construction. Accordingly, it allowed the plaintiffs' prayer and restrained defendant No. 1 from making any new construction. Subsequently defendant No. 1 sought for modification of the aforesaid order in Misc. Case No. 359 of 1997 and same did not yield any result. Hence, the present appeals. ( 7 ) MR. S. Misra-2- learned Counsel appearing for defendant No. 1. appellant herein strenuously contended that there being no allegation that defendant No. 1 has been possessing more than the share he purchased under different sale deeds from Schedule 'a' property inasmuch as it being not the case of the plaintiffs that defendant No. 1 has encroached upon their l/7th share in the suit property, the learned Trial Court should not have granted the discretionary relief of injunction in favour of the plaintiffs. He further submitted that defendant No. 1 is in occupation of that part of the suit 'a' Schedule property including the old house which his vendors were in possession and necessary construction/repair which he has taken up does not in any way affect the interest of the plaintiffs and in that view of the matter all the three conditions for obtaining the relief of temporary injunction, such as, prima facie case, balance of convenience and irreparable injury, being absent, the learned Court below should have refused the relief of injunction. ( 8 ) MR. G. K. Behera. learned Counsel appearing for the plaintiffs, on the other hand, submitted that the suit property being a dwelling house belonging to the joint family of the plaintiffs and defendant No. 1 being a stranger to their family is not entitled to joint possession, as envisaged in Section 44 of the Transfer of property Act and therefore, no fault can be found with the learned Trial Court in passing the impugned order of injunction. Repelling such contention, Shri S. Misra-2 contended that the plaintiffs' suit is not based on Section 44 of the TRANSFER OF PROPERTY ACT, 1882, inasmuch as it is not their case that the suit property is a dwelling house belonging to undivided family and defendant No. 1 being a stranger is not entitled to joint possession and moreover, no relief under Section 4 of the Partition Act has been claimed. He further urged that contention as is being raised now was not raised before the Court below and therefore the plaintiffs are not entitled to take such plea for the first time in the present appeal. Added to that the suit property, contended Mr. Misra, has lost the character of dwelling house belonging to undivided family in that. Mangala Sahu, one of the purchasers being a stranger has been possessing a portion of the suit property since 1984 after constructing a house thereon and no objection was ever taken by the plaintiffs to her possession. Once possession of a stranger transferee has been tolerated by the plaintiffs they cannot question defendant No. 1's possession on the ground that he being a stranger is not entitled to possession on the ground that he being a stranger,is not entitled to possession of the suit property by virtue of purchase. ( 9 ) BEFORE adverting to the various contentions raised at the Bar, I would like to say that since the Original Suit is pending for adjudication any observation made in this judgment will not any way affect the merit of the suit. ( 10 ) PLAINTIF's suit is one for partition of their l/7th share in Schedule 'a' property and for permanent injunction restraining the defendants from making any construction over the passage described in Schedule 'b' property. Besides prayer has been made for mandatory injunction directing the defendants to remove the pillars constructed over 'b' Schedule property and injunction from making any construction over Schedule 'a' property till disposal of the suit. A reading of the averments made in the plaint does not show that the suit is either based on Section 44 of the TRANSFER OF PROPERTY ACT, 1882 or Section 4 of the Partition Act moreover, no allegation whatsoever has been made by the plaintiffs that defendant No. 1 has been in possession of more than the shares which he has purchased by different sale deeds. In that view of the matter, question arises whether the plaintiffs are entitiled to the discretionary relief of interlocutory injunction as prayed for. It is well known that injunction is an equitable remedy which is granted at the discretion of the Court and not as a matter of course. Circumstances under which such a relief is granted is no longer res Integra. In gujarat Bottling Co. Ltd. v. Coca Cola Co. It is well known that injunction is an equitable remedy which is granted at the discretion of the Court and not as a matter of course. Circumstances under which such a relief is granted is no longer res Integra. In gujarat Bottling Co. Ltd. v. Coca Cola Co. and Others, their Lordships in paragraph 43 of the judgment observed :"the grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion, the Court applies the following tests- (i) whether the plaintiff has a prima facie case; (ii)whether the balance of convenience is in favour of the plaintiff: and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection, has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the 'balance of convenience' lies. (See Wanter Ltd. v. Antox India (P) Ltd. , (1990) (Suppl.)scc at pp. 731-32) In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertaintly were resolved in his favour at the trial. (See Wanter Ltd. v. Antox India (P) Ltd. , (1990) (Suppl.)scc at pp. 731-32) In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertaintly were resolved in his favour at the trial. " ( 11 ) THE three tests which a party has to satisfy for obtaining an order of interim injunction are : (i) that he has a prima facie case, (ii)that balance of convenience leans in his favour and (iii) that he would sustain irreparable injury if injunction is refused, and if one of such tests is not satisfied the Court would be well within its jurisdiction to refuse injunction which is discretionary one. In the case in hand admittedly plaintiffs have 1/7th share in Schedule 'a' property. Their specific assertion is that the same was never divided by metes and bounds, whereas according to defendant No. 1, it was amicably divided amongst the co-sharers and therefore, the present suit for partition is not 'maintainable. There being no material placed on record to support the contention of defendant No. 1, it is left open to be adjudicated by the Court below on the basis of evidence to be adduced during trial. For the limited purpose of answering the question posed in the appeal. 