JUDGMENT Hon’ble Jagdish Bhalla, J.—The instant First Appeal has been preferred under Section 104 read with Order 41 Rule 1 (r) of Civil Procedure Code against the order dated 18.1.2006 passed by Civil Judge Senior Division, Lucknow, rejecting the application Ga-6 filed under Order 39 Rule 1 and 2 of C.P.C. for temporary injunction in regular suit No. 928 of 2005, Kunwar Jaini Singh v. M/s Viraj Constructions Pvt. Ltd. and others. 2. Factual matrix is as under : The appellant-plaintiff filed a suit for permanent injunction restraining the respondents-defendants or their agents claiming or acting on their behalf from either dispossessing the appellant-plaintiff or by any means causing interference over the peaceful enjoyment of proprietary possession of the appellant-plaintiff over the property in suit, described in the plaint. 3. With the aforesaid ends and view the application 6-C for temporary injunction was filed before the learned trial Court stating that the appellant was under threat of dispossession from the land referred to in the plaint situated in the city of Lucknow; originally the Nazul Officer Lucknow granted perpetual lease of intra Municipal Nazul land situated in Mohalla Butler Ganj, P.S. Hazratganj, Lucknow in respect of Nazul land comprising Khasra Plot No. 99/11 measuring about 9 Bigha, 2 Biswas, 16 Biswansi, 8 Kachwansi under the indenture dated 2.8.1917 in the name of Sardar Nihal Singh. 4. Sardar Nihal Singh being a duly enlisted Taluqedar in Part V of the Oudh Estate Act and was governed by the law of primogeniture under the said Act therefore, on his death his eldest son Sardar Shamsher Singh became the Taluqedar of the estate known as Bhira Govindpur Estate, Raebareli. The genealogical table is reproduced as under : Sardar Shamsher Singh (Died on 28.11.1994) Kunwar Daljit Kaur Indra Jeet Kaur Brijendra Singh (died on (died on 2.9.1995) September 1993) Married in 1960 Shiv Om Singh Jaini Singh (husband) Narendra Kumari (wife) (husband) Princi Pinki (1996 Madhu Singh alleged to be wife & contested for herself and sons Mohit Singh and Shobhit Singh) (19.2.1996-Succession Certificate issued in favour of Narendra Kumari and Neeta Kumari (Annexure No. 11, Page 144) Neeta Kumari Surendra Jagjit Raj Singh Singh alias Singh alias alias Goldie Vineet Amit 5. It is also relevant to mention that Sardar Nihal Singh S/o Capt. It is also relevant to mention that Sardar Nihal Singh S/o Capt. Gulab Singh is alleged to have executed a Will deed dated 25.8.1943 in favour of Sri Sardar Shamsher Singh bequeathing all the movable and immovable properties owned by him. Consequently, on account of succession to the estate, Sardar Shamsher Singh became the exclusive owner of several lands with buildings including the property in suit. The property in suit consisted of entire land covered by the lease deed dated 2.8.1917 and extensive main Kothi, several out houses and servant quarters situated at the south-western corner. The State of U.P. acquired main Kothi and land measuring 181046.178 sq. feet for construction of office, hostel, research laboratory etc., of U.P. Ganna Sansthan, Lucknow. In consequence of the aforementioned acquisitions, two portions of land left out. The first portion where a garage was maintained measuring 22,120 sq. feet behind the main Kothi and the other on south measuring 33,050 sq feet building New Berry Road on the west and Rana Pratap Marg on the South, comprised several servant quarters on its south western corner. Subsequently during the process of said acquisitions vide order dated 11.1.1988, the motor garage was acquired by the State of Uttar Pradesh for construction of training hostel of U.P. Ganna Kisan Sansthan, Lucknow. Consequently, Sardar Shamsher Singh was left with the southern portion mentioned above. He had constructed his residential house in the year 1978. The property left with Sardar Shamsher Singh was land measuring 33050 sq. feet consisting of residential house and servant quarters adjoining Rana Pratap Marg and New Berry Road. It is further averred that the servant quarters abutting Rana Pratap Marg were remodeled and was let out to Regional Psychological Center, Government of Uttar Pradesh, whereas a part of servant quarters on New Berry Road was let out to irrigation department and the remaining quarters were retained for personal use. The site condition as it were in the year 1991 is available with the site condition annexed with the plaint. 6. In due course Sardar Shamsher Singh had applied for reference under Section 18 of the Land Acquisition Act with respect to the award dated 30.1.1990, in relation to the second acquisition proceeding about rear portion of the property. The said reference was admitted as Misc. Case No. 190 of 1990 and at present pending before Nagar Mahapalika Tribunal, Lucknow. 