ORDER 1. Heard on admission. 2. This petition under Article 227 of the Constitution of India is directed against order dated 1.10.2014 passed by third Additional District Judge, Chhindwara in an Appeal under Order 43 Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') : Miscellaneous Civil Appeal No.15/2014; whereby, the Appellate Court while dismissing the appeal preferred by the petitioners/plaintiffs has affirmed the order dated 19.8.2014 by Second Civil Judge Class-I, Chhindwara in Civil Suit No.5-A/2014 rejecting the application filed by the petitioner under Order 39 rule 1 and 2 of the Code. 3. At the outset learned counsel for petitioners submit that vide I.A.No.16168/2014, which is filed today, he seeks amendment in the pleadings by incorporating paragraphs 5.26 to 5.41 which is in addition to the submission already made in the memo of petition and based on the documents filed before the trial Court. 4. Learned counsel appearing for respondents has no objection if the application is treated to be allowed and the petition is heard on the basis of the pleadings and also on the basis of pleadings in the amendment application. 5. In view whereof, I.A.No.16168/2014 is allowed. 6. Petitioners are set at liberty to incorporate the amendment during course of day. 7. With consent of learned counsel for the parties, the matter is heard finally. 8. Contending inter alia that property bearing Khasra No.197 admeasuring 11 acre, including agricultural land as well as residential house, situated at village Khajri, Patwari Halka No.19, Revenue Circle Chhindwara, Tahsil and District Chhindwara having been inherited as an adopted son of late Ramanand Gupta and property having been bequeathed in his favour by his widow Smt. Leela Bai and being the owner having sold out the property to plaintiff No.2 vide registered sale deed 1.12.2012 Plaintiffs No.1 and 2 jointly filed the suit seeking declaration that the plaintiff No.2 be declared the owner of the land bearing Khasra No.197/1 admeasuring 2.072 Hectare and land bearing Khasra No.197/7 admeasuring 2.071 Hectare and for permanent injunction that defendants No.1 and 2 be prevented from interfering in any manner with the possession of plaintiff No.2 over the suit property. 9. Along with the suit plaintiffs also filed application under Order 39 rule 1 and 2 of the Code for temporary injunction. 10. On being noticed defendants denied the plaint allegations. 9. Along with the suit plaintiffs also filed application under Order 39 rule 1 and 2 of the Code for temporary injunction. 10. On being noticed defendants denied the plaint allegations. It has been denied by the defendants that the suit property was solely owned by Smt. Leela Bai, first wife of late Ramanand Gupta, to have bequeathed the suit property in favour of plaintiff No.1. It was also denied that plaintiff No.1 was adopted by Ramanand Gupta. Defendants No.1 and 2 also denied the possession of the plaintiffs No.1 and 2 over the suit property. Besides denying the claim of plaintiffs No.1 and 2 defendants have categorically stated that they have equal share in the suit property being the legal heirs of late Ramanand Gupta as defendant is born out of the second marriage of Ramanand Gupta with defendant No.1. It was stated that the suit property was equally partitioned amongst Smt.Leela Bai and Smt. Kusum Gupta-defendant No.1. And after the death of Smt. Leela Bai entire property devolved in favour of defendant No.1. 11. Both the parties filed documents extracted from the revenue records as also the affidavit in support of their respective claim. 12. The trial Court initially by order dated 16.3.2013 allowed the application for grant of temporary injunction; however, in an appeal : Miscellaneous Civil Case No.31/2013, the appellate Court by order dated 15.7.2014 reversed the order passed by the trial Court and remitted the matter for fresh consideration on the basis of the documents brought on record. 