JUDGMENT G.D. Dubey, J. - This appeal has been preferred against the judgment and order of III Addl. District Judge, Dehradun. The learned trial court has issued a temporary injunction restraining the respondent No. 1 from interfering in the common use and enjoyment of the petitioner Nos. 1 and 3 in a common passage measuring 20' x 200' leading from a 50' wide road from Nainjhawar to Aryanagar crossing to plot No. 124 in Deva Singh Park Swaroopnagar, Kanpur which was shown by green colour and marked with letters A.B.C.D. and E in the plan annexed to the affidavit accompanying the application for temporary injunction. 2. A petition for probate was filed by the respondent first set against the defendant-appellant and respondents 4 to 14 in the Court of District Judge, Dehradun on 6th of October, 1989. The property in dispute in this case was the plot No. 126 and 124 situated in Swaroop Nagar, Kanpur. The petitioner-respondent first set has alleged that Preetam Singh the last testator died on 11th March, 1969 at the age of 60 years. The testator had acquired various immovable properties and movable assets in the shape of some shares of M/s. Singh Engineering Works Private Ltd., Kanpur. The testator had executed a Will on 5th February, 1969. By this Will he has bequeathed his property movable and immovable to the various member of his family i.e. his wife, sister and nephew. After the death of Preetam Singh some dispute had started amongst the members of testator's family and the beneficiaries regarding the distinction of the assets of the deceased. Hence the necessity to obtain probate arose. It was stated that the testator had died at Kanpur. He had no fixed place of residence. Mostly he lived at Mussoorie. Smt. Bhagwant Kaur wife of Preetam Singh had died 10.11.82 leaving behind a Will dated 29.12.1977 which has been registered in office of Sub-Registrar New Delhi. Smt. Bhagwant Kaur had died issueless. It was further stated that the deceased Preetam Singh had property at Mussories at the time of his death within the jurisdiction of district Courts of Dehradun. Consequently it was urged that the court at Dehradun has jurisdiction to grant the probate. 3. Along with the application for probate an application for temporary injunction was also moved same day. It was further stated that the deceased Preetam Singh had property at Mussories at the time of his death within the jurisdiction of district Courts of Dehradun. Consequently it was urged that the court at Dehradun has jurisdiction to grant the probate. 3. Along with the application for probate an application for temporary injunction was also moved same day. In this petition it is alleged that the respondent No. 4 had acted upon the Will. Consequently he had sold half of the plot No. 126 situated in Sardar Deva Singh Park, Swaroop Nagar Kanpur to Sardar Joginder Singh by virtue of sale-deed dated 23.11.1970. In this sale-deed it was stated that a 20' wide and 200' long passage leading from 50' wide road from Nainjhawar to Aryanagar crossing to plot No. 124, Deva Singh Park, Swaroop Nagar shall exist. The plot No. 124 is said to have fallen to the share of petitioner No. 3 to the probate i.e., Sardar Alam Singh and respondent No. 1. It was alleged that this passage was only passage leading to plots No. 124. According to the petitioner the respondents were intending to close down the said passage and cause interference in the use and enjoyment of the passage. The respondent No. 4 Sardar Kripal Singh on behalf of himself and other respondents is said to have threatened Aspan Singh and Alam Singh petitioners that they shall not permit the above petitioners to use the said passage unless Aspan Singh and others join their illegal design. It was alleged that respondents 11 and 12 had left India. The respondent Nos. 1 and 8 were likely to leave India. They were searching customer who may buy their property. Consequently it was also urged that if the respondent succeeded in transferring their share in the property than the Will create a multiplicity of suit and also affect the interest of the petitioner in the above passage leading to Plot No. 124. On these grounds a prayer has been made to restrain the respondents from removing, damaging, alienating or transferring the properties mentioned in the Schedule B, C and D to the probate petition. 4. Only opposite party No. 5 Sardar Harbhanjan Singh had contested the injunction application at the initial stage. Other opposite parties had not been served by then. This contesting opposite party (appellant) had denied the existence of passage. 