7. In due course Sardar Shamsher Singh had applied for reference under Section 18 of the Land Acquisition Act with respect to the award dated 30.1.1990, in relation to the second acquisition proceeding about rear portion of the property. The said reference was admitted as Misc. Case No. 190 of 1990 and at present pending before Nagar Mahapalika Tribunal, Lucknow. 7. Sardar Shamsher Singh had one son and two daughters namely Kunwar Bijendra Singh, Smt. Daljeet Kaur and Smt. Inderjeet Kaur. Kunwar Bijendra Singh had proposed to contest the reference and set up a claim about the compensation on the ground that he being the grand son of Sardar Nihal Singh, was co-sharer of the property and is entitled to half share in it, but lost. 8. Sardar Shamsher Singh had left for heavenly abode on 28.11.1994. Thereafter in Misc. Case No. 190 of 1990, referred to above Kunwar Brijendra Singh moved one application for substitution on 2.2.1995 stating that he was the son and only heir of Sardar Shamsher Singh. He had not set up any claim on the basis of any Will executed by his father. No objection was filed against the application till date. Incidentally, Kunwer Bijendra Singh also died on 2.9.1995 and application by one Smt. Madhu Singh and three others as her sons from Kunwar Bijendra Singh had applied for their substitution in the case on 20.9.1995, but again claimed that she was the daughter-in-law of deceased Sardar Shamsher Singh and his grand sons only. The alleged Will was not seen the light of the day till then and no mention was made about the same. Meanwhile Smt. Madhu Singh also died. 9. On 5.12.2005 the appellant learnt that the defendants No. 3 and 4 were negotiating for transfer with stranger but since no clue could be detected till 7.12.2005, as such no action could be taken. Thereafter on 7.12.2005 it was learnt that the defendants No. 3 and 4 had executed a sale deed in favour of defendants No. 1 and 2 and anyhow he obtained the copy of the sale deed dated 28.11.2005, through which it was discovered as under : (a) It was a deed of assignment of leasehold right-cum-sale of buildings executed by the defendants No. 3 and 4 in favour of defendants No. 1 and 2. (b) The defendants No. 3 and 4 claimed title to the property only substantially on the basis of a Will dated 26.6.1991. (c) The aggregate measurement of land is 45817.70 sq. feet (the entire land left after acquisition) for a total price of Rs. 93 lacs. It was claimed that notwithstanding the fact that the Will dated 26.6.1991 was revoked and cancelled by the last Will dated 25.11.1994. The recitals in the said Will were that : “The front portion consisting of residential house constructed in the year 1978 from Tilak Marg in the East up to garage in the West, together with land was given to Shri Surinder Singh alias Goldie whereas the middle portion after the garage to the portion earlier let out to Regional Psychological Centre was given to the deponent’s sons namely Jagjeet Singh and Amit Raj Singh, whereas the rear portion adjacent to New Berry Road measuring East West about 35 feet and North South about 108 feet (3780 sq feet) consisting of the built up portion including the one originally let out to irrigation department was given to the children of Kunwar Brijendra Singh from Smt. Madhu Singh. For better appreciation of the extent and location of the portions allocated in the above said Will, a site plan was annexed, wherein the portion “CDEF” is given to Surinder Singh alias Goldie, the portion “BCFG” is given to Jagjeet Singh and Amit Raj Singh, whereas the portion “ABGH” is earmarked for the children of Kunwar Brijendra Singh”. 10. The petitioner claimed that the sale deed dated 28.11.2005 is apparently fraudulent, fabricated and manufactured by the defendants No. 1 to 4 with a view to cause wrongful loss to the appellant in spite of the fact that civil proceedings are pending in a competent Court concerning the title. The respondents-defendants have full knowledge about the title of the appellant-plaintiff. The sale-deed was forged and it refers to the area of the land as 45817.70 sq. feet instead of actual area of 33,050 sq. feet. The name of the appellant has already been mutated in the municipal records on account of his exclusive possession over the property. The defendants have deceitfully executed sale deed for the entire property although it recites that the defendants No. 3 and 4 were given only a portion of the property through the Will dated 26.6.1991. feet. The name of the appellant has already been mutated in the municipal records on account of his exclusive possession over the property. The defendants have deceitfully executed sale deed for the entire property although it recites that the defendants No. 3 and 4 were given only a portion of the property through the Will dated 26.6.1991. Thus, the sale deed dated 25.11.1994 is void and confers no title to the defendants No. 1 and 2. 