Subhro Kamal Mukherjee, J.
1. This is an appeal by an unsuccessful plaintiff against Order No. 6 dated July 6, 2006 passed by the learned Civil Judge (Senior Division), Siliguri, in a suit for partition and for recovery of possession.
2. The plaintiff/appellant instituted Title Suit No. 18 of 2006, inter alia, seeking a preliminary decree for partition declaring plaintiff's share of .08 decimals of land described in the schedule 'B' to the plaint, final decree for partition and separate possession according to the report of the partition commissioner, recovery of possession in respect of .05 decimals in R.S. Plot No. 406 as described in schedule 'C' to the plaint.
3. It is alleged in the plaint that Kharga Bahadur Gurung, the father of the plaintiff, and Madhumaya Gurung, the grandmother of the plaintiff, were the recorded owners of the land appertaining to Revenue Settlement Khatian No. 413 of mouza Siliguri in the district of Darjeeling. They had 5 annas and 2 gandas shares each in the total land comprising in the said khatian measuring about 2.62 decimals. They were in joint possession in respect of their 10 annas and 4 gandas shares in the total land appertaining to said khatian. On the death of Madhumaya, her share devolved upon Kharga Bahadur as her only heir and legal representative Kharga Bahadur Gurung, during his lifetime, executed a Will in favour of his son, that is, the plaintiff, in respect of all his properties including his share in the said land. The plaintiff, on the death of his father, obtained a probate of the said Will from a competent Court of Law. Mukhia Brombholal Shrestha was the recorded tenant in respect of the remaining land appertaining to the said Khatian No. 413. He transferred his share in favour of Shambhulal Shrestha and four others by a registered deed of gift dated November 24, 1956. The donees accepted the gift representing Nepal Gramin Bikash Samaj. The said Shambhulal Shrestha and others transferred their share to Mir Afsan Kabir Siddique and others, in their turn, conveyed the land to the defendant. The plaintiff was, therefore, possessing separately 45 decimals of land with specific boundaries by constructing his residential house in plot Nos. 406 and 407. On January 17, 2006 the defendant had trespassed in to .05 decimals of land in R.S. Plot No. 406 and forcibly dispossessed the plaintiff. Therefore, the defendant was possessing the said .05 decimals of land, as described in schedule 'C' to the plaint as trespasser and the plaintiff prayed for recovery of possession of the said land. The land covered by schedule 'B' to the plaint had not been partitioned by metes and bounds and the plaintiff and the defendant were in joint possession of the same. In spite of requests made on several times for amicable partition of the lands described in the schedule 'B' and, also, to vacate the land described in schedule 'C' to the plaint, the defendant declined to accede to the request of the plaintiff.
4. In the said suit, the plaintiff moved an application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure seeking an order for temporary injunction to restrain the defendant to raise any construction and from changing the nature and character of the suit land as described in schedules 'B' and 'C' to the plaint till the disposal of the said suit.
