1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 3814/2010. Kailash Jagatnarayan Pande -: VERSUS :- Ashok Jagatnarayan Pande Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : SEPTEMBER 27, 2010. Heard Shri M.F. Khan, learned Counsel for petitioners and Shri S.G. Karmarkar, learned Counsel for respondent. Rule made returnable forthwith. Heard finally by consent of parties. Respondent is plaintiff who filed suit challenging a Will and also to protect his alleged possession over the suit properties. He also sought temporary injunction to protect that possession during the pendency of the suit. Petitioners/ defendants opposed the suit and claimed to be in possession. That application has been allowed by the Trial Court on 24.08.2009 and appeal against it has been dismissed by the 2 Extra Joint Adhoc District Judge, Nagpur on 18.01.2010. Short contention of learned Counsel for petitioners/defendants is, none of the Courts considered the material on record and there is no finding that the respondent/plaintiff is prima facie in possession or that the petitioners/defendants is not in possession. It is further argued that after the Trial Court passed the impugned order, an application under Order 39 rules 1 and 2 has been filed alleging breach of injunction order. In those proceedings, again the trial Court has directed the petitioners / defendants to put the respondent / plaintiff in possession. That order has been questioned in appeal, and the Appellate Court has stayed it. Shri Kurekar, learned Counsel contends that there are several documents on record which shows the possession of respondent. He was given time to point out the finding recorded either by the trial Court or by the Appellate Court to show that the respondent/plaintiff is found to be in possession. Inspite of grant of time, the learned Counsel is not in a position to show any such finding. It is therefore, apparent that only because the respondent / plaintiff is entitled to challenge a Will on which 3 the petitioners/defendants have relied, a temporary injunction has been granted. Thus there is no finding that the petitioners/defendants are not in possession or then the respondent /plaintiff is in possession prima facie. It is therefore, apparent that there is failure to consider the material aspects and also failure to exercise jurisdiction. The impugned judgment dated 18.01.2010 and order passed below Exh.5 on 25.08.2009 are therefore, unsustainable. The said order passed below Exh.5 is therefore quashed and set aside. The application Exh.5 is restored back to the file of the Joint Civil Judge, Senior Division, Nagpur with direction to decide it afresh in accordance with law at the earliest possible. Writ Petition is thus allowed. Rule is made absolute in the aforesaid terms, with no order as to costs. JUDGE Rgd.