IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.395 of 2009 SITA RAM PANDEY Versus RAKESH KUMAR PANDEY & ANR For the appellant:Mr.Rewti Kant Raman,Advocate. For the respondents: 3 23.4.2010 Heard the learned counsel for the appellant and the learned counsel for the respondents also under Order 41 rule 11 C.P.C. 2. This Misc. appeal has been filed against the order dated 12.5.2009 passed by Fast Track Court II, Kaimur at Bhabhua, in Probate Case no.69/05 for granting of Probate of will said to be executed by Surya Mukha Kuer in favour of him. In that Probate case injunction application was filed alleging that the objectors were transferring the land. By the impugned order the learned court below allowed the injunction application and restrained Sita Ram Pandey from transferring the land. 3. The learned counsel for the appellant submitted that in a probate case no injunction can be granted. The learned counsel further submitted that the learned court below has not considered the ingredients for the grant of injunction, i.e., prima facie case and balance of convenience and serious loss or irreparable injury. On the other hand, the learned counsel for the respondents submitted that admittedly there is a partition suit between the parties being Partition Suit No.215/05.The parties are descendents of the common ancestors and the appellants are trying to transfer the 2 suit property, therefore, injunction order was passed. According to the learned counsel it is not necessary to right in the order that the plaintiff has got prima facie case and balance of convenience is in his favour. The learned counsel submitted that if after considering the facts and circumstances of the case injunction is passed then impliedly it will mean that the court has found prima facie case and balance of convenience in favour of the parties praying for injunction. 4. I have heard at length. It is admitted case that there is a partition suit being Partition Suit No.215/05. In that suit also the lands covered by the so called will in Probate Case No.69/05 is also included. In that title suit there is an injunction order against the parties which would be evident from the impugned order. 5. From perusal of the impugned order it appears that the learned court below without considering the prima facie case in favour of the plaintiff and also balance of convenience has passed the injunction only on the ground that till probate is granted no transfer should be made. It is well settled that unless the probate is granted the parties claiming probate under the will cannot claim title over the suit property. Moreover, the parties are in litigating term in Partition Suit No.215/05 wherein also this land is included and in that case there is already injunction order. 6. In view of the above facts and circumstances of the case the impugned order is set aside. The Misc. Appeal is allowed. Injunction matter is remanded to the court below for 3 reconsideration and for passing order according to law. AnilKr.Sinha ( Mungeshwar Sahoo, J )