11. On 8.12.2005, a few persons called upon the appellant at the behest of Sri Alok Gupta, Director of defendant No. 2 and demanded vacation of the property with the claim of its purchase. When confronted and explained the true facts, they threatened with dire consequences if the demand is not met. The respondents are continuously threatening the appellant and his family members to vacate the land. The appellant approached the local police to lodge the FIR but nothing could be done. 12. On the aforesaid contentions, prima facie case, balance of convenience and irreparable loss were pleaded before the trial Court. 13. On behalf of the respondent, defendant No. 2 contest was put in against the temporary injunction, inter alia stating that the Secretary, State for India-in-council through the Nazul Officer, Lucknow had executed a property lease dated 2nd August, 1917 of Nazul land situated at Butlerganj, P.S. Hazratganj, Lucknow. It was duly registered before the Office of the Sub-Registrar Lucknow. Sardar Shamsher Singh died on 28.11.1994 leaving behind his last Will dated 26.6.1991 and in order to ensure that the said last Will shall be duly enforced and implemented upon his death, Sardar Shamsher Singh deposited the same in the safe custody of A.D.M. (Finance & Revenue Lucknow). Upon the death of Sardar Shamsher Singh, the said Will was opened and was registered in the office of the Sub-Registrar on 26.9.1995. Upon the death of Sardar Shamsher Singh, the said Will was opened and was registered in the office of the Sub-Registrar on 26.9.1995. Late Sardar Shamsher Singh, pursuant to his aforesaid Will dated 26th June, 1991 disposed of his assets by bequeathing a small portion of the said property to his grandson, Kunwar Surinder Singh alias Goldie son of Jaini Singh (the plaintiff) and gave life interest in the entire remaining portion of the said property to his son Kunwar Shamsher Singh and upon his death Kunwar Brijendra Singh, the property stood bequeathed absolutely to Kunwar Mohit and Kunwar Shobhit Singh, defendants No. 3 and 4, sons of Kunwar Brijendra Singh born from his wife Smt. Madhu Singh. At the time of execution of the said Will, the defendants No. 3 and 4 were minors and were looked after by their mother Smt. Madhu Singh, who too is no more. 14. With the lapse of time, the State of U.P. acquired a portion of the property for construction of U.P. Ganna Kisan Sansthan and the land which was left out from acquisition is measuring 45817.70 sq. feet. On behalf of the respondents following pedigree is claimed : Sardar Shamsher Singh (Died on 28.11.1994) Kunwar Daljit Kaur Indra Jeet Kaur Brijendra Singh (died on (died on 2.9.1995) September 1993) Madhu Singh (Wife) Shiv Om Singh Jaini Singh (husband) (died on 12-9-1996) (husband) Princi Pinki Kunwar Kunwar Ruchee Mohit Shobhit Singh Singh Singh Surendra Jagjit Raj Singh Singh Singh alias alias alias Goldie Vineet Amit 15. It is relevant to mention here that the defendants No. 3 and 4 negotiated with respect to the said property and the defendants No. 1 and 2 agreed to purchase the constructions and get the leasehold rights assigned to them, to which the defendants No. 3 and 4 also agreed. Accordingly, the registered deed of assignment-cum-sale deed dated 28.11.2005 was registered before the Sub-Registrar Lucknow, through which rights of exclusive ownership and lease hold rights over the land of the said property were transferred. Defendants No. 1 and 2 claimed their exclusive possession over the property in suit and they also claimed ownership rights over the constructions existing thereon and leasehold rights in respect of the land thereof. It is further urged that the appellant is a mere stranger to the family of Sardar Shamsher Singh. Defendants No. 1 and 2 claimed their exclusive possession over the property in suit and they also claimed ownership rights over the constructions existing thereon and leasehold rights in respect of the land thereof. It is further urged that the appellant is a mere stranger to the family of Sardar Shamsher Singh. He was only married to one of the daughters of Sardar Shamsher Singh and his son possessed certain rights over a portion of the property within the property purchased by the defendants No. 1 and 2, pursuant to the last will of Sardar Shamsher Singh dated 26th June, 1991. Sardar Shamsher Singh never intended to bequeath his properties in favour of the plaintiff or his son Kunwar Brijendra Singh, but instead through his last Will made a provision of only life estate to his son, Kunwar Brijendra Singh and the rights of vested remainderdem to the defendants No. 3 and 4, the sons of Kunwar Brijendra Singh, where the property vested absolutely. Under his last Will a provision was made in respect of the constructions only in the shape of one small bungalow and 2 motor garages situated in the eastern portion of the property, in favour of Kunwar Surinder Singh alias Goldie son of the appellant. Accordingly, the plaintiff has no right or title and interest in respect of the suit property including the property left by Sardar Shamsher Singh. 