JUDGMENT - S.D. GUNDEWAR, J.:---Heard finally at the stage of admission by the consent of the parties. 2. This appeal is directed against the order dated 23-3-2001 passed by the learned Joint Civil Judge, Senior Division, Chandrapur below an application for temporary injunction (Exhibit 5) in Special Civil Suit No. 3/2001, whereby the learned trial Judge granted temporary injunction restraining the appellant/defendant No. 2 from raising any construction either personally or through agents or servants on land admeasuring 0.40 hectare out of Khasra No. 69/1 (old 46) situated at village Wadgaon, Tq. District Chandrapur (hereinafter referred to as "the suit land") till the disposal of the aforesaid suit. 3. The respondent No. 1/plaintiff filed a Special Civil Suit No. 3/2001 against the respondent No. 2 and the appellant/original defendants Nos. 1 2 for seeking relief of declaration that the sale deed executed by defendant No. 1 in favour of defendant No. 2 on 15-5-1999 in respect of suit land is null and void and also for permanent injunction restraining the defendant No. 2 from changing the nature of the suit land. The plaintiff also filed an application for temporary injunction along with the suit. 4. The case of the respondent No. 1/plaintiff, in brief, is that the plaintiff and the defendant No. 1 are the real brothers. Plaintiff, defendant No. 1 and their deceased mother Chandrabai were the partners of a registered firm, named and styled as M/s. R.N. Pattiwar, each having 1/3rd share in the business of the said firm as per the terms of the partnership deed registered on 10-11-1969. Besides 1/3rd share in the aforesaid partnership business, the defendant No. 1 had no other source of income. The partnership firm has acquired some properties in the name of defendant No. 1 from the funds of said firm. The suit land is one of the properties which was purchased from the funds of the partnership firm in the name of defendant No. 1. Besides the suit land, the land bearing Survey No. 120/9 admeasuring 0.50 decimal of village Dewai Govindpur Tukum was also purchased from the nucleus of the partnership firm in the name of defendant No. 1 which was later on offered by way of security as per the directions of this Hon'ble Court in Appeal against Order No. 11/97. Besides the suit land, the land bearing Survey No. 120/9 admeasuring 0.50 decimal of village Dewai Govindpur Tukum was also purchased from the nucleus of the partnership firm in the name of defendant No. 1 which was later on offered by way of security as per the directions of this Hon'ble Court in Appeal against Order No. 11/97. The suit land being the property of the aforesaid partnership firm, the defendant No. 1 has only one/third share in it. Inspite of that, he agreed to sell the entire suit land to defendant No. 2. The plaintiff learnt about the same from the public notice dated 29-4-1999 issued in daily 'Mahavidarbha'. Soon thereafter the plaintiff also issued a public notice in daily 'Mahavidarbha' on 5-5-1999 to the effect that the suit land belongs to the partnership firm in question and defendant No. 1 alone has no right to alienate it. However, the defendant No. 1 was bent upon to sell the suit land to defendant No. 2 and defendant No. 2 was prepared to purchase it and, therefore, the plaintiff was constrained to file a suit bearing Regular Civil Suit No. 101/99 against the defendants Nos. 1 2 for permanent injunction restraining the defendant No. 1 from alienating the suit land to defendant No. 2. A notice of the said suit was served upon the defendants Nos. 1 2 and immediately thereafter, i.e. on 15-5-1999 the defendant No. 1 had executed registered sale deed in respect of the suit land in favour of defendant No. 2 and, therefore, the plaintiff was forced to file the present suit for declaration that the sale deed executed by defendant No. 1 in favour of defendant No. 2 is null and void and also for permanent injunction restraining the defendant No. 2 from raising any construction over the suit land or changing its nature. 5. The plaintiff has also filed an application under Order 39, Rules 1 2 read with section 151 of Civil Procedure Code for temporary injunction against the defendants along with the suit. 6. The defendant No. 1 did not file his reply though he was served. The defendant No. 2, however, vide his reply inter alia contended that the partnership firm under the name and style as M/s. R.N. Pattiwar is not the owner of the suit land. 6. The defendant No. 1 did not file his reply though he was served. The defendant No. 2, however, vide his reply inter alia contended that the partnership firm under the name and style as M/s. R.N. Pattiwar is not the owner of the suit land. The suit land was the self acquired property of defendant No. 1 and the plaintiff having no legal right, title or interest in respect of suit land, the suit filed by him is not tenable in the eye of law. It is denied by him that the suit land was purchased from the funds of the partnership firm in question. It is also denied by him that the plaintiff or his mother has any share in the suit land. According to the defendant No. 2, the plaintiff has published a false explanation in daily 'Mahavidarbha' on 5-5-1999. It is contended by the defendant