G.D. Dubey, J. - (1.) THIS appeal has been preferred against the judgment and order of III Additional District Judge, Dehradun. The learned trial court has issued a temporary injunction restraining the respondent No. 1 from interfering in the common use and enjoyment of the petitioner Nos. 1 and 3 in a common passage measuring 20' x 200' leading from a 50' wide road from Nainjhawar to Aryanagar crossing to plot No. 124 in Deva Singh Park Swaroopnagar, Kanpur which was shown by green colour and marked with letters A.B.C.D. and E in the plan annexed to the affidavit accompanying the application for temporary injunction. A petition for probate was filed by the respondent first set against the defendant -appellant and respondents 4 to 14 in the Court of District Judge, Dehradun on 6th of October, 1989. The property in dispute in this case was the plot No. 126 and 124 situated in Swaroop Nagar, Kanpur. The petitioner -respondent first set has alleged that Preetam Singh the last testator died on 11th March, 1969 at the age of 60 years. The testator had acquired various immovable properties and movable assets in the shape of some shares of M/s. Singh Engineering Works Private Ltd. Kanpur. The testator had executed a Will on 5th February, 1969. By this Will he has bequeathed his property moveable and immovable to the various member of his family i.e. his wife, sister and nephew. After the death of Preetam Singh some dispute had started amongst the members of testator's family and the beneficiaries regarding the distinction of the assets of the deceased. Hence the necessity to obtain probate arose. It was stated that the testator had died at Kanpur. He had no fixed place of residence. Mostly he leaved at Mussoorie. Smt. Bhagwant Kaur Wife of Preetam Singh had died on 10 -11 -1982 leaving behind a Will dated 29 -12 -1977 which has been registered in office of Sub -Registrar New Delhi Smt. Bhagwant Kaur had died issueless. It was further stated that the deceased Preetam Singh had property at Mussoorie at the time of his death within the jurisdiction of district Courts of Dehradun. Consequently it was urged that the court at Dehradun has jurisdiction to grant the probate.
(2.) ALONGWITH the application for probate an application for temporary injunction was also moved same day. In this petition it is alleged that the respondent No. 4 had acted upon the Will. Consequently he had sold half of the plot No. 126 situated in Sardar Deva Singh Park, Swaroop Nagar Kanpur to Sardar Joginder Singh by virtue of sale -deed dated 23 -11 -1970. In this sale -deed it was stated that a 20' wide and 200' long passage leading from 50' wide road from Nainjhawar to Aryanagar crossing to plot No. 124, Deva Singh Park, Swaroop Nagar shall exist. The plot No. 124 is said to have fallen to the share of petitioner No. 3 to the probate i.e. Sardar Alam Singh and respondent No. 1. It was alleged that this passage was only passage leading to plots No. 124. According to the petitioner the respondents were intending to close down the said passage and cause interference in the use and enjoyment of the passage. The respondent No. 4 Sardar Kripal Singh on behalf of himself and other respondents is said to have threatened Aspan Singh and Alam Singh petitioners that they shall not permit the above petitioners to use the said passage unless Aspan Singh and others join their illegal design. It was alleged that respondents 11 and 12 had left India. The respondent Nos. 1 and 8 were likely to leave India. They were searching customer who may buy their property. Consequently it was also urged that if the respondent succeeded in transferring their share in the property than the Will create a multiplicity of suit and also affect the interest of the petitioner in the above passage leading to plot No. 124. On these grounds a prayer has been made to restrain the respondents from removing, damaging, alienating or transferring the properties mentioned in the Schedule B, C and D to the probate petition. Only opposite party No. 5 Sardar Harbhajan Singh had contested the injunction application at the initial stage. Other opposite parties had not been served by then. This contesting opposite party (appellant) had denied the existence of passage. He also denied that Will as alleged by the petitioner was ever executed by Sardar Preetam Singh. This Will was alleged to be a fabricated document. The contesting appellant denied that property mentioned in Schedule B, C and D had fallen to the share of the petitioners. Appellant had challenged the jurisdiction of the trial court. The right of petitioner to present the petition for probate was also challenged on the ground that they were neither executor nor trustees of late Preetam Singh The appellant also stated that in a previous instituted suit the petitioner had stated that Sardar Preetam Singh has not executed any Will. In these circumstances it has been alleged that the petitioner can not base his claim on another Will and their claim was alleged to be barred by the principle of res -judicata.
(3.) THE petition had been transferred to the Court of III Additional District Judge Dehradun. The learned III Additional District Judge had found that the petitioner had a prima facie case and balance of convenience lay in their favour. It was also held that petitioners shall suffer an irreparable loss if the injunction is not granted in the matter. On these findings the impugned order was passed;