16. It is contended that the alleged document dated 25.11.1994 is inadmissible, the Photostat copy of the same is wholly inadmissible in evidence and cannot be looked into for considering any right of the appellant in respect of the property in suit. 17. Sardar Shamsher Singh, a Taluqedar under Oudh State Act was not only a wealthy but intelligent person, had deep insight and fully confident about his relatives. Accordingly the last Will was executed by him on 26.6.1991, which contains not only the details in respect of his property, but also about his family members and the reasons as well as the circumstances under which the said Will was executed. Accordingly the last Will was executed by him on 26.6.1991, which contains not only the details in respect of his property, but also about his family members and the reasons as well as the circumstances under which the said Will was executed. It was kept in safe custody of the A.D.M. (Finance and Revenue) and in view of the above, the appellant was not aware about the same and got the fictitious documents manufactured for the purpose of disputing the rights of the defendants No. 3 and 4 in the said property and the same is the document alleged to be Will dated 25th November, 1994, annexed to the application under Order I Rule 10, C.P.C. 18. It is further contended that a bare perusal of the alleged Will dated 25.11.1994 would lead to show that it makes no reference to the last Will of Sardar Shamsher Singh dated 26.6.1991, which is fabricated piece of document and was prepared about three days prior to his death. It appears that the Son-in-law of Sardar Shamsher Singh is taking undue advantage of the said relationship by manufacturing the said document with an attempt to deprive the defendants No. 3 and 4, the heirs of Sardar Shamsher Singh to succeed to his properties. The execution of each and every part of the alleged Will dated 25.11.1994 appears to be a fictitious document and confers no right upon the appellant. Consequently, the appellant has got no prima facie case and balance of convenience also does not lie in his favour and there will be no irreparable injury in the event of rejection of his injunction application. 19. Defendants No. 1 and 2 being the bonafide purchasers for valuable considerations, in good faith, without notice in respect of the property described in the Schedule of the property in the accompanying application for temporary injunction and being its exclusive owner in possession, are legally entitled to a temporary injunction order restraining the plaintiff and his agent from interfering with the exclusive rights of peaceful possession and ownership of the defendants No. 1 and 2 over the said property. 20. It was further urged that the alleged Will dated 25.11.1994 is not only clothed with suspicious circumstances but also apparently prepared fraudulently by the plaintiff. 20. It was further urged that the alleged Will dated 25.11.1994 is not only clothed with suspicious circumstances but also apparently prepared fraudulently by the plaintiff. The two sons of Smt. Madhu Singh, pursuant to the said Will dated 26.6.1991 remained legally entitled to the compensation, including by the law of primogenitor. The sale deed was executed by defendants No. 3 and 4 legally and properly and consequently legal right over the said property delivered to defendants No. 1 and 2 was a legal transaction. Therefore, the appellant has no prima facie case and the balance of convenience also does not lie in his favour. Accordingly, application is devoid of any merit and is liable to be rejected. 