No. 2 that after he agreed to purchase the suit land from the defendant No. 1, a public notice was published in daily 'Mahavidarbha' on 29-4-1999 calling objections with documentary evidence but inspite of that the plaintiff had not submitted any documentary evidence to show that the suit land belongs to the partnership firm in question. According to him, it is the defendant No. 1, who had purchased the suit land from one Girdharbhai Devji Popat on 5-11-1973 under the registered sale deed, on the basis of which his name came to be mutated in the revenue record and only after verifying all the documents pertaining to the ownership of the suit land, the defendant No. 2 has purchased the same from its legal owner, i.e. defendant No. 1 for a consideration of Rs. 4,25,000/- under registered sale deed on 15-5-1999 and, therefore, he being the bona fide purchaser for value has become the legal owner of the suit land and, therefore, the temporary injunction as sought by the plaintiff cannot be issued against him. 7. 4,25,000/- under registered sale deed on 15-5-1999 and, therefore, he being the bona fide purchaser for value has become the legal owner of the suit land and, therefore, the temporary injunction as sought by the plaintiff cannot be issued against him. 7. The learned trial Court vide impugned order dated 23-3-2001 granted temporary injunction restraining the defendant No. 2 from making any construction either personally or through agents or servants over the suit land till the disposal of the suit on the ground that in Special Civil Suit No. 50/97 filed by defendant No. 1 for the dissolution of partnership firm M/s. R.N. Pattiwar, he filed certain documents which clearly go to show that the said firm owned some property including land bearing Survey No. 120/9 of village Dewai Govindpur Tukum which was purchased in his name from the funds of the said partnership firm and, therefore, though the suit land was purchased by the defendant No. 1 in his name, he cannot be said to be the exclusive owner of the same in view of the averments made by the plaintiff that the said land was purchased from the nucleus of partnership firm in question. 8. Heard Shri S.V. Manohar, the learned Counsel for the appellant, Shri Anjan De, the learned Counsel for the respondent No. 1 and Shri S.V. Sirpurkar, the learned Counsel for the respondent No. 2 at length. 9. While assailing the impugned order, at the outset, Shri S.V. Manohar, learned Counsel for the appellant, vehemently urged before me that there is no triable issue in this case since the suit filed by the respondent No. 1 is not maintainable in view of section 4(1) of the Benami Transactions (Prohibition) Act, 1988, (hereinafter referred to as "the Act"). 10. The question whether a particular sale is benami or not is largely one of fact. Though there is no formula or acid test uniformly applicable, it is well-nigh that the question depends predominantly upon the intention of the person who paid the purchase money. It is no doubt true that for this, the burden of proof is on the person who asserts that it is a benami transaction. 11. Though there is no formula or acid test uniformly applicable, it is well-nigh that the question depends predominantly upon the intention of the person who paid the purchase money. It is no doubt true that for this, the burden of proof is on the person who asserts that it is a benami transaction. 11. Benami transaction is defined in section 2(a) of the Act as "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person; while section 3(1) of the Act provides that "no person shall enter into any benami transaction". 12. Admittedly, except sections 3, 5 8 other sections of the Act including section 4 came into force on 19-5-1988. Section 4 provides as under :-- "Section 4. Prohibition of the right to recover property held benami.--- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,--- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family ; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 13. In the case in hand, it is averred by the plaintiff that though defendant No. 1 was shown in the sale deed dated 25-7-1973 as vendee, the real owner of the suit land is the partnership firm M/s. R.N. Pattiwar. In the case in hand, it is averred by the plaintiff that though defendant No. 1 was shown in the sale deed dated 25-7-1973 as vendee, the real owner of the suit land is the partnership firm M/s. R.N. Pattiwar. Admittedly, the defendant No. 1 is one of the partners of the said firm and not stranger and, therefore, atleast at this stage when we have to consider only prima facie case, in my opinion, it would not be proper to term the transaction in question as 'benami transaction' as I have already observed above that the question whether a particular sale is benami or not is largely one of fact and, therefore, in my opinion, it would be appropriately if the nature of the transaction in question is decided only after the entire evidence in the matter is adduced. In view of this, I find much force in the submission made by Shri Anjan De, the learned Counsel for the respondent No. 1/plaintiff, that the defendant No. 1 being one of the partners of the firm, the transaction in question cannot be said to be 'benami transaction' and the nature of the same can be decided only after the entire evidence is adduced. The contention of the learned Counsel for the appellant in this regard, therefore, cannot be accepted at this stage. In view of this, the decision in (Mahadeo Savlaram Shelke others v. Pune Municipal Corporation another)1, reported in 1995(3) Bom.C.R. (S.C.)441 and in (R. Rajagopal Reddy (dead) by L.Rs. and others v. Padmini Chandrasekharan (dead) by L.Rs.)2, reported in A.I.R. 1996 S.C. 238 cited on behalf of the appellant and in (Pawan Kumar Gupta v. Rochiram Nagdeo)3, reported in A.I.R. 1999 S.C. 1823 cited on behalf of the respondent No. 1 require no consideration at this stage. 