IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.419 of 2007 ANIL KUMAR, Son of Sri Ramanand Prasad, resident of village – Pachtakki Jadu, P.S. – Bairagania, District – Sitamarhi. ……… Plaintiff / Appellant. Versus 1. SIYABATI DEVI, wife of Late Shivajee Prasad, resident of village – Pachtakki Jadu, P.S. – Bairagania, District – Sitamarhi. …… Defendant Ist Party / Respondent Ist Set. 2. Smt. Shanti Devi @ Chandrama Devi, Wife Sri Rameshwar Prasad and Daughter of Late Jai Kishun Lal, resident of village – Jadopur Nanhkar, P.S. – Dhaka, District – East Champaran. ….. Defendant 2nd Party / Respondent 2nd Set. 3. Smt. Sarswati Devi, wife of Buni Lal Sah, Resident of village – Pachtakki Jadu, P.S. – Bairagania, District – Sitamarhi. 4. Sunita Devi, wife of Ajay Singh, Resident of village – Pachtakki Jadu, P.S. – Bairagania, District – Sitamarhi. 5. Shri Ajay Kumar Shrivastava, Son of Shri Deochandra Prasad Shrivastava, resident of village – Inarwa Phulkar, P.S. Chhauradano, District – East Champaran. 6. Bilat Thakur, Son of Ghuna Thakur. 7. Ram Chandra Sah. 8. Jai Lal Sah. Both are sons of Ramfal Sah. Respondent nos. 3 to 8 are purchasers from Respondent No. 2.) 9. Mishri Lal Sah. 10. Baijulal Sah. Both are sons of Uchit Sah. Respondent Nos. 6 to 10 are residents of village Pachtakki Jadu, P.S. Bairagania, District – Sitamarhi. 11. Niraj Kumar, Son of Fulena Prasad Shrivastava, resident of village – Ram Parsauna, P.S. Sathi, District – East Champaran, at present resident of village Pachtakki, P.S. Bairagania, District – Sitamarhi. 12. Lakshmi Narain Sah, Son of Late Sitaram Sah. 13. Janardan Sah, Son of Late Sitaram Sah. 14. Mahendra Rai, Son of Late Sheo Rai Respondent nos. 12 to 14 are residents of village – Pachtakki, P.S. Bairagania, District – Sitamarhi. (Respondent Nos. 11 to 14 are purchaser from Respondent No. 1) … Defendants 3rd Parties / Respondents 3rd Set. ….. Defendants / Respondents. ----------- 11/ 31.08.2010 Heard the learned counsel for the parties. This miscellaneous appeal is directed against the order dated 06.07.2007 passed by Sri S. C. Shrivastava, Sub-Judge Ist, 2 Sitamarhi in Title Suit No. 01 of 2005 by which he has rejected the petition for injunction filed by the appellant holding that there is neither prima facie case nor balance of convenience. The appellant is the plaintiff. The appellant filed a suit for declaration that the entire transaction made by the defendant no. 1 and 2 in favour of the different defendants are illegal, inoperative and fraudulent and not binding on the plaintiff. The case of the plaintiff is that one Shivjee Prasad died issueless on 13.07.2004 and the said Shivjee Prasad executed a Will in favour of this appellant, who is happens to be the nephew of the deceased on 04.07.2004 with regard to the 1.80 acres of the land mentioned in Schedule I of the plaint and the case of the plaintiff is that the defendant no. 1 and 2, who are the wife and sister of the deceased has hurriedly executed several sale deed with regard to the land of Schedule I of Shivjee Prasad to disclaim the claim of the appellant and has also filed the suit. In the said suit a petition for injunction was filed by plaintiff appellant for restraining the defendants from selling the land or even restraining the defendant from changing the physical features over the land though claims to be in possession. The learned court below taking into consideration the fact and circumstance of the case held that plaintiff has got no prima facie case and has not filed any document of possession or has been in possession whereas defendant sold the land and purchaser are in possession and hence held that there is neither balance of convenience nor irreparable loss in favour of plaintiff. 3 Learned counsel for the appellant, however, contended that at the time of filing the suit, the sale deed and gift deed was for the part of the suit land only but subsequently the entire suit property has been gifted and sold away by sale deed by the wife and sister of the deceased respectively and hence prayer of injunction restraining the defendant from executing a sale deed is of no consequence hence, prayed that the purchaser or the transferee by the wife and the sister of deceased be restrained from making any construction or changing the physical feature of the land. However, taking into consideration the fact that the plaintiff is claiming the land by virtue of the Will alleged to have been executed in his favour by the deceased Shivjee Prasad. However, mere execution of a Will does not create a right and unless a Will is probated or Letter of Administration granted the plaintiff does not get a right over the land. However, it is not the case of the plaintiff to have obtained a Letters of Administration or a Probate. However, assertion is that the probate of Will is at the final stage of final hearing. However, unless the plaintiff gets a letter of administration or probate he does not have a right over the property and hence no prima facie case is made out. So far the balance of convenience concerned, if the injunction is granted and the plaintiff lose the probate case then restraining of the defendant may not be compensated. However, if the plaintiff succeeds he may have the remedy to get property and even mean profits and hence from the perusal of the impugned order it is apparent that 4 the lower court has quite considered the case of the parties as well as the prima facie case, balance of convenience and irreparable loss not found in favour of appellant and had rightly rejected. Hence, I do not find any merit in this appeal. This miscellaneous appeal is dismissed. Kundan (Gopal Prasad, J.)