13. On the second count, the trial Court by order dated 19.8.2014 rejected the application on a finding that prima facie the plaintiffs have failed to establish that the suit property was of sole ownership of Smt. Leela Bai, wife of late Ramanand Gupta. Trial Court found that since the suit property was in the name of Ramanand Gupta, after his death it was equally devolved in his legal heirs and that the same could not have been bequeathed in favour of plaintiff No.1 vide Will dated 10.9.1994 by Smt. Leela Bai. The trial Court further found that no material evidence has been brought on record as would prima facie establish that plaintiff No.1 was adopted by Ramanand Gupta and his wife Smt. Leela Bai. 14. The trial Court further found that no material evidence has been brought on record as would prima facie establish that plaintiff No.1 was adopted by Ramanand Gupta and his wife Smt. Leela Bai. 14. Relying on the statement recorded before the Revenue Court in partition proceeding, it is stated by learned counsel for the petitioner that having admitted the fact of partition defendant No.1 cannot retract from same and both the Courts having ignored this aspect fell into patent error. 15. Learned counsel for the respondents, however, submits that order passed by Tahsildar has been set aside in an appeal whereagainst an appeal is pending before Additional Commissioner, therefore, no benefit would enure in favour of the plaintiffs as to the statement recorded before Tahsildar. It is further contended that even if there was partition amongst Smt. Leela Bai and defendant No.1, Smt. Leela Bai had no exclusive right to have bequeathed entire suit property. It is also contended that in absence of proof of adoption the share of Smt. Leela Bai devolved in defendants No.1 and 2 being the legal heir of Ramanand Gupta. There is considerable force in these submissions and both the Courts having appreciated the facts were within their judicious discretion in rejecting the application for temporary injunction. 16. As regard to Will, the trial Court found that the same having been categorically disputed by defendants and the plaintiffs are yet to establish validity thereon and couple with the fact that the plaintiff No.1 is unable to establish having inherited exclusive title over the suit property by excluding defendant No.2, the trial Court rejected the application on a finding that no prima facie case is made out. 17. In an appeal preferred by plaintiffs, the appellate Court also affirmed the order passed by the trial Court that the plaintiffs have failed to establish prima facie case in their favour. These findings have been elaborately recorded by the first appellate Court in paragraphs 9 to 17. 18. At this juncture cavil is raised on behalf of petitioners that both the Courts have faultered in recording a finding that the plaintiffs have failed to establish their possession over the suit property. To further substantiate their submission, petitioners have relied upon the statement said to have been recorded in a proceeding under section 145 of the Code of Criminal Procedure, 1973 on 26.10.2014. To further substantiate their submission, petitioners have relied upon the statement said to have been recorded in a proceeding under section 145 of the Code of Criminal Procedure, 1973 on 26.10.2014. It is stated by learned counsel for the petitioners that defendant No.1 has categorically admitted the fact of plaintiff No.2's possession over the suit property and having sown maize over the suit land. 19. It is stated by learned counsel for the petitioners that defendant No.1 has categorically