14. It is well settled that the grant or refusal of a temporary injunction is covered by three well established principles, viz. (i) whether the plaintiff has made out a prima facie case; (ii) whether the balance of convenience is in his favour and (iii) whether the plaintiff would suffer an irreparable injury. With the first condition a sine-qua-non the plaintiff is to prove two conditions conjunctively. Mere proof of one of three conditions does not entitle a plaintiff to an order of temporary injunction. With the first condition a sine-qua-non the plaintiff is to prove two conditions conjunctively. Mere proof of one of three conditions does not entitle a plaintiff to an order of temporary injunction. Total failure of the plaintiff to make out the prima facie entails dismissal of application for temporary injunction. 15. Bearing in mind the aforesaid principles of law, it is to be seen as to whether in the present case the plaintiff has proved the aforesaid principles for the grant of temporary injunction as sought. In the case in hand, the sale deed dated 25-7-1973 goes to show that the suit land was purchased by the defendant No. 1 from on Girdharbhai Devji Popat for a consideration of Rs. 5000/- and the possession of the same was delivered by the vendor to the defendant No. 1 on the same day. This document does not show that the suit land was purchased from the funds of partnership firm. So prima facie it appears that the suit land belonged to defendant No. 1. The defendant No. 1 in his turn sold the suit land to defendant No. 2 on 15-5-1999 for a consideration of Rs. 4,25,000/- under registered sale deed. According to the defendant No. 2, after he agreed to purchase the suit land from defendant No. 1, he has issued a public notice on 29-4-1999 in daily 'Mahavidarbha' calling objections from the persons who had any right or interest in the said land. According to him, though the plaintiff had raised an objection that the suit land belonged to the partnership firm, he had not shown any document in support of his objection and, therefore, after verifying the title of defendant No. 1 in respect of the suit land from the sale deed dated 25-7-1973 and the revenue record he purchased the same from him under registered sale deed on 15-5-1999 for a consideration of Rs. 4,25,000/- and as such, he is the bona fide purchaser for value of the suit land. It is further contended by defendant No. 2 that he is the Managing Director of 'Bhaiji Infine Private Limited, Chandrapur'. After purchasing the suit land, the defendant No. 2 got converted it for non-agricultural use as he intends to construct a building over it for showroom and workshop of Maruti Udyog Limited dealership of Bhaiji Infine Private Limited, Chandrapur. It is further contended by defendant No. 2 that he is the Managing Director of 'Bhaiji Infine Private Limited, Chandrapur'. After purchasing the suit land, the defendant No. 2 got converted it for non-agricultural use as he intends to construct a building over it for showroom and workshop of Maruti Udyog Limited dealership of Bhaiji Infine Private Limited, Chandrapur. According to him Maruti Udyog Limited, New Delhi had accepted the bid of defendant No. 2 regarding the dealership of Maruti Udyog Ltd. at Chandrapur and if he is now restrained from raising any construction over the suit land, he would suffer irreparable loss. 16. It is no doubt true that the plaintiff has averred that the suit land was purchased from the funds of the partnership firm in the name of defendant No. 1 and, therefore, defendant No. 1 alone is not the owner of it. However, besides the affidavit of the plaintiff there is no other convincing evidence on record at this stage to show that the suit land was in fact purchased from the nucleus of the partnership firm. In this behalf, it is contended by Shri Anjan De, the learned Counsel for the respondent No. 1/plaintiff that the defendant No. 1 himself has filed Special Civil Suit No. 50/97 for dissolution of partnership firm M/s. R.N. Pattiwar, wherein it is averred by him that he, plaintiff and their deceased mother Chandrabai were the partners of the firm M/s. R.N. Pattiwar, which is a reputed firm carrying on extensive civil construction work and earned sumptuous income between 1965 and 1990, which clearly indicates that the firm had sufficient funds and the suit land was purchased out of the income of the firm. I am afraid, the aforesaid averment made by the defendant No. 1 in Special Civil Suit No. 50/97 would help the plaintiff in any way in establishing the fact that