4. Only opposite party No. 5 Sardar Harbhanjan Singh had contested the injunction application at the initial stage. Other opposite parties had not been served by then. This contesting opposite party (appellant) had denied the existence of passage. He also denied that Will as alleged by the petitioner was ever executed by Sardar Preetam Singh. This Will was alleged to be a fabricated document. The contesting appellant denied that property mentioned in Schedule B, C, and D had fallen to the share of the petitioners. Appellant had challenged the jurisdiction of the Trial court. The right of petitioner to present the petition for probate was also challenged on the ground that they were neither executor nor trustees of late Preetam Singh. The appellant also stated that in a previous instituted suit the petitioner had stated that Sardar Preetam Singh has not executed any Will. In this circumstances it has been alleged that the petitioner can not base his claim on another Will and their claim was alleged to be barred by the principle of res-judicata. 5. The petition had been transferred to the Court of III Addl. District Judge Dehradun. The learned III Addl. District Judge had found that the petitioner had a prima facie case and balance of convenience lay in their favour. It was also held that petitioners shall suffer an irreparable loss if the injunction is not granted in the matter. On these findings the impugned order was passed. 6. The learned counsel for the appellant urged that the only property in Dehradun namely, "Grey Castle" of Mussoorie had been sold before the institution of the suit. Thus on the date of petition no property mentioned in the Will was present at Mussoorie. In these circumstances the District Judge at Dehradun had no jurisdiction to entertain the petition. Besides it was also urged that there was no justification to pass the impugned order for there was no urgency in the matter. At the best petitioner had right of easement of necessity. Such right of easement could be enforced only by way of suit. Our attention was drawn to Sections 269 and 247, of the Indian Succession Act. It was contended that under these sections the injection could not be granted. The Section 269 does not apply to the parties. Under Section 247 only pendente lite administrator could be appointed. Such right of easement could be enforced only by way of suit. Our attention was drawn to Sections 269 and 247, of the Indian Succession Act. It was contended that under these sections the injection could not be granted. The Section 269 does not apply to the parties. Under Section 247 only pendente lite administrator could be appointed. It has been urged that even under Section 268 of Indian Succession Act the provision of Order 39, Rules 1 and 2 of the Code of Civil Procedure could not be used as it relates to suit only. It has been urged in alternative that on material on record the injection regarding the passage could not be passed in the matter. According to the learned counsel for the appellant the lower court had misread the evidence on record. 7. The counsel for the respondent urged that if the very passage is blocked then property can be used at all. Secondly it was urged that the lower court had jurisdiction to grant injunction for the protection of right of way leading towards the disputed property. Any interference in the passage and closure will render property in question useless. The impugned order amounts to preservation of the property and therefore, the lower court had jurisdiction to issue the injunction. It was urged that in order to confer jurisdiction to the lower court the only thing which was required to be considered was whether the deceased had any property at Mussoorie at the time of his death. Since the `Grey Castle' has been sold in 1985 and Preetam Singh died in 1969 then it is obvious that testator had property within district Dehradun at the time of his death. Thus the probate petition could be filed in Dehradun under Section 270 of Indian Succession Act. It is for the petitioner to choose their own forum of redress. 8. Section 270 of the Indian Succession Act referred to as Act hereinafter reads as under :- 270. Thus the probate petition could be filed in Dehradun under Section 270 of Indian Succession Act. It is for the petitioner to choose their own forum of redress. 8. Section 270 of the Indian Succession Act referred to as Act hereinafter reads as under :- 270. Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator intestate, as the case may be, at the time of his decree had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge." 9. It is no doubt, true that according to this section the District Judge within those jurisdiction the estate of deceased person at the time of his death exists has the jurisdiction to grant the probate or letter of administration. Therefore, technically speaking the Court at Dehradun had the necessary jurisdiction to grant a probate or letters of administration, for in the year 1969 at the time of his death deceased `Preetam Singh' possessed, immovable property namely 'Grey Castle' at Mussoorie which lies within the territorial limit of district Dehradun. However, at the time of the presentation of the probate petition before the District Judge, Dehradun the Grey Castle was no longer in existence, which had been sold away in 1985. In such a situation there appears to be no justification to institute the proceeding at Dehradun when ail the property to be administered by probate by the executor of the Will exists at Kanpur and parties also reside there. 