21. After hearing the submissions of the parties, learned trial Court rejected the application for injunction on 18.1.2006. Aggrieved by the aforesaid order the instant appeal has been filed inter alia on the following grounds : (1) That the Will dated 25.11.1994 executed by Late Sardar Shamsher Singh in favour of the appellant is not suspicious for flimsy and untenable grounds as there is no requirement for compulsory registration of Will. Accordingly the Will cannot be doubted to be suspicious. (2) That the execution of the Will by Shamshar Singh three days before his death is also not a circumstance to throw any suspicion. (3) That since the Will dated 25.11.1994 is the last Will of the testator, it obviously supersedes all other earlier Wills and the learned trial Court erred in suspecting the Will for the reasons that the earlier Will dated 26.6.1991 was not mentioned. (4) That it is quite normal that change do take place in subsequent Wills, even in respect of beneficiaries, therefore, this could not be a circumstance to throw suspicion on the Will dated 25.11.1994. (5) That the exclusion of natural heirs or a lower share has been given to them, by itself cannot be held to be a suspicious circumstance. (6) That in the application for temporary injunction while referring to mutation in his favour, the appellant always claimed possession over the property in suit. (7) That in view of the Will and possession, prima facie a case for temporary injunction was made out. (6) That in the application for temporary injunction while referring to mutation in his favour, the appellant always claimed possession over the property in suit. (7) That in view of the Will and possession, prima facie a case for temporary injunction was made out. (8) That the notice was also served upon the defendant No. 5 Special Nazul Officer prior to the filling of the regular suit and there is no violation of Section 80 of the Civil Procedure Code. (9) That since the actual possession was not denied accordingly it was not considered necessary to file any proof of possession: (10) That in case no interim order is granted, the nature of the property would be changed, thereby frustrating the very purpose of filing the suit. (11) That the trial Court also failed to appreciate that it was not necessary to make out prima facie case by establishing title. (12) That the trial Court also failed to appreciate that even Rule 1 (c) of Order 39 provides for temporary injunction if there is not threat to dispossess the plaintiff or otherwise cause injury and in the present case the matter existed beyond the threat reason. Accordingly the defendants No. 3 and 4 have no right to transfer the possession as they were neither in possession of the property in suit nor they could do so. Accordingly the impugned order dated 18.1.2006 is liable to be quashed. 22. We have heard the learned Counsel for the parties and perused the record of the appeal as well as of the lower Court. 23. Before scrutinizing the claim of the party, it would be pertinent to have a glance over the provisions of Order 39 Rules 1 and 2 of the Civil Procedure Code, which read as under : "1. We have heard the learned Counsel for the parties and perused the record of the appeal as well as of the lower Court. 23. Before scrutinizing the claim of the party, it would be pertinent to have a glance over the provisions of Order 39 Rules 1 and 2 of the Civil Procedure Code, which read as under : "1. Cases in which temporary injunction may be granted—Where in any suit it is proved by affidavit or otherwise- (a) that any property in dispute in a suit in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors, [(c)] that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,] the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging alienation sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach.—(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (3) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit." 24. (3) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit." 24. Learned Counsel for the appellant contended that the authenticity of the Will cannot be seen in the F.A.F.O. before this Hon’ble Court and the non-registration of the same does not make the Will dated 25.11.1994 to be disbelieved because under Section 18(c) of the Registration Act, the registration of the Will is optional. 25. It is further contended that the photo copy of Will dated 25.11.1994 also cannot take away any right of the appellant as it is provided under the Civil Procedure Code under Order 13 Rule 1 and Order 7 Rule 14 that upto the stage of settlement of issues, the said documents should have been filed and the documents can also be filed by leave of the Court and till the date of passing of the impugned order dated 18.1.2006, the issues were not framed nor there were settlement of issues even after passing of the impugned order. 