the suit land is the property of the firm. Simply because the defendant No. 1 had averred in the aforesaid suit filed by him that the firm had sufficient funds at the time when the suit land was purchased would not mean that the suit land was purchased out of the nucleus of the firm. Simply because the defendant No. 1 had averred in the aforesaid suit filed by him that the firm had sufficient funds at the time when the suit land was purchased would not mean that the suit land was purchased out of the nucleus of the firm. The plaintiff ought to have adduced cogent, convincing and satisfactory evidence in this regard such as extract of account books, affidavit of the attesting witnesses of the sale deed dated 25-7-1973, etc. but he has not done so and, therefore, in the absence of such evidence it cannot be said that the plaintiff has made out a prima facie case for the issue of temporary injunction. 17. Nextly, it is contended by Shri Anjan De, the learned Counsel for the respondent No. 1, that soon after the plaintiff learnt about the agreement of sale executed by the defendant No. 1 in favour of defendant No. 2 from the public note issued on 29-4-1999 in daily 'Mahavidarbha', he raised objection for the said sale by publishing a notice in daily 'Mahavidarbha' on 5-5-1999 and filed the Regular Civil Suit No. 101/99 on 14-5-1999 for declaration and permanent injunction and immediately after the service of summons of the said suit on defendant Nos. 1 2, the defendant No. 2 got executed sale- deed in respect of the suit land from defendant No. 1 and, therefore, the plaintiff was constrained to file the present suit restraining the defendant No. 2 from changing the nature of the suit land or raising any construction over it, wherein the temporary injunction in question has been issued. According to Shri Anjan De, the learned Counsel for the respondent No. 1, the appellant was well aware of the aforesaid facts and the litigation that is going on between the plaintiff and the defendant No. 1 in respect of the property of the partnership firm M/s. R.N. Pattiwar including the suit land but inspite of that he has purchased it and, therefore, the appellant cannot be said to be a bona fide purchaser for value without notice and that the transaction in question is hit by the provisions of section 52 of the Transfer of Property Act and, therefore, the appellant's possession over the suit land cannot be said to be juridical. Now, even assuming for the sake of argument that the defendant No. 2 purchased the suit land from defendant No. 1 knowing full well of the litigation that is going on between the plaintiff and defendant No. 2 in respect of suit land, then also the question arises as to whether there is any evidence to show that the suit land was purchased from the funds of the partnership firm in question. As I have observed above that the plaintiff failed to adduce any satisfactory evidence to show that the suit land has been purchased from the nucleus of the partnership firm, at least at this stage it cannot be said that the plaintiff is entitled for temporary injunction as sought. 18. Lastly, it is contended by Shri Anjan De, the learned Counsel for the respondent No. 1, that admittedly another property i.e. land bearing Survey No. 120/9 of village Dewai Govindapur Tukum was purchased by the firm in the name of defendant No. 1 which was subsequently offered as security to the State of Maharashtra as per the order of this Court which fact clearly indicates that even earlier the firm had purchased the property in the name of defendant No. 1 from the funds of the partnership firm and, therefore, according to Shri De, this fact, prima facie, supports the plaintiff's case that the suit land was purchased from the funds of the partnership firm. Here, I would like to mention that so far as the land Survey No. 120/9 is concerned, it seems that the defendant No. 1 himself admitted that it was purchased from the funds of the partnership firm. However, in respect of the suit land, the defendant No. 1 has in very clear terms denied that it was purchased out of the nucleus of the partnership firm and, therefore, it was for the plaintiff to prove that it was purchased from the funds of the partnership firm but as he, prima facie, failed to prove the same, the aforesaid submission made on behalf of the respondent No. 1 cannot be accepted at this stage. 19. Now, from the contentions raised by defendant No. 2/appellant, prima facie, it appears that he is a bona fide purchaser for value of the suit land. 19. Now, from the contentions raised by defendant No. 2/appellant, prima facie, it appears that he is a bona fide purchaser for value of the suit land. Not only that, but he has given an undertaking before this Court to the effect that if this Court permits him to raise construction on the suit land, he would not claim any equity if the case is finally decided against him and that he would restore the suit land in its original form. Shri Anjan De, the learned Counsel for the respondent No. 1, opposed for the same on the ground that the appellant having knowledge of the litigation between the plaintiff and defendant No. 1 in respect of the suit land has purchased it and, therefore, he cannot be said to be