JUDGMENT Anil Kumar, J. – Heard Sri. S.K. Kalia, Senior Advocate assisted by Sri. Daya Shankar Tripathi, learned counsel for appellant, Sri. R.N. Gupta, learned Senior Counsel assisted by Sri. Pritish Kuamr for respondent No. 1 Sri. Abhinav Singh learned Counsel holding brief of Sri. Gaurav Mehrotra for respondent No. 2 and Sri. Anil Kumar Tiwari, learned Senior Counsel assisted by Sri. Prakhar Misrha, for the respondent Nos. 4 & 5. 2. By means of the present appeal, the appellant/defendant has challenge the order dated 26.08.2015 passed in Regular Suit No. 342 of 2015 (Dr. Susheel Suri v. Harish Suri & Ors.) by Civil Judge (Sr. Div.), Lucknow. 3. Facts in brief of the present case are that Sri. Govind Ram Suri (now deceased) was the owner of the properties, details of which is given herein below: - A. Land measuring 11032 Sqft. of Khasra Plot No. 146 and 147 situated at Village Gazipur Saidul Nisha Pargana Tehsil and District Lucknow presently known as Indira Nagar, Lucknow B. Khasra Plot No. 11/CP-1 situated at Sector-11 Vikas Nagar, Lucknow comprising area 1938.96 Sqmtr or 21000.00 sqft. C. Property situated at 4A-Faizabad Road, behind Central Bank of India, Lucknow. 4. Out of the wedlock of Sri. Govind Ram Suri and appellant Smt. Sushila Suri, they were blessed with five children, two sons and three daughters, details of whom are as under: - 1. Smt. Pravesh Kumari 2. Smt. Praveen Bhasin 3. Smt. Pramod Bahari 4. Sri. Harish Suri 5. Dr. Susheel Suri 5. On 11.06.2004, Sri. Govind Ram Suri had executed a will in respect to the properties in question in favour of his wife Smt. Sushila Suri and on 24.10.2011 he died. 6. In the year 2012, Smt. Sushila Suri filed a suit for declaration registered as Regular Suit No. 223 of 2012 (Smt. Sushila Suri v. Gaurav Suri) in the Court of Civil Judge, Lucknow. In the said suit, the children of late Govind Ram Suri were not made party by her on the ground that she is being absolute owner and in possession of estate left behind by her husband late Sri. Govind Ram Suri. 7. On behalf of Dr. Susheel Suri, an application for impleadment was moved and when the same was pending for consideration on 06.08.2012, the said suit was dismissed for want of prosecution. 8. On 18.10.2012, Dr. Govind Ram Suri. 7. On behalf of Dr. Susheel Suri, an application for impleadment was moved and when the same was pending for consideration on 06.08.2012, the said suit was dismissed for want of prosecution. 8. On 18.10.2012, Dr. Susheel Suri filed a suit for permanent injunction in the Court of Civil Judge, (Sr. Div.), Lucknow, registered as Regular Suit no. 1364 of 2012 (Dr. Sushil Suri v. Harish Suri and others) with the following main relief: - "(i) A decree for permanent injunction be passed in favour of plaintiff against the defendants restraining the defendants from selling, alienating or transferring the property morefully describe in para 2 of the plaint or to creat any third party right in property in suit." 9. In the said suit, an application under Order 39, Rule 1 & 2 CPC has been moved by Dr. Susheel Suri to which an objection has been filed by appellant/Smt. Sushila Suri, thereafter on the consent of parties, the trial court has granted a temporary injunction order in favour of the plaintiff/Dr. Susheel Suri thereby restraining the defendants from alienating and transferring the properties in dispute and creating any third party interest. 10. On 06.03.2014, defendant/Smt. Sushila Suri moved an application for recording her statement under Order 18, Rule 16 read with Order 18, Rule 19 and Order 26, Rule4 CPC. The same was contested by the plaintiff/Dr. Susheel Suri and was allowed by an order dated 16.04.2014 which was challenged by Dr. Susheel Suri by filing Civil Revision No. 50 of 2014 before this Court and on 08.05.2014, this Court has dismissed the same, the operative part of the same reads as under: - "The Court after going through the judgment and hearing both the parties is convinced that the order passed by lower court is perfectly right because all the facts and the law on the subject have been considered. It is not a judgment in which any interference can be shown by this Court. The revision being devoid of merits and misconceived is accordingly dismissed. " 11. Thereafter, the statement of Smt. Sushila Suri has been recorded and the said matter is still pending for consideration before the trial court. 12. On 12.02.2015, Dr. Susheel Suri has filed a suit for partition and permanent injunction, registered as Regular Suit No. 342 of 2015. 13. On the same day, i.e. 12.02.2015, the Civil Judge (Sr. " 11. Thereafter, the statement of Smt. Sushila Suri has been recorded and the said matter is still pending for consideration before the trial court. 12. On 12.02.2015, Dr. Susheel Suri has filed a suit for partition and permanent injunction, registered as Regular Suit No. 342 of 2015. 13. On the same day, i.e. 12.02.2015, the Civil Judge (Sr. Div.), Lucknow/trial court granted an ex-parte temporary injunction in favour of plaintiff/Dr. Susheel Suri thereby restraining the defendants of the suit from raising any construction or selling or creating third party interest in the properties in question. 14. On 03.03.2015, appellant/Smt. Sushila Suri, defendant in the said suit filed an objection to the application under Order 39, Rule 1 & 2 CPC and also field an objection in regard to maintainability of the same. 15. Thereafter, Smt. Sushila Suri for redressal of her grievances approached this Court by filing FAFO No. 183 of 2015, disposed of by a Division Bench of this Court by order dated 26.03.2015, same reads as under: - "Vakalatnama on behalf of the respondents filed by Shri. Ram Narain Gupta, Advocate, is taken on record. Heard learned counsel for the parties and perused the material available on record. This appeal has been filed against the order dated 12.2.2015 passed by Civil Judge (Senior Division), Lucknow in Regular Suit No.342 of 2015 (Dr. Susheel Suri v. Harish Suri and others) by means of which injunction was granted ex parte in favour of the respondents. It is to be noted that objection to the application for interim relief has already been filed before the trial Court which has been granted against the appellant and that objection filed on behalf of the appellant is pending for adjudication. In the meantime, the appellant has rushed to this Court challenging the maintainability of the suit and ex parte interim order. Submission is that litigation was ensuing from before between the parties and without hearing the appellants, the injunction could not have been granted. Be that as it may, since the objection has been filed on 3.3.2015 which is pending adjudication, the appellant may approach the trial court for getting the objection decided, at the earliest, in accordance with law. Submission is that litigation was ensuing from before between the parties and without hearing the appellants, the injunction could not have been granted. Be that as it may, since the objection has been filed on 3.3.2015 which is pending adjudication, the appellant may approach the trial court for getting the objection decided, at the earliest, in accordance with law. Accordingly, this appeal is disposed of with a direction to the trial Court to dispose of the objection filed by the appellant preferably on next date and if not possible then within a period of three months from the date of production of a certified copy of this order." 16. Accordingly, the matter has come up for consideration before the Civil Judge (Sr. Div.), Lucknow on 26.08.2015, the trial court passed an injunction order to the effect that parties shall maintain status quo in respect to properties in dispute, plaintiff and defendants shall not make any construction during the pendency of the case and shall not create their party right in the properties in dispute. 17. The said order has been assailed in the present appeal. 18. Sri. S.K. Kalia, Senior Advocate assisted by Sri. D.S. Tripathi, learned counsel for appellant while challenging the impugned order had argued that the order dated 26.08.2015 passed by the trial court/Civil Judge (Sr. Div.), Lucknow is contrary to law as while granting the temporary injunction in favour of plaintiff/Dr. Susheel Suri and thereby restraining the defendantppellant from raising construction over the properties to which she is absolute owner as such the same is nullity. 19. He further argued that the plaintiff/Dr. Susheel Suri has neither any title nor he is in possession over the properties in question in the suit in question, so there is no justification or reason by the trial court for granting the injunction order dated 26.08.2015 in favour of plaintiff as no balance of convenience lies in his favour, as it is settled law that the hardship of both parties should be seen while deciding the case of injunction but in the instant case once the appellant/defendant No. 2 has an exclusive title and possession over the properties in question, the balance of convenience lies in her favour, so considering the said facts no irreparable loss and injury is going to be caused to the plaintiff as such there is no justification to grant injunction in favour of plaintiff. 20. 20. He further argued that once the plaintiff Dr. Susheel Suri has filed a suit for permanent injunction bearing Suit No. 1364 of 2012 (Dr. Susheel Suri v. Harish Suri and others) in which he has relinquished his right of filing a suit for partition, therefore, no second suit for partition and permanent injunction is maintainable, in this regard an application has been moved by applicant keeping in view the said facts as well as a direction issued by this Court by an order dated 26.03.2015 in FAFO No. 183 of 2015 (Smt. Sushila Suri v. Dr. Susheel Suri and others), wherein finding given by the trial court that said matter shall be considered at the stage of evidence whether the will is void document or not. The said exercise on the part of trial court is contrary to law as well as provisions of Order 2, Rule 2 CPC. 21. Accordingly, Sri. S.K. Kalia, senior Advocate submits that the court below has committed a manifest error in observing that whether the suit is barred under Order 2, Rule 2 CPC or not will be seen later on after the evidence is led, though the same is a legal issue to be decided at a preliminary stage because if the suit is not maintainable then no temporary injunction can be granted in favour of the plaintiff/Dr. Susheel Suri, so the impugned injunction order dated 26.08.2015 passed by the trial court is liable to be set aside. 22. Sri. Gaurav Mehrotra and Sri. Anil Tiwri, senior Advocate assisted by Sri. Prabhakar Mishra, learned counsel for respondent No. 2 , 4 & 5 respectively support the case of the appellant/Smt. Sushila Suri. 23. Sri. R.N. Gupta and Sri. Pratish Kumar, Advocate appearing on behalf of respondent No. 1 while supporting the impugned order submits that as there is likelihood in respect to the change in the nature of the property, so keeping in view the said facts no illegality or infirmity has been done by the trial court thereby passing an order dated 26.08.2015 in Regular Suit No. 342 of 2015.directing the parties to maintain status quo in respect to the plot in dispute and not to make any construction over the land in dispute and also not transferring the property to the third party. 24. 24. In support of his argument, reliance has been placed on the judgment given by the Apex Court in the case of Maharwal Khewaji Trust (Regd)., Faridkot v. Baldev Dass, 2004 (8) SCC 488 "Be that as it may, Mr. Sachhar is right in contending that unless and untill a case of irreparable loss or damage is made out by a party to the suit, the court should not permit the nature of the property being changed which also includes alienation or transfer of the property which may lead to loss or damage being caused to the party who may ultimately succeed and may further lead to multiplicity of proceedings. In the instant case no such case of irreparable loss is made out except contending that the legal proceedings are likely to take a long time, therefore, the respondent should be permitted to put the scheduled property to better use. We do not think in the facts and circumstances of this case, the lower appellate court and the High Court were justified in permitting the respondent to change the nature of property by putting up construction as also by permitting the alienation of the property, whatever may be the condition on which the same is done. In the event of the appellant's claim being found baseless ultimately, it is always open to the respondent to claim damages or, in an appropriate case, the court may itself award damages for the loss suffered, if any, in this regard. Since the facts of this case do not make out any extraordinary ground for permitting the respondent to put up construction and alienate the same, we think both the courts below, namely, the lower appellate court and the High Court erred in making the impugned orders. The said orders are set aside and the order of the trial court is restored. The appeal is allowed." 25. It is further submitted on behalf of plaintiff/respondent No. 1 that once the suit filed by the appellant Smt. Sushila Suri for declaration has been dismissed for want of prosecution, so no bona fide case exists in her favour, as such the trial court validly granted injunction in favour of plaintiff Dr. Susheel Suri on 26.08.2015. 26. Sri. It is further submitted on behalf of plaintiff/respondent No. 1 that once the suit filed by the appellant Smt. Sushila Suri for declaration has been dismissed for want of prosecution, so no bona fide case exists in her favour, as such the trial court validly granted injunction in favour of plaintiff Dr. Susheel Suri on 26.08.2015. 26. Sri. Pritish Kumar, learned counsel for plaintiff/respondent No. 1 also argued that in Regular Suit No. 1364 of 2012, a counter claim has been filed on behalf of the appellant/Smt. Sushila Suri has already been admitted, so there is no need on the part of plaintiff to challenge the will when the suit for declaration filed by appellant has already been dismissed, as such the finding given by the trial court while passing the order dated 26.08.2015 that the suit is not barred by Order 2, Rule 2 CPC as the validity of the will is to be seen at the time of evidence is perfectly valid finding, hence appeal filed by appellant devoid of merit, liable to be dismissed. 27. On behalf of respondent No. 3-Pravesh Kumari/defendant in Regular Suit No. 342 of 2015 filed by plaintiff-Dr. Susheel Suri written argument has been filed, plea taken in support of the order dated 26.08.2015 are as follows: - 28. Alleged will dated 11.06.2004 executed by late Sri. Govind Ram Suri in favour of appellant-Smt. Sushila Suri was never acted upon and is a fictitious one, not proved by the appellant as per the provisions of Indian Evidence Act, 1872 and Indian Succession Act. In this regard, it is submitted that as per the provisions of Section 68 of Indian Evidence Act, 1872, the will is to be proved by one of the attesting witness, till date Smt. Sushila Suri has not proved the said will, so no benefit can be granted in her favour as the same is surrounded by suspicious circumstances, executed by Sri. Govind Ram Suri without free will and it is an outcome of fraud and undue influence. 29. In support of the argument reliance has been placed on the judgment given by Hon'ble the Apex Court in the case of Smt. Yashwant Kaur v. Smt. Amrit Kaur and Ors., 1977 (1) SCC 369 . 30. Govind Ram Suri without free will and it is an outcome of fraud and undue influence. 29. In support of the argument reliance has been placed on the judgment given by Hon'ble the Apex Court in the case of Smt. Yashwant Kaur v. Smt. Amrit Kaur and Ors., 1977 (1) SCC 369 . 30. Next submission on behalf of the respondent/Smt. Pravesh Kumari is that mere registration of the will dated 11.06.2004 cannot be presumed to be a genuine and valid document. In support of the argument reliance has been placed on the judgment given by Hon'ble the Apex court in the case of Bhagat Ram and Anr. v. Suresh and Ors. 2003 (12) SCC 35 . 31. Third submission which has been made that the appellant- Smt. Sushila Suri has filed a collusive suit for declaration (Regular Suit No. 223 of 2012) impleading Sri. Gaurav Suri on the basis of alleged will dated 11.06.2004, thereafter other legal heirs and owners who had the equal and common interest in the disputed properties got themselves impleaded. Subsequently, the said suit got dismissed in default, so the said facts goes to show that Smt. Sushila Suri has got no individual interest in the properties in question and on the basis of alleged will dated 11.06.2004 other heirs of the deceased Govind Ram Suri have shares, so keeping in view the said fact injunction order dated 26.08.2015 has rightly been served by the trial court. In support of his argument reliance has been given on the judgment given by Hon'ble the Apex Court in the case of T. laxmipathi and Ors. v. P. Nithyananda Reddy and Ors. (2003 ) 5 SCC 150. 32. Lastly it is further submitted on behalf of respondent/Smt. Pravesh Kumari that in order to preserve the rights of the parties, the order passed by the trial court/Civil Judge (Sr. Div.), Lucknow dated 26.08.2015 thereby directing the parties not to change the nature of the properties or make any construction or maintain status quo is perfectly valid and keeping in view the said facts interference by the appellate court in the said finding is very limited, so the present appeal filed by the appellant/Smt. Sushila Suri lacks merit, liable to be dismissed. In support of his argument reliance has been placed on the following judgment given by Hon'ble the Apex Court: - 1. In support of his argument reliance has been placed on the following judgment given by Hon'ble the Apex Court: - 1. Mahawarlawl Khewaji Trust (Regd.) v. Baldev Dass, 2004 (8) SCC 488 2. Makers Development Services Private Limited v. M. Visvesvaraya Industrial Reasearch and Development Cfentre, 2012 (1) SCC 735 3. Sharif Ahmad and Ors. v. Chakshu and Associates, FAFO No. 1228 of 2012 (Allahabad High Court) 4. Julien Educational Trust v. Sourendra Kumar Roy and Ors., 2010 (1) SCC 379 Wander Ltd. and Anr. v. Antox India Pvt. Ltd., 1990 Supp SCC 727. 33. We have heard learned counsel for parties and gone through the record. 34. While considering the application for grant of temporary injunction under Order 39, the Court is to see that the main objective of grant of temporary injunction is to protect the rights of a party pending litigation and also to prevent future injury leaving the matter as far as possible in status quo until the suit is finally heard and the rights of the parties are finally determined. 35. Though various principles have been laid down for the grant of temporary or interim injunction, but the Court must take into consideration three important conditions for the grant of temporary or interim injunction i.e., (i) Prima Facie Case ; (ii) Balance of Convenience ; and (iii) Irreparable Injury Prima Facie Case : - Prima facie case means the plaintiff must, by making positive averments, assert that he has a strong case and a legal right to the property in suit, which has to be preserved and protected. It is not necessary for the plaintiff to prove by evidence. But, at least he must show that he has a strong prima facie case and there is every chance of his success in the case. Existence of prima facie case is sine qua non for the issuance of an interim injunction, provided the two other conditions namely, balance of convenience and irreparable injury are satisfied. Prima facie case does not mean prima facie title. Prima facie case exists whenever there are issues which need trial and adjudication. Necessary criteria for establishing a prima facie case is that the plaintiff has to show that he has bonafidely raised a substantial question which needs to be adjudicated at the trial of the suit. Prima facie case does not mean prima facie title. Prima facie case exists whenever there are issues which need trial and adjudication. Necessary criteria for establishing a prima facie case is that the plaintiff has to show that he has bonafidely raised a substantial question which needs to be adjudicated at the trial of the suit. Balance of Convenience : - At the same time, mere existence of prima facie case is not sufficient for the grant of injunction. The plaintiff must also show that the balance of convenience lies in his favour in grant of injunction. The Court must see that there is a bona fide contest between the parties, and then, on which side the balance of convenience lies, in the event of success, if injunction is not issued, Injunction cannot be granted if balance of convenience is not in favour of the plaintiff. In a nutshell, it is clear that in order to obtain an order of injunction, the party who seeks for grant of injunction has to prove that he has made out a prima facie case to go for trial and also the balance of convenience is in his favour. However, when the party fails to prove prima facie case to go for trial then the question of considering balance of convenience does not arise. Irreparable Injury : - Another important ingredient is the proof of irreparable injury. A party who seeks the aid of the Court must also satisfy the Court that its interference is necessary to protect him from the irreparable injury till the legal right claimed by him in the suit is established. The term 'irreparable injury' means such injury, which is a material one and could not be adequately remedied or compensated in terms of money or damages. There are, however, certain instances where the injury although can be compensated by damages, yet if such injury totally destroys the subject matter of the suit, then that can be treated as irreparable injury. 36. An injunction can be applied for at any stage of the proceeding. But, no motion should be made without notice to the other side. There are, however, certain instances where the injury although can be compensated by damages, yet if such injury totally destroys the subject matter of the suit, then that can be treated as irreparable injury. 36. An injunction can be applied for at any stage of the proceeding. But, no motion should be made without notice to the other side. However, if the Court is satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, then in such a case order of ex parte injunction can be passed upon such terms as the Court otherwise thinks fit and proper. 37. From the foregoing discussion, it is manifest that before an order of temporary or interim injunction is passed a party has to prove the existence of the above three important ingredients. But, ultimately it is for the Court to decide as to whether, in the facts and circumstances of the case, it is necessary to protect the property, which is the subject matter of the suit from being damaged. The right of a party with regard to the property could be secured by issuing prohibitory order. 38. The Hon'ble Supreme Court in the case of Manohar Lal Chopra v. Rai Bhaadur Rao Raja Seth Hiralal ( AIR 1962 SC 527 ). held that the Court has inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39 of the Code of Civil Procedure. It was held that no party has a right to insist on the Court's exercising that jurisdiction. 39. Inherent jurisdiction can be exercised by the Court only when it considers it absolutely necessary for the ends of justice to do so. In the case of Kashi Math Samasthan & Anr. v. Shrimad Sudhindra Thirtha Swamy & Anr. AIR 2010 SC 296 , the Hon'ble Supreme Court held as under: - "13. It is well settled that in order to obtain an order of injunction, the party who seek for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. It is well settled that in order to obtain an order of injunction, the party who seek for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court." 40. In the case of Gujarat Bottling Co. Ltd. & Ors. v. Coca Cola Co. & Ors. AIR 1995 SC 2372 , the Supreme Court elaborately discussed the scope and object of Order 39, Rule 1 and 2 and held as under: - "46..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. 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. 41. In the instant matter as per admitted facts the properties in question belongs to late Sri. Govind Ram Suri who had executed a will in favour of his wife on 11.06.2004, the said properties are subject matter of the litigation in the Regular Suit No. 342 of 2015 filed for partition and permanent injunction. 42. Further, the plaintiff/Dr. Susheel Suri has neither any title nor right over the property in question nor in possession, so keeping in view the said facts, there is no justification or reasons on the part of the court below to grant the temporary injunction against the appellant/defendant in the said suit thereby maintaining the status quo and not to make any constructions over the land in dispute and also not to create their party right. So the order dated 26.08.2015 granting injunction is contrary to law, so the plaintiff has no prima facie case or balance of convenience in his favour, not entitled for a temporary injunction as per the provisions of law stated herein above and law laid down by Hon'ble the Apex Court in the case of Jyoti Ltd. and others v. Bharatji Patel, 2015 (14) SCC 56, that the court while considering the case of grant of temporary injunction has to satisfy itself whether the particular requisite, case satisfied i.e. prima facie case balance of convenience and irreparable loss and without considering the same the temporary injunction is being granted the same is immpermissible. (See. Rames Vajabhai Rabari v. Pratiksha Real Estate Private Limited and others , 2014 (12) SCC 190 ). 43. (See. Rames Vajabhai Rabari v. Pratiksha Real Estate Private Limited and others , 2014 (12) SCC 190 ). 43. Thus, the order dated 26.08.2015 passed by the trial court/Civil Judge (Sr. Div.), Lucknow granting the temporary injunction in his favour by order dated 26.08.2015 contrary to law, liable to be set aside. 44. In view of the discussion made herein above, the respondent cannot get any benefit from the law as laid down by Hon'ble the Apex Court in the case of Maharwal Khewasi Trust (Regs Faridkot v. Baldev Dass, 2004 (8) SCC 488 as the same is not applicable to the facts of the present case. 45. So far as the maintainability of the second suit i.e. Suit No. 342 of 2015 filed for partition and permanent injunction is concerned, the court has to decide the said point on merit in view of the direction given by this Court by order dated 26.03.2015 passed in FAFO No. 183 of 2005. 46. However, the court has not decided the plea taken by the appellant regarding maintainability of the suit as per the provisions of Order 2, Rule 2 CPC on the ground that at this stage while granting the temporary injunction in favour of the plaintiff as the injunction order has already been granted in past thereby restraining the defendant from transferring and alienating the properties in question and creating third party interest and the present suit has been filed for partition in which the plaintiff has taken a plea that the will executed in favour of defendant No. 2/Smt. Sushila Suri is a void document as the same has been executed playing fraud, so the matter in regard to validity of the will whether it is a void document or not shall be decided after the evidence (Sakhya Sankalit) in the matter and if the court comes to the conclusion on the basis of evidence that the version of the plaintiff is correct that the will is a void document then in that circumstance plaintiff will suffer irreparable loss if the defendants are permitted to make construction over the properties in dispute. Accordingly, by an order dated 26.08.2015 granting the temporary injunction in favour of the plaintiff Dr. Accordingly, by an order dated 26.08.2015 granting the temporary injunction in favour of the plaintiff Dr. Susheel Suri thereby directing the parties to maintain status quo in respect to properties in dispute and not to make any construction on the land in dispute and not to transfer or alienate the properties by creating third party interest. 47. The said reasoning given by the trial court is contrary to law as it has to adjudicate and decide first that once there is a cloud over the ownership and possession of the plaintiff/Dr. Susheel Suri then the same is to be decided first and the court has to see whether the suit for partition and permanent injunction is maintainable without seeking a relief for declaration. Because Hon'ble the Apex Court in the case of Anthula Sudhakar v. P. Buchi Reddy (Dead) By Lrs. and others, 2008 (4) SCC 594 , in paragraph No. 21 held as under: - "To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case." 48. Further, Hon'ble the Apex Court in the case of Rathnavathi and another v. Kavita Ganashamdas, 2015 (5) SCC 223 , in paragraph No. 23 held as under: - "At the outset, we consider it apposite to take note of law laid down by the Constitution bench of this Court in Gurbux Singh v. Bhooralal, AIR 1964 SC 1810 , wherein this Court while explaining the true scope of Order 2, Rule 2 of CPC laid down the parameters as to how and in what circumstances, a plea should be invoked against the plaintiff. Justice Ayyangar speaking for the Bench held as under: "In order that a plea of a bar under Order 2, Rule 2 (3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3)that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar….." (Emphasis supplied)" 49. So far as the submission made on behalf of Smt. Pravesh Kumari-respondent in the appeal and defendant No. 3 in Regular Suit No. 342 of 2015 that alleged will dated 11.06.2004 executed by late Govind Ram Suri cannot be acted upon or to be considered to be a valid as the same has been surrounded bysuspicious circumstances and has not been proved in accordance with provisions of Indian Evidence Act, 1872 and Indian Succession Act and has been executed by playing fraud on the executor/Sri Govind Ram Suri, mere registration of the same cannot presume a genuine and valid title has got no force as in the instant matter as the order dated 26.08.2015 has been passed in a Regular Suit No. 342 of 2015 filed by Dr. Susheel Suri/plaintiff for partition and permanent injunction and admittedly as per the facts of the case plaintiff/Dr. Susheel Suri is neither in possession over the properties in dispute nor he has got any title over the same, so there is no justification or reasons on the part of trial court to pass the injunction order because no prima facie case or balance of convenience lies in favour of the plaintiff. 50. In addition to the said fact plaintiff-Dr. 50. In addition to the said fact plaintiff-Dr. Susheel Suri in the earlier suit filed by him for permanent injunction bearing Suit No. 1364 of 2012 (Dr. Susheel Suri v. Harish Suri and others), has relinquished his right for filing a suit for partition and in this regard specific pleadings has been made in the said suit. 51. Next submission made on behalf of Smt. Pravesh Kumari in order to support the order dated 26.08.2015 passed in Regular Suit No. 342 of 2015 under challenge in the present appeal that Smt. Sushila Suri has filed a suit for declaration (Suit No. 223 of 2012) in which the other legal heirs of late Govind Ram Suri have not been made party and they are the co-owners and they have equal shares in the disputed properties, dismissed for want of prosecution as well as the argument that by an order dated 26.08.2015 the trial count had directed to maintain status quo in respect to the properties in question and not to make any construction or challenge the nature of the properties and the scope of interference by the appellate court in the finding and conclusion given by the trial court while granting the temporary injunction is concerned, as stated above, the order dated 26.08.2015 has been passed by the trial court/Civil Judge (Sr. Div.), Lucknow in the suit for partition and permanent injunction then the trial court/Civil Judge (Sr. Div.), Lucknow before granting the injunction dated 26.08.2015 before doing so a mandatory duty caste upon trial court to see whether the plaintiff-appellant has got title and possession and if not then the suit for permanent injunction is maintainable without a relief for declaration. In addition to the said facts plaintiff/Dr. Susheel Suri as per his own pleading in earlier injunction suit filed by him Suit No. 1342 of 2012 he has pleaded that he has relinquished his right for filing a suit, so the court has to see whether the suit for partition is maintainable, because the said exercise is to be done by the trial court, as in this regard an application has been moved by the appellant Smt. Sushila Suri and a direction has been given by this court on 26.08.2015 in FAFO No. 183 of 2015 to decide the said point. 52. 52. Further in the properties in dispute with the consent of the parties in the earlier suit for permanent injunction bearing Suit No. 1364 of 2012 in which Smt. Pravesh Kumari as well as other legal heirs of Govind Ram Suri are parties the trial court/Civil Judge (Sr. Div.), Lucknow has granted an injunction thereby restraining the parties from alienating and transferring and creating any third party interest then once the said order has been passed and the same is in the knowledge of the Civil Judge (Sr. Div.), Lucknow then there is no justification or reason on the part of trial court to again pass an injunction order dated 26.08.2015 in the suit for partition and injunction (Suit No. 342 of 2015) when as per the pleading of the suit the plaintiff is not in possession and has no title over the property in questions. Thus, keeping in view the said facts as the necessary ingredients/conditions which have to be kept by the court while granting temporary injunction i.e. prima facie, balance of convenience, irreparable loss, does not extent in favour of the plaintiff/Dr. Susheel Suri and the order 26.08.2015 is contrary to law, liable to be set aside. 53. For the foregoing reasons, the order dated 26.08.2015 passed by the court below in Regular Suit No. 342 of 2015 is set aside and the appeal is allowed with a direction to trial court/Civil Judge (Sr. Div.), Lucknow to decide the suit in accordance with law. Appeal allowed.