JUDGMENT Hon’ble 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 alongwith all the relevant documents as annexures there to 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. Alongwith the Suit the plaintiff respondent filed an application under Order 39 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. Rukmani 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. Sri Shesh Kumar has submitted that Smt. Rukmani 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 Sections 145/146 C.R.P.C. was initiated and the Order under 146 C.R.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 illegally. 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 order to state that the petitioners have stepped into shoes of Smt. Rukmani Devi who died in the year 1993 and hence the impugned order granting an injunction against the petitioners is against the law. 7. He draws strength from the said interim order to state that the petitioners have stepped into shoes of Smt. Rukmani Devi who died in the year 1993 and hence the impugned order granting an injunction against the petitioners is against the law. 7. In so far as the aforesaid two submissions of Sri Shesh Kumar are concerned it will be seen that the petitioners claim possession after execution of the sale deed in the year 1997 in their favour. The sale deed was executed by Smt. Kamini Kanchan who alleged to have got the property by virtue of a will from Smt. Rukmani Devi. Smt. Rukmani Devi admittedly died in the year 1993. It is also not denied that partition proceedings had started and by virtue of the pendency of Writ Petition No. 12945 of 1993 the same have not been finalized as yet and hence no final decree has been prepared in the partition proceedings. 8. The contention of the petitioner that he having come in possession after execution of the sale deed cannot be injuncted by the impugned order, prima facie requires to be tested at this stage on the material available on record. It is settled law that in the absence of partition the property belongs to the co-owners jointly. Under such circumstances an outsider who purchased an un-partitioned share in the property is not entitled to take forcible possession under law. He acquires a right for seeking partition. However such right acquired by the sale deed by an outsider does not out weigh the valuable right of the co-owners who are in joint possession of every inch of the property to remain in possession unless partition takes effect. A co-owner cannot be forced out from his possession of the property by a subsequent purchaser unless the purchaser gets the property partitioned by meets and bounds and gets his share duly identified through the process of law. 9. The outsider has to come in lawful possession hence a possession obtained by an outsider forcibly either through proceedings under Sections 145/146 C.R.P.C. or by other illegal means would not give him sanction to say that he is in lawful possession. Such possession is not recognized in law. 10. Sri Shesh Kumar has not been able to deny the fact that the proceedings for partition between the co-owners is incomplete and still pending. Such possession is not recognized in law. 10. Sri Shesh Kumar has not been able to deny the fact that the proceedings for partition between the co-owners is incomplete and still pending. He has also submitted that after purchasing the property in the year 1997 the petitioners have been impleaded as parties in the Writ Petition No. 12945 of 1993 sometime in the year 2008. That writ petition arises out of proceedings for partition. Consequently even when there is an interim order operative in the writ petition protecting the rights of Smt. Rukmani Devi from being dispossessed the petitioner cannot seek protection of the said interim order to come into forcible physical possession without partition. 11. The first appellate Court has recorded a finding on the prima facie case to state that in so far as the defendant petitioner is concerned he has not been able to bring on record any document to show that Smt. Kamini Kanchan was owner of the property in question by virtue of a will. Sri Shesh Kumar on the aforesaid finding has rightly submitted that in so far as the grant of temporary injunction is concerned the weakness in the case of the defendant would not be a ground to grant a temporary injunction to the plaintiff. In the present case it was not the weakness in the case of the defendant that led to grant of temporary injunction by the first appellate Court. The reason for grant of temporary injunction by the first appellate Court was that the property was still unpartitioned. There was an interim order in the 1993 writ petition already operating. In 1993 when Smt. Rukmani Devi died the petitioners were not in the picture. There was no material on record to indicate that even Smt. Rukmani Devi was owner of a particular part of the land in question or that she had any right to a particular portion. 