a bona fide purchaser and hence, needs to be restrained by temporary injunction. For this, he placed reliance on a decision in (Bina Murlidhar Hemdev and others v. Kanhaiyalal Lokram Hemdev and others)4, reported in 2000(2) Bom.C.R. (S.C.)279. In the said case, the Apex Court observed in paragraphs Nos. 38, 46 49 as belows :--- "38. We, therefore, hold that there is a prima facie case of title to immovable property made out by Lokram Group. We also hold that prima facie the release deed dated 27-3-79 is a forged document. As stated earlier, a deed of March 1979 it could not have been referred to a suit of November, 1979. That would mean that the heirs of Murlidhar, the plaintiff continue, prima facie to have a share in the plots 8 to 12 and other common property." "46. Then there is the argument that as per Clause 10 of sub-partnership deed dated 29-7-1964 between the Jains and the Sankhalas, Sri Rajendra Kumar Jain was entitled to deal with the 17% share of Lokrams or their equivalent in terms of right in plots 8 to 12 of the Lokrams. The said Clause 10 reads as follows :--- "Clause 10 : The said Rajendra Kumar Jain shall manage the affairs of the partnership and whatever he does shall be binding on the partners." Under section 19(1) of the Partnership Act, the acts of a partner which are done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. Under section 19(2), in the absence of any usage or custom of trade to the contrary, the above implied authority-(here express authority under Clause 10 of the same nature)- does not prima facie empower the partners to "transfer immovable property belonging to the firm" as stated in Clause (g) of section 19(1) of the Partnership Act. Such a power to transfer property of the firm must be expressly given to the transferring partner so far as immovable property is concerned there is no such authority shown. Clause 10 does not contain any express power to Shri R.K. Jain to transfer the immovable property of the firm. Hence the said clause is of no use, prima facie." "49. It is true that normally a plaintiff who stands by when another is making construction on his property could not seek injunction to stop construction. But, the manner in which Kanhaiyalal Lokram set up a release deed which is prima facie false the manner in which the Builder and Jains raised contentions regarding alleged interpolation of a registered rectification deed-which plea we have held to be prima facie untenable-we are of the view that after Murlidhar's death in 1976, the confidence which his widow and children had in Kanhaiyalal was prima facie abused by setting up a false release deed. Then the Builder and the Jains together started denying the prima facie just rights of Murlidhar's widow and children in the property. We are, therefore, not inclined to deny a temporary injunction to the plaintiffs notwithstanding the investment made by the Builder. The Builder had never shown any anxiety before us to come to terms and avoid an injunction by offering certain terms to plaintiffs." 20. From the above observations made by the Apex Court, it is clear that the facts of the said case were quite different from the facts of the case in hand and, therefore, the ratio laid down by the Supreme Court in the said case, in my opinion, is not applicable to the facts of present case. From the above observations made by the Apex Court, it is clear that the facts of the said case were quite different from the facts of the case in hand and, therefore, the ratio laid down by the Supreme Court in the said case, in my opinion, is not applicable to the facts of present case. Similarly, in another case in (Gangubai Babiya Chaudhary others v. Sitaram Bhalchandra Sukhtankar others)5, reported in A.I.R. 1983 S.C. 742 cited on behalf of respondent No. 1, the plaintiff and defendant both were found to be in possession of about half portion of the disputed land and, therefore, the Apex Court held that in case the injunction is not granted, situation might become irreversible. However, in the case in hand, it is not so. Here, admittedly the possession of the suit land is with the appellant and, therefore, in my opinion, the ratio laid down in the said case is also not applicable to the facts of the present case. It is true that the appellant had not given such an undertaking before the lower Court. However, prima facie, there being no satisfactory evidence led by the plaintiff that the suit land was purchased out of the nucleus of the partnership firm, in my opinion, the plaintiff has neither made out a prima facie case nor shown that the balance of convenience tilts in his favour. In view of this, in my opinion, the learned trial Judge committed serious error in granting temporary injunction against the defendant No. 2 and, therefore, the impugned order passed by the trial Court needs to be quashed and set aside. Considering the aforesaid undertaking given by the appellant, in my opinion, no irreparable loss would be caused to the plaintiff in case temporary injunction granted by the lower Court is vacated. 21. In the result, the appeal succeeds and the same is allowed and the impugned order dated 23-3-2001 is hereby set aside. However, there shall be no order as to costs. Appeal allowed. -----