10. The learned counsel for respondent had drawn our attention to Section 269 of the Act also. It was urged that according to this section the District Judge had jurisdiction to pass suitable order for protection of the property. It was also urged that according to Section 268 of the Act proceeding in relation to the granting of probate were governed by the provisions of the Code of Civil Procedure, 1908. These two sections of the Act read as under:- "268. It was also urged that according to Section 268 of the Act proceeding in relation to the granting of probate were governed by the provisions of the Code of Civil Procedure, 1908. These two sections of the Act read as under:- "268. The proceedings of the Court of the District Judge in relation to the granting of probate, and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908." 269 (1). Until probate is granted of the Will of a deceased person, or an administrator of his estate is constituted the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, appoint an officer to take and keep possession of the property. (2) This section shall not apply when the deceased is a Hindu, Muhammedan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate." 11. The learned counsel for the appellant drew our attention to sub-section (2) of Section 269. It was urged that according to this sub-section the Section 269 was not applicable because the deceased was a Sikh. We agree with this contention of the learned counsel for the appellant. 12. The learned counsel for the respondent had relied upon Mrs. Maqdelene Rago v. P.F. Rego AIR 1933 Nagpur 173 , in support of his argument that orders could be passed by a District Judge in respect of property situate outside the limits of the province. This was a case where the parties were Christians and sub-section (2) of Section 269 was not applicable to them. Thus, this case is not applicable to the facts of the present case. As pointed above Section 269 of the Act is not applicable to the present matter. 13. It has been argued in the alternative that under Section 268 of the Act the proceedings of probate are to be regulated by the Code of Civil Procedure, 1908. Thus, this case is not applicable to the facts of the present case. As pointed above Section 269 of the Act is not applicable to the present matter. 13. It has been argued in the alternative that under Section 268 of the Act the proceedings of probate are to be regulated by the Code of Civil Procedure, 1908. It was urged that in view of Neordebarani Devi v. Chamatkarini Devya, AIR 1915 Calcutta 565, and in the Goods of Stanly Austin Cardigan Martin, AIR 1939 (3) Calcutta 642, cases the District Judge has jurisdiction to grant an injunction under his inherent powers or under the provisions of Order 39, Rule .1 of the Code of Civil Procedure. The case law cited above by the learned counsel for the respondent are not applicable to the present matter. The case of Nerodabarani Devi was governed by Prbate and Administration Act (5 of 100) and Sec, 25 (8), Judicature Act of 1873. It was held in this case by a Division Bench of Calcutta High Court that where probate matter becomes contentious, it becomes a suit. The petitioner becomes the plaintiff and the contending party a defendant, it was also held in alternative that in any way provision of Rule 7 of Order 39 of the Code of Civil Procedure was applicable. We must point out at the outset that the injunction application had been moved on the very day of moving the probate petition. The matter had not become contentious by that date. Hence the provisions of Rule 1, or 2 or 7 of Order 39 of the Code of Civil Procedure were not applicable. Rule 7, of Order 39 also applies to the matter arising in a suit. The matter in question had not become a suit by the date of order. In AIR 1939 Calcutta 642, it has been observed that in a proceeding of probate the provision of Order 39, Rule 1 of the Code of Civil Procedure are not applicable. It was held that Probate Court has inherent jurisdiction to grant injunction if proper case is made out. 14. In AIR 1939 Calcutta 642, it has been observed that in a proceeding of probate the provision of Order 39, Rule 1 of the Code of Civil Procedure are not applicable. It was held that Probate Court has