26. It has further been urged that the original Will dated 25.11.1994 has been filed by the appellant in the Court of Civil Judge, Senior Division, Raebareli. It is further contended that the subsequent Will cannot be disbelieved in view of the judgment of the Hon’ble Apex Court in Kaivelikkal Ambunhi (Dead) by LRs. and others v. H. Ganesh Bhandary, 1995 (5) SCC 444 , relevant para 3 and 4 are reproduced as under : “3. The rules of interpretation of the Will are different from the rules which govern the interpretation of other documents say, for example, a sale deed or a gift deed or a mortgage deed or, for that matter, any other instrument by which interest in immovable property is created. While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of ‘Will’, the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails. 4. A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well-known maxim “cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est” which means that if in a Will there are two inconsistent provisions, the latter shall prevail over the earlier [See: Hammond, Re Hammond v. Treharne, (1938) 3 All ER 308]." 27. It is further urged that the last Will will prevail over the earlier Wills. In case there are two inconsistent clauses, the later shall prevail over the earlier. 28. Learned Counsel for the appellant has further urged that the learned trial Court has not considered true scope of the Will. The Will cannot be disbelieved simply because natural heirs were not included. In this context reliance has been placed on the case of Ramabai Padmakar Patil (Dead) through LRs and others v. Rukminibai Vishnu Vekhande and others, (2003) 8 SCC 537 wherein their Lordships’ has held in para 8 as under : “8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, it has been held that it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. In this case, the fact that the whole estate was given to the son under the Will depriving two daughters was held to be not a suspicious circumstance and the finding to the contrary recorded by the District Court and the High Court was reversed. In Pushpavathi v. Chandraraja Kadamba, it has been held that if the propounder succeeds in removing the suspicious circumstance, the Court would have to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part the near relations. In Rabindra Nath Mukherjee v. Panchanan Banerjee, it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly. The concurrent finding recorded by the District Court and the High Court for doubting the genuineness of the Will on the aforesaid ground was reserved”. 29. On behalf of the appellant stress has been laid that in the Will dated 25.11.1994 (Annexure 3) it has already been mentioned that except this Will, if any, other document is produced for inheritance, that would not be taken into effect, meaning thereby the Will dated 25.11.1994 was superseding the earlier Will. 30. It is submitted by the appellant that Kunwar Brijendra Singh was disowned by his father late Sardar Shamsher Singh, testator of the Will (Annexure 10 page 133), who was legally competent to do so. 31. Our attention was drawn that the learned trial Court erred in not considering the aforesaid circumstances and simultaneously has failed to appreciate that the right from the very beginning the appellant claimed right over the property and in the narration of the facts nowhere it was mentioned that the appellant was not in possession, is not correct. The appellant in Annexure 1 and also at various places in affidavit asserted his possession. The appellant in Annexure 1 and also at various places in affidavit asserted his possession. The FIR was also lodged on 8.12.2005 and the copy of the application dated 7.12.2005 to the Deputy Registrar mentioning ownership and possession was also filed as Annexures 6 and 7. Consequently the finding that the appellant was out of possession or has not claimed possession over the property in suit, is based on conjectures. 32. Learned Counsel for the appellant vehemently argued that the learned Court below disbelieved the Will dated 25.11.1994 and against the law believed the Will dated 26.6.1991, which is based on erroneous interpretation of law. The Will which was executed in 1991 cannot be treated to have been executed under Section 13 (A) of the Oudh Estate Act, 1869 for the reason that Section 13-A has clearly provided that no Taluqedar shall have power to bequeath his estate except by a Will duly executed or attested not less than three months before the death of the testator and presented for registration within one month from the date of its execution and registered whereas in the present case as is admitted to the respondent, the Will was executed on 26.6.1991 and Sardar Shamsher Singh expired on 28.11.1994 and the Will was registered on 26.9.1995 that is after more than four years of execution of the Will and after ten months of the death of the testator Late Sardar Shamsher Slngh. Accordingly in view of Section 13-A the Will submitted by the respondents cannot be treated as registered Will. Thus, the learned Court below committed a manifest error in law and in this ground, the finding is liable to be set aside. 