D.K. Seth, J. - (1.) The opposite party Nos. 3 and 4 had filed a suit being Original Suit No. 145 of 1996 before Civil Judge. Junior Division, Chakla Varanasi. In connection with the said suit, an application for temporary injunction was filed. By an order dated 11.9.1997 temporary injunction was granted. Appeal being Civil Misc. Appeal No. 225 of 1997 was filed by the defendants. The appeal was dismissed by an order dated 20.3.1998 passed by the Additional Judge, Small Causes Court. These are the orders under challenge.
(2.) Learned counsel for the petitioner Sri R.J. Singh contends that opposite party No. 3 Smt. Piyari Devi, has been claiming interest over the property by virtue of will executed in her favour on 31.1.1973 whereas petitioner-defendant claiming interest over the property by virtue of Will dated 25.3.1973 executed by the same person. According to him, it is an established principle of law that the last will shall prevail.
(3.) He further contends that the petitioners having been in physical possession, they cannot be dispossessed by virtue of interim order. From the material on record according to him, the plaintiff was unable to establish prima facie case. On the face of will, the plaintiff did not have any title to the property. In the Commissioner's report it was found that the masons and workers working on the land has testified that they were working under defendant-petitioners, herein. Both the Courts below have overlooked the said findings recorded in the report of the Commissioner and had arrived at altogether to a perverse conclusion. He further submits that the order, as it appears, suffers from the perversity. He led me through various orders in order to substantiate his case.;