inherent jurisdiction to grant injunction if proper case is made out. 14. Even if the contention of the learned counsel for respondent is accepted that the Probate Court had power under inherent jurisdiction or Rule 7, of Order 39, C.P.C. to grant an injunction then he will have to satisfy the court that he has got such a case in which the inherent jurisdiction etc. of court should be invoked. The Act complained of by the petitioner-respondent in the injunction petition was that the appellant was trying to close the 20' passage left in plot No. 126 situated in Sardar Deva Singh Park, Swaroop Nagar, Kanpur. It has been rightly pointed out by the learned counsel for the appellant that the right sought to be protected by way of injection could be either easement of necessity or easement by grant. The violation of such an elementary right does not amount to destruction of the property. It may only inconvenience the dominant tenement in the user of certain property to which the easementary right is annexed. In such matters the District Judge exercising probate jurisdiction could not pass any order. 15. The petitioner-respondent was also required to show his bona fides as to why he choose to move the application for probate in the court at Dehradun and on the same day had moved the injunction application for restraining the appellant and other from interfering in exercise of right of way of the respondent over 20' passage in plot No. 126. There is no satisfactory explanation for this conduct nor any such satisfactory explanation was put forward before us. It was only stated by the learned counsel for the respondent that it was convenient for the petitioner to move the District Judge, Dehradun. We do not find that it was at all convenient for the parties to litigate the probate proceeding at Dehradun. Annexure 1 to the miscellaneous application under Section 151, C.P.C. is copy of the probate petition. This probate petition shows that only petitioner No. 1 Sardar Aspan Singh was shown as resident of Inder Niwas Mussoorie. The petitioner. We do not find that it was at all convenient for the parties to litigate the probate proceeding at Dehradun. Annexure 1 to the miscellaneous application under Section 151, C.P.C. is copy of the probate petition. This probate petition shows that only petitioner No. 1 Sardar Aspan Singh was shown as resident of Inder Niwas Mussoorie. The petitioner. No. 2 Smt. Manoranjan Kaur and petitioner No. 3 Sardar Alam Singh were shown as resident of 7/113, Swaroop Nagar, Kanpur. In the memo of appeal filed before this Court the present residence of Sardar Aspan Singh has been shown as 7/113 Swaroop Nagar, Kanpur. It has not been stated in the Counter affidavit filed by Sardar Aspan Singh that his present residence shown in the memo of appeal is incorrect. Thus, it transpires that all the parties to the probate petition were residing at Kanpur. It would have been convenient for the parties to move the Court at Kanpur for grant of the probate. Since no satisfactory explanation is coming from the side of the petitioner-respondent about the filing of the probate petition at Dehradun. We find that there was no justification to invoke even the inherent jurisdiction of the court. 16. In order to invoke the inherent jurisdiction of the Court the parties must come with clean hands. The proceeding of probate are for limited purpose. This can not be equated with a proceeding in a suit. Under Section 269 of the Act or under the inherent powers of the court, the court could exercise the power only for the protection of the property. The protection of the right of a passage through a certain plot as contained in impugned order does not amount to protection of the property. 17. In the case of Nerodebarani Devi (supra) it was observed by the Calcutta High Court that the probate proceeding is not a suit with respect to property it involves question of representation of estate, hence no question of title is to be gone into. In the instant matter intricate question is involved whether the petitioner have got right of way through the passage alleged by them. It was a question connected with title. Such a question cannot be gone into in the probate proceeding. In the instant matter intricate question is involved whether the petitioner have got right of way through the passage alleged by them. It was a question connected with title. Such a question cannot be gone into in the probate proceeding. The facts narrated above clearly go to show that the intention of the petitioner was not to obtain a probate but to obtain an injection at the very out set securing their right of way through plot No. 126. 