33. Learned Counsel for the appellant has drawn our attention on Section 80 of the CPC stating that learned Court below erred in deciding that the suit is not maintainable due to non-compliance of the provisions of Section 80, CPC. It is also submitted that non-compliance of Section 80, CPC in this case cannot be presumed as the Nazul Officer, who is respondent No. 5 in the suit, is a proforma party and the same has been mentioned in para 22 of the plaint. 34. Our attention was drawn to the following judgments : “M.G. Tipnis v. Secretary, Ministry of Commerce, Union of India and others, AIR 1970 MP 5 . 2. 34. Our attention was drawn to the following judgments : “M.G. Tipnis v. Secretary, Ministry of Commerce, Union of India and others, AIR 1970 MP 5 . 2. The learned Counsel for the plaintiff made the point that in a case like this, the plaint as a whole ought not to have been rejected and the suit should have been allowed to proceed against defendants other than those to whom a notice under Section 30 of the Code had to be given. For this view, reliance is placed upon Shankarrao Balaji v. Shambihari, AIR 1951 Nag 419, Mst. Chandani v. Rajasthan State, AIR 1962 Raj 36 and Ramcharan v. Custodian Evacuee Property, AIR 1964 Pat 275 . We are inclined to think that that course could have been followed in this case. The fact, however, is that it was not adopted and the question we have to consider is what Court-fee ought to be paid on a memorandum of appeal filed against an order rejecting a plaint on the ground of non-compliance with the requirements of Section 80 of the Code. Sivananda Roy v. Janaki Ballav Pattnaik and others, AIR 1985 Orissa 197. 15. The other ground on which the plaint has been rejected as against defendant No. 4 is want of notice under Section 80, C.P.C. A notice under Section 80, C.P.C. is a condition precedent for a suit against the Government or against a public officer in respect of any act done or purporting to be done by such public officer in his official capacity. Admittedly, defendant No. 4 has been described in the cause title of the plaint as Sri Janaki Ballav Patnaik. As he is holding the office of the Chief Minister of Orissa, it has been so described in the cause title of the plaint. In para 9 of the plaint it has been specifically pleaded that the part played by defendant No. 4 in this matter is in his individual capacity. It is well established in law that in suit against public officer notice under this section is necessary only if the suit is in respect of any act done by such public officer, or in respect of any act purported to be done by such public officer, in his official capacity. It is well established in law that in suit against public officer notice under this section is necessary only if the suit is in respect of any act done by such public officer, or in respect of any act purported to be done by such public officer, in his official capacity. The plaint does not allege that defendant No. 4 had procured the breach of the contract by any act done or purported to have been done in his official capacity as the Chief Minister. The learned Counsel for O.P. No. 1 has argued at length that the business of the Orissa State Electricity Board is regulated under an Act and the Rules framed thereunder and the defendant No. 4 could not in his official capacity as the Chief Minister of the State, interfere in the matter of reservation of a suit by the plaintiff. I have already indicated that while considering the question as to whether the plaint should be rejected under O. 7, R. 11 C.P.C. at the stage when it has been done in this case, the Court is not entitled to look into any other materials other than those disclosed in the plaint. As already stated the plaint does not allege that the defendant No. 4 procured the breach of the contract to which the plaintiff was a party as a public officer or by any act purporting to be done in the capacity of a public officer. I am, therefore, to hold that the plaint allegations do not make out a case where notice under Section 80, C.P.C. would be pre-requisite. Non-compliance of the requirement of S.80, C.P.C., where it is necessary, may be a ground for rejection of a plaint under Order 7, Rule 11 (d) C.P.C. But this is not a case where the plaintiff can be found fault with in that behalf. I am, therefore, of the opinion that the rejection of the plaint for non-compliance of the mandatory provision of Section 80 C.P.C. is not supportable. V. Padmanabhan Nair v. Kerala State Electricity Board, AIR 1989 Ker 86 . 11. The precise question has been considered by the Karnataka High Court in Shivamurty v. Chairman, K.E. Board, ILR (1980) 1 Kant 686