12. The possession of the defendant petitioner was found in proceedings under Sections 145/146, Cr.P.C. For the purpose of grant of injunction possession is to be seen by the Courts. When the possession of the petitioner was clearly unlawful illegal and unauthorized he was not entitled to be given the benefit of remaining thereupon particularly when he was an outsider interfering in the valuable rights of the co-owners of the property in question. When the possession of the petitioner was clearly unlawful illegal and unauthorized he was not entitled to be given the benefit of remaining thereupon particularly when he was an outsider interfering in the valuable rights of the co-owners of the property in question. While considering an application for grant of temporary injunction the three ingredients are to be considered. The first ingredient of a prima facie case is not alone sufficient to grant temporary injunction. The second ingredient of balance of convenience has also to be considered. In the present case the petitioners have taken forcible physical possession from the members of the family of his vendor. When there was admittedly no partition the petitioners have in effect dispossessed the owners who enjoyed a legal right to remain in possession as co-owners. Clearly the balance of convenience was in favour of the plaintiff respondents. The third ingredient of irreparable loss cannot be lost sight of. An outsider who purchases a share of joint unpartitioned property has only a right to seek partition from the co-owners of his vendor. His right to possession is only exercisable upon partition and not otherwise. He cannot force his way into the property by dispossessing the original owner who has not alienated his share. It is a valuable right enjoyed and conferred on the co-owner of an unpartitioned joint property. The act of dispossessing him curtails his right thereby causing loss to him. It would be an irreparable loss in the event the dispossessed co-owner were ultimately allotted the very portion in the final partition from which he has been forcibly dispossessed. On the other hand the outsider purchaser being entitled to seek partition cannot be held to suffer irreparable loss since he purchased the share in undivided/unpartitioned property with open eyes. He was never entitled in law to obtain possession of unpartitioned property unless it was partitioned or otherwise with the consent of the other co-owners of his vendor. 13. The aforesaid view is supported by decision of the Supreme Court in Hardeo Rai v Sakuntala Devi and others, 2008 (7) SCC 46 . Paragraph 26 of the judgement is quoted here under : “Thus, even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition.” 14. Paragraph 26 of the judgement is quoted here under : “Thus, even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition.” 14. In the case of Ram Pat and others v. State of Haryana, (2009) 7 SCC 614 , the Supreme Court has clearly held that when a specific portion of the property is not purchased and the purchase is of an undivided share the purchaser does not acquire the right to obtain possession of the land. He merely acquires a right to sue for possession. Para 24 of the judgment is quoted here under:- “The accused admittedly did not purchase any specific portion of the property. They purchased undivided share. By reason thereof, in law, they did not acquire any right to obtain possession of the lands. Harda Ram and his family being the co-sharers did not give any consent for handing over their possession in their favour. In law, therefore, the accused persons being purchasers of an undivided share merely acquired a right to sue for partition. In M.V.S. Manikayala Rao v. M. Narasimhaswami, this Court held (AIR p. 473, para 5) “5...... Now, it is well settled that the purchaser of a coparcener’s undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased.” (See also Hardeo Rai v. Sakuntala Devi) 15. Under such circumstances the Trial Court without considering the injunction sought by the plaintiff respondent and the facts with respect to the nature of the land in question had refused to grant temporary injunction to the plaintiff respondent. The appellate Court has considered such ground and has given reason for disagreeing with the Trial Court and has more particularly stated in paragraph 33 of the judgment. The appellate Court has considered such ground and has given reason for disagreeing with the Trial Court and has more particularly stated in paragraph 33 of the judgment. Paragraph 33 of the judgment is quoted here under : ^^33- eSaus mDr m)r fu.kZ;t fof/k;ksa dk ifj’khyu fd;kA orZeku izdj.k esa izfroknhx.k u rks jktLo vfHkys[kksa esa vafdr [kkrsnkj gS vkSj u gh v/;klu ds lanHkZ esa mudh lk{; gSA ftu Jherh dkfeuh dapu }kjk fodz;&foys[k o"kZ 1997 esa fu"ikfnr djuk dgk x;k gS mudk Jherh :deuh nsoh ls dksbZ lEcU/k LFkkfir ugha gksrkA rrh;r% Jherh :deuh nsoh us vk/kk va’k gh pkgk Fkk vkSj ;fn rdZ ds rkSj ij ;g Hkh ekuk tk; fd vk/kk va’k mUgksaus vUrfjr dj fn;k rks dksbZ Hkh lg [kkrsnkj fcuk eki ;k lhekadu djkds caVokjs ds fcuk v/;klu esa ugha vk ldrkA Jherh :deuh nsoh dh e`R;q o"kZ 1993 esa gh gks x;h vkSj o"kZ 1993 ls o"kZ 1998 ds e/; oknhx.k ds vè;klu esa gLr{ksi djus dh fLFkfr vfHkys[k ij miyC/k lk{; ls ugha gSA tc Jherh dkfeuh dapu ftUgsa fodz;&foys[k fu"ikfnr djus dh dksbZ vf/kdkfjrk izdV ugha dh x;h gS] us fodz;&foys[k fu"ikfnr fd;k rHkh ls oknhx.k ds oknxLr lEifRr ds mi;ksx] v/;klu esa gLrk{ksi djus dh fLFkfr mRiUu gqbZA ftlds lanHkZ esa /kkjk&145 na0izola0 dh dk;Zokgh gqbZ tks vUrr% ekuuh; mPp U;k;ky; rd igqWaph vkSj ekuuh; mPp U;k;ky; us fnukad 19-04-93 dks ;gh vkns’k ikfjr fd;k fd ijxukf/kdkjh ds vkns’k ds vuqdze esa foHkktu dh vafre fMdzh ij gLrk{kj ugha gksxsa vkSj Jherh :deuh nsoh dks csn[ky ugha fd;k tk;sxkA ;g vkns’k Jherh :deuh nsoh ds i{k esa gS vkSj Jherh :deuh nsoh dh e`R;q ds mijkUr oknhx.k gh uSlfxZd mRrjkf/kdkjh izdV gksrs gSA bu ifjfLFkfr;ksa esa izfroknh la[;k&1 o 2@izR;FkhZ la[;k&1 o 2 dh vksj ls m)r mDr fu.kZ;t fof/k;ksa muds fy, lgk;d ugha gSA** 16. The above quoted paragraph clearly indicates the view taken by the first appellate Court for grant of injunction. No error can be found in the same. 17. There is another reason which requires to be considered at this stage of the proceedings. Admittedly Smt. Rukmani Devi died in 1993. Admittedly the petitioners obtained sale deed on 9.7.1997 from Smt. Kamini Kanchan who claimed to be owner by virtue of will executed by Smt. Rukmani Devi. No error can be found in the same. 17. There is another reason which requires to be considered at this stage of the proceedings. Admittedly Smt. Rukmani Devi died in 1993. Admittedly the petitioners obtained sale deed on 9.7.1997 from Smt. Kamini Kanchan who claimed to be owner by virtue of will executed by Smt. Rukmani Devi. Consequently it cannot be said that the petitioners were co-owners of the land in question at any date prior to the sale deed of 1997. The proceedings under Sections 145/146 C.R.P.C. started after the petitioners obtained the sale deed. When the petitioners could not come into lawful possession their illegal forcible physical possession on the plot in question cannot be considered to be lawful and if the possession is not lawful such illegal and unlawful possession can be taken into account while considering an application under Order 39, Rules 1 and 2 C.P.C which requires consideration of all the three ingredients. Therefore although the proposition of law submitted by Sri Shesh Kumar is not disputed and is correct but in the facts and circumstances of the present case the plaintiff respondents had made out a case for grant of temporary injunction having established a prima facie case. The balance of convenience was also in their favour and they were to suffer irreparable loss in case the injunction was not granted. The defendant petitioners at the most could make out a prima facie case on the basis of the alleged sale deed but even that would be to seek partition first. The balance of convenience was clearly not in their favour they being outsider to the family and purchasers with open eyes of a share in an unpartitioned property. No case is made out to show that the defendant petitioners would suffer any loss much less irreparable loss by the grant of injunction to the plaintiff respondents. 18. For the aforesaid reasons there is no error in the impugned order. The writ petition has no merit. It is accordingly dismissed. 19. It is made clear that any observation made in this order would not effect the decision of the suit pending in the Trial Court on the merits of the claim made by the parties. 20. No order is passed as to costs. ————