18. Even exercising the inherent jurisdiction the question of balance of convenience has to be gone into. It was pointed put by the learned counsel for the appellant that even if the petitioner respondent do not get a right of way through Plot No. 126 they will have access to plot No. 124 from other route. Our attention was drawn to maps appended to the sale-deed in respect of plot No. 126 and annexure 4 to supplementary affidavit, for the purpose of showing that alternative passage is available. Hence the easement right is not available to the respondent. We do not intend to express any opinion in the matter for it may affect the parties in a regular suit. 19. Our attention was also drawn to some photographs annexed to the supplementary affidavit dated 1.11.1989 to show that the alleged passage has been closed. We do not express opinion on this fact also for the reason mentioned in the previous paragraph. However from the circumstances mentioned above it transpires that the respondent will have to litigate a suit. We have been informed that a suit is pending in the Civil Court at Kanpur. Copy of the plaint of such suit 730 of 1985, Smt. Daya Kaur and 2 others v. Sardar Aspan Singh and 4 others is annexure CA-7 to the counter affidavit of respondent. In this suit the land of Deva Singh Park of Kanpur is under litigation. In this view of the matter also there appears to be no justification to pass any injunction order in the probate matter. 20. The lower court has referred to a 18' wide passage leading to plot No. 124 in a certain plot allegedly donated to Ram Garhiya Sabha, Kanpur. It was held by the lower court that at present there is no evidence that while donating the land to Ram Garhiya Sabha any passage was left for the petitioner. 20. The lower court has referred to a 18' wide passage leading to plot No. 124 in a certain plot allegedly donated to Ram Garhiya Sabha, Kanpur. It was held by the lower court that at present there is no evidence that while donating the land to Ram Garhiya Sabha any passage was left for the petitioner. However, the lower court had considered this fact that there was a probable alternative passage. The existence of the passage in dispute is seriously disputed by the appellant. However, at this stage the existence of alternative route to the petitioner leading to plot No., 124 can not be ruled out. Thus prima facie the existence of right of way to the petitioner is not established. The question of any irrepealable injury also does not arise. The balance of convenience also does not exist in favour of the petitioner when prima facie it transpires from photographs that the passage in question stands closed at the moment. Hence only remedy open to the petitioner-respondent would be to get the said passage opened by way of a suit. 21. An objection has been raised by the learned counsel for the petitioner-respondent that this appeal was not maintainable. Our attention was drawn Smt. Rajeshwari Mishra and another v. Markandeshwar Mahadeo Trust and others, AIR 1965 Alld. 211, wherein it was held that under Section 299 of the Act only an order made by the District Judge by virtue of the powers conferred upon him by Act is appealable. Our attention was also drawn to Namagiri Ammal v. T. Subha Rao, AIR 1949 Madras 45, wherein it was observed that in probate proceeding no property is in dispute and therefore, an application for injunction under Order 39, Rule 1, is not maintainable. It was urged that in view of these case laws the appeal is not maintainable. 22. We do not agree with the above contention. The lower court had passed the order under Rule 1 of Order 39 of the Code of Civil Procedure. According to Section 256 of the Act, in the probate proceedings, Code of Civil Procedure is applicable. Since the lower court had passed the order under Order 39, Rule 1, Code of Civil Procedure, the appeal would be consequently maintainable under sub-rule (1) to Rule 1 of Order 43, Code of Civil Procedure. According to Section 256 of the Act, in the probate proceedings, Code of Civil Procedure is applicable. Since the lower court had passed the order under Order 39, Rule 1, Code of Civil Procedure, the appeal would be consequently maintainable under sub-rule (1) to Rule 1 of Order 43, Code of Civil Procedure. If a court has passed an order under certain provision, then the aggrieved party will have a right of appeal under provision providing appeal against such an order. The hands of Appellate Court cannot be stopped from interference on the basis that a certain one and in a proceeding arising under the Act is not appealable under Section 299 of the Act. The preliminary objection raised by the learned counsel for the respondent has no force at all. 23. For the foregoing reasons the impugned order cannot be sustained. The appeal is allowed and the judgment and order of the lower court are set aside. The application for temporary injection is rejected. There shall be no order as to costs.