1 would hold that the plaintiffs have a prima facie case, inasmuch as they being owners of l/7th share in the suit property are entitled to maintain the suit for partition. So far as the other two tests, such as. 'balance of convenience' and 'irreparable injury' are concerned, since there is no assertion in the plaintiffs' pleading that defendant No. 1 has been possessing more than what he has acquired by different sale deeds and has encroached upon the land in possession of the plaintiffs, their right in respect of their share in the suit property is not affected and no injury would be caused to them if defendant No. 1 puts up any new construction over that part of the suit property under his possession. ( 12 ) COMING to the altogether new point raised by the plaintiffs in the present appeal that defendant No. 1 being a stranger is not entitled to joint possession of the dwelling house belonging to the undivided family, it may be stated that all the co-sharers except the plaintiffs' predecessor transferred their shares of property by different sale deeds since 1961 onwards. One of the purchasers is one Mangala saha who is a stranger to the family and since the year of her purchase, i. e. 1984 she has been in possession of a portion of the suit property by constructing building thereon. At no point of time either the plaintiffs or their predecessor objected to her such possession. By her such uninterrupted possession she was regarded as co-owner. Whatever rights the plaintiffs had under Section 44 of the Transfer of Property Act or Section 4 of the Partition act against her have been waived by them by their own conduct. In the case of vendors of defendant No. 1, no objection was taken at any point of time by the plaintiffs or their predecessor when by virtue of their purchase they entered into possession of the suit property. In this factual backdrop could it be said that the suit property has retained the character of undivided qua the dwelling house of the plaintiffs' family?? The object of Section 44 of the t. P. Act and Section 4 of the Partition Act is to keep off the stranger who may purchase the undivided share of some co-owner in the dwelling house and to make it possible for the co-sharer who has not sold his share to buy up the share from the stranger purchaser. The suit property described in Schedule 'a' in the present case can no more be considered as a dwelling house belonging to the unvided family of the plaintiffs, since, as stated earlier, one stranger purchaser, namely, Mangala Saha has been in occupation of a portion thereof and no objection was taken to her such possession. Besides, she has not been arrayed as a defendant in the present suit nor any relief has been claimed against her. Besides, she has not been arrayed as a defendant in the present suit nor any relief has been claimed against her. In the case of mathuri Sahu v. Sridhar Panda and Others, a question arose before this Court as to whether relief under Secaon 4 of the Partition Act could be claimed against the plaintiffs in the said case who entered into possession as early as 1953. The said question was answered in the negative in the following terms :"x x x The plaintiffs entered into the property as early as 1953 and had been in possession ever since then. Defendant No. 2 tolerated the plaintiffs as co-owners in possession for seventeen years prior to the suit. Such long possession and enjoyment by stranger-transferees who had become co-owners disentitles any original member of the family to exercise the right under section 4 of the Partition Act. x x x " ( 13 ) REFERENCE may be made to the recent decision of the Apex Court in the case of narasimha Mury v. Susheelabai and Others; which though is not directly on the plaint in issue, yet has some relevance. That was a case under Section 23 of the Hindu Succession Act. In the said case, one of the female heirs filed a suit for partition of the dwelling house of a hindu dying intestate, impleading her only brother, mother, sisters and a tenant as parties. The question arose whether the house would be considered as a dwelling house occupied by members of the undivided family so as to disentitle the female heir to claim partition. Their Lordships held that the house being tenanted is no more a dwelling house and therefore, prohibition contained in Section 23 for a female heir to claim partition has no application. Applying the said test to the present case. I would hold that the suit property has lost the character of dwelling house belonging to undivided family by long and uninterrupted possession of a stranger purchaser namely. Mangala Saha. ( 14 ) IN view of discussions made above. the impugned order of injunction passed against defendant No. 1 being unsustainable. is set aside. Resultantly both the appeals are allowed. In the circumstances there shall be no order as to costs. Appeal allowed.