IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.360 of 2011 Sheo Narayan Tiwary, Son of Late Chandradeo Tiwary, Resident of Village – Barki Nainijor, P.S. – Brahmpur (Nainijor), District – Buxar. ------ (Opp. Party – Defendant) Appellant Versus 1. Bihari Tiwary. 2. Jai Prakash Tiwary, Son of Late Tejnarayan Tiwari. 3. Janardan Tiwary, Son of Late Tejnarayan Tiwari. All are resident of Village – Barki Nainijor, P.S. – Brahmpur (Nainijor), District – Buxar. ----- (Petitioners- Plaintiffs) --- Respondents ---------------------------------- 3 02.12.2011 Heard Sri Kamla Prasad Rai who was assisted by Sri Satya Ranjan Sinha, learned counsel for the appellant. The present appeal under Order 43 Rule 1 (r) of the Code of Civil Procedure, has been preferred against an order dated 25.03.2011 passed by Additional District Judge, Fast Track Court III, Buxar in Title Suit No. 02 of 2006 whereby injunction petition filed by the appellant who was defendant before the court below has been rejected. Learned counsel for the appellant has argued that though initially probate case was filed but subsequently it was considered as Title Suit and the learned court below even thereafter while rejecting the injunction petition has considered that it was only a probate case and no right, title or possession over the property was involved. Short fact of the case is that respondents who are sons of brother of the appellant had filed a probate case on the basis of a ‘sada deed’ of will which was executed by Hari Narain Tiwary/brother of the appellant in favour of the respondent. Hari Narain Tiwary was issueless. 2 The appellant had appeared in the probate case and objections were raised and thereafter the probate case was converted into Title Suit No. 02 of 2006. The appellant apprehending that the plaintiff may start constructing building over the suit land filed a petition under Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure for grant of injunction. The learned court below by the impugned order has dismissed the same. From the impugned order as well as pleading there is no material to satisfy that the appellant was going to suffer any irreparable loss in case of rejection of injunction petition. Moreover, the suit is not in relation to declaration of title but only question involved in the suit is as to whether the will was properly executed in favour of plaintiffs/Respondents or not. After going through the material on record, the court is of the opinion that while rejecting the injunction petition the court below has committed no error. The appeal stands dismissed. Praful ( Rakesh Kumar, J.)