admitted the fact of plaintiff No.2's possession over the suit property and having sown maize over the suit land. 19. Be it noted that both the Courts have elaborately dwelt upon the factum of possession and the appellate Court in paragraph 18 has considered the material documents brought on record and found that the plaintiffs have failed to establish possession over the suit property on a finding recorded in the following terms:- **18- fookfnr Hkwfe ij tgk¡ oknhx.k us viuk vkf/kiR; gksus dk vfHkopu fd;k gS] ogha izfroknh Ø-1 o 2 us fookfnr lEifRr ij oknhx.k dk vkf/kiR; u gksuk cfYd Lo;a dk vkf/kiR; gksus dk vfHkopu fd;k gSA bl laca/k esa oknhx.k dh vksj ls fookfnr laifÙk ij vius vkf/kiR; ds leFkZu esa oknh Øekad&1 gfjukjk;.k ds lkFk&lkFk vU; pkj O;fDr;ksa fnekxpan lw;Zoa'kh] jkenqykjs lw;Zoa'kh] lair boukrh ,oa ckykth nsojs ds 'kiFki= is'k fd;s x;s gSaA blds foijhr izfroknhx.k }kjk fookfnr lEifRr ij vius vkf/kiR; ds laca/k esa izfroknh Øekad 1 dqlqe lfgr vU; pkj O;fDrx.k vkuan xqIrk] vk'kqrks"k 'kqDyk] izdk'k xqIrk ,oa vt; dqekj ds 'kiFki= is'k fd;s gSaA oknh rFkk oknhx.k dh vksj ls izLrqr mDr pkjksa 'kiFki= esa fookfnr Hkwfe ij oknh gfjukjk;.k dk dCtk gksuk nf'kZr fd;k x;k gS] tcfd oknhx.k ds okni= esa mYysf[kr vfHkopu rFkk vkosnui= esa oknh Øekad 1 }kjk fookfnr lEifRr fnukad 1-12-2012 dks fodz; dj fn;k tkuk rFkk fookfnr lEifRr dk oknh Øekad 1 }kjk mDr foØ; fnukad ls oknh Øekad 2 dks vkf/kiR; Hkh lkSai fn;k tkus dk mYys[k gS] tcfd oknh Øekad 1 gfjukjk;.k ,oa mDr oknh lk{khx.k ds 'kiFki=ksa esa fookfnr Hkwfe ij okn izLrqfr ds le;] ;gk¡ rd fd mDr lk{khx.k }kjk 'kiFki= izLrqfr ds le; oknh Øekad 1 dk vkf/kiR; gksuk cryk;k x;k gSA bl izdkj ls oknh Øekad 1 ds 'kiFki= rFkk mlds i{k esa izLrqr pkj 'kiFki=ksa esa nh x;h lk{;] oknhx.k ds vfHkopu ls loZFkk fHkUu gksus ds dkj.k fookfnr Hkwfe ij oknhx.k ds vkf/kiR; ds leFkZu esa xzkg~; ugha ekuh tk ldrhA vr% vkf/kiR; ds laca/k esa oknhx.k dh vksj ls 'kiFki=h; lk{; ds vk/kkj ij oknhx.k ds vfHkopuksa ls fHkUu lk{; gksus ds dkj.k fookfnr Hkwfe ij mDr 'kiFki= ekU; ugha fd;k tk ldrkA blds foijhr izfroknhx.k lfgr mlds i{k esa izLrqr pkj 'kiFki= esa izfroknh Øekad 1 dk vkf/kiR; gksuk cryk;k x;k gSA vr% vkf/kiR; ds laca/k esa mHk;i{k dh vksj ls izLrqr 'kiFki=h; lk{; ds vk/kkj ij fookfnr Hkwfe ij oknhx.k dk vkf/kiR; izFken`"V~;k izekf.kr ugha ik;k tkrk cfYd fookfnr Hkwfe ij izfroknh Øekad 1 o 2 dk vkf/kiR; gksuk izdV gksrk gSA** 20. Thus, though true it may be that the plaintiffs had been shown to have sown maize crop, however, that will not be sufficient to conclude that the plaintiffs are in possession over the suit property as no material evidence has been commended at to establish that after 1.12.2012 plaintiff No.2 was placed in physical possession over the suit property which is an agricultural land. Since prima facie it is borne out from the record that defendant No.2 also have a claim over the suit property being progeny of late Ramanand Gupta, the possession of the defendants over the suit property cannot be ruled out. 21. Trite it is that while exercising the discretion for grant of an interim injunction during pendency of a suit following three tests are applied, viz.(i) whether plaintiffs has a prima facie case (ii) whether balance of convenience is in favour of the plaintiffs and (iii) whether the plaintiffs would suffer an irreparable injury if temporary injunction is declined. These parameters are to achieve the object to protect the plaintiffs from an injury which cannot be compensated adequately. Thus, unless party establishes a prima facie case, temporary injunction cannot be granted. 22. In the case at hand, since the plaintiffs have failed to establish a prima facie case, impugned order cannot be interfered with. 23. Consequently, petition fails and is dismissed. No costs.