5. The defendant contested the said application for temporary injunction by filing a written objection. In the said written objection it was contended that Birendranath Roy Sarkar and others were tenure-holders in respect of vast quantity of land, under the zamindari of Raikats of Jalpaiguri, in Mouza:
Dabagram, now Siliguri Kama Bahadur Gurung was an under-tenure holder in respect of about 57 decimals of land prior to coming into operation of the West Bengal Estates Acquisition Act, 1953. At the relevant time there was no survey record in respect of the lands within the Siliguri police station and, therefore, in all the transactions the demised lands were described with measurements on guess and with the boundaries. On the death of Kama Bahadur Gurung, his interest in the aforementioned lands devolved upon his son Kharga Bahadur Gurung and his widow Madhumaya Gurung. However, during the lifetime of Karna Bahadur Gurung, he disposed of major portion of his land leaving a small quantity. By a registered deed of sale dated October 6, 1950 the heirs of Kama Bahadur, namely, Kharga Bahadur and Madhumaya, conveyed 2 bighas, 12 cottahs and 13 chittaks of lands with specified boundaries, out of total area of 57 acres of land, to Mukhia Brahmalal Shrestha. Mukhia Brahmalal Shrestha transferred the said land by executing a deed of gift dated November 24, 1956 to Swaymbhulal Shrestha and four others, who were members of the executive committee of the Nepal Gramin Bikash Samaj of Bhadrapur. After enforcement of the West Bengal Estates Acquisition Act, 1953, record-of-rights were prepared for the first time in respect of the lands within the police station of Siliguri and during such settlement operation the lands retained by Kharga Bahadur Gurung and his mother, including the aforementioned transferred lands of favour of Nepal Gramin Bikash Samaj, were recorded in Khatian No. 413 of Mouza; Siliguri in different plots with exclusive possession of separate owners. The lands of Kharga Bahadur and his mother were recorded in plot Nos. 406 and 407 with total area of 1.67 acres and the lands transferred in favour of Nepal Gramin Bikash Samaj were recorded in plot Nos. 403, 404 and 405 with an area of 95 decimals. By a deed of settlement dated June 5, 1991, the lands in plot Nos. 406 and 407 were settled by Kharga Bahadur in favour of the plaintiff/appellant and others Kharga Bahadur Gurung executed the last Will and testament on April 27, 1995 in respect his landed properties in mouzas Mirikh and Kurseoung and in the Will it was specifically mentioned that he had already allotted respective portions of his immovable properties situated at Siliguri to his children by virtue of the said deed of settlement dated June 5, 1991 and the said Will was executed as he did not make any provision regarding the immovable properties situated at Mirikh and Kurseoung. By six several registered deeds of sale dated March 26, 2002 and October 7, 2002 Nepal Gramin Bikash Samaj transferred 24 cottahs of land to Dr. Nausabha Siddique and five others. By registered deeds of sale dated May 20, 2005 the said Dr. Siddique and five others transferred the said 24 cottahs of land in favour of the defendant. The defendant by a deed of sale dated July 27, 2005 purchased further 24 cottahs 12 chittaks, more or less, lands in plot Nos. 403, 404 and 405 from Nepal Gramin Samaj. On March 16, 2006 the defendant purchased from Nepal Gramin Samaj 4 cottahs of land, more or less, in plot Nos. 403, 404 and 405. Thus, the defendant became the owner of the entire 2 bighas 12 cottahs and 13 chittaks of land in plot Nos. 403, 404 and 405. There was no partible estate between the plaintiff and the defendant and the suit for partition was, therefore, not maintainable.
6. The learned Trial Judge by the order impugned dated July 7, 2006 rejected the application for temporary injunction as the plaintiff failed to show a prima facie case in respect of the suit land.
7. Being aggrieved the plaintiff has come up with this appeal before this Court.
8. Mr. Roy Chaudhury, learned senior Advocate, appearing in support of this appeal, submits that the learned Trial Judge ought to have granted an order of injunction in favour of the appellant inasmuch as this is suit for partition and unless the defendant is restrained from changing the nature and character of the suit property, the suit will become infructuous. Mr. Roy Chaudhury, further, submits that if the defendant is allowed to put up constructions, the situation may become irreversible by the time the suit is decided finally and would preclude a fair and just decision of the suit. Mr. Roy Chaudhury, in support of his contentions, cites the decisions in the cases of Gangubai Babiya Chaudhary and Ors. v. Sitaram Bhalchandra Sukhtankar and Ors. reported in : AIR1983SC742 , Dalpat Kumar and Anr. v. Prahlad Singh and Ors. reported in : AIR1993SC276 , Maharwal Khewaji Trust, Faridkot v. Baldev Dass reported in : AIR2005SC104 , Israil and Ors. v. Samser Rahman and Ors. reported in 19 CLJ 47 and Hemanta Kumar Ray and Anr. v. Baranagore Jute Factory Company reported in 20 CLJ 441. Mr. Roy Chaudhury, finally, argues that while considering an application for temporary injunction, the learned Trial Judge held a minitrial, which is not permissible under the law.
9. Mr. Sudhis Dasgupta, learned senior Advocate, appearing on behalf of the defendant, on the contrary, supports the order of the learned Trial Judge and submits that as the plaintiff failed to make out a prima facie case, the learned Trial Judge was justified in rejecting the application for temporary injunction. Mr. Das Gupta, in support of his contentions, relies upon the decision in the case of Dalpat Kumar (supra), where the Supreme Court of India restated the principles of law regarding grant of interim injunction.
10. It is settled law that grant or refusal of temporary injunction is covered by well-established principles, that is, whether the petitioner has made out a prima facie case, whether the balance of convenience is in favour of the petitioner and whether the petitioner would suffer irreparable injury. While the first condition is sine qua non, the petitioner is, also, to establish two other conditions conjunctively. Mere proof of any one of the said three conditions does not entitle a petitioner to get an order of temporary injunction. When none of the three conditions are fulfilled, the application for temporary injunction is liable to be rejected.
11. The plaintiff heavily relies upon the Will executed in his favour by Kharga Bahadur Gurung. He emphasises that he has obtained probate in respect of the said Will. In the said Will, however, it was stated that the testator was making provision in relation to his Mirikh and Kurseoung properties. It was, also, stated that the testator had already transferred his landed properties situated at Siliguri to his children by virtue of a deed of settlement dated June 5, 1991.
12. It appears, prima facie, from the revenue settlement records, prepared under the West Bengal Estates Acquisition Act, 1953, that the predecessors-in-title of the defendant were in exclusive possession of plot Nos. 403, 404 and 405 and the predecessor-in-interest of the plaintiff had interest only in plot Nos. 406 and 407.
13. Our attention is drawn to the rent receipts granted in favour of the plaintiff. It appears that the plaintiff paid rents only in respect of plot Nos. 406 and 407. By the deed of settlement dated June 5, 1991 Kharga Bahadur settled his land in the said plot Nos. 406 and 407 in favour of his children.
14. The defendant is claiming interest in respect of the entire land covered by plot Nos. 403, 404 and 405. It appears, prima facie, that the plaintiff has no interest in the lands covered by plot Nos. 403, 404 and 405. The plaintiff has failed to make out any prima facie case that he has interest in respect of lands covered by plot Nos. 403, 404 and 405, as described in the schedules to the plaint of this suit.
15. As the plaintiff has failed to establish the ingredients necessary to get an order of temporary injunction in his favour, we are of the opinion that the learned Trial Judge was justified in rejecting the application for temporary injunction filed by the plaintiff.
16. An order of injunction is a discretionary order and it is essential for a party appealing against such discretionary order to establish that the Court, against whose judgment the appeal is preferred, acted in the exercise of his discretion wrongly in not granting temporary injunction.
17. In the facts and circumstances of the case, we are of the opinion that the plaintiff has failed to establish that the Court below acted in the exercise of its discretion wrongly.
18. The appeal is, therefore, dismissed. The order impugned is affirmed. All interim orders are vacated.
19. We, however, hasten to add that we have not finally decided the issues in the suit. All our observations are limited for the purpose of disposal of the application for temporary injunction filed in the suit. The learned Trial Judge shall decide the issues involved in the suit independently and uninfluenced by our observations made in this order.
We are informed that several interlocutory applications are pending in connection with this appeal. As we have finally disposed of the appeal, no separate order is passed in respect of those interlocutory applications and those interlocutory applications stand disposed of.
20. The parties are directed to bear their respective costs in this appeal.
The office is directed to supply urgent xerox certified copy of this order to the parties on urgent basis.
Manik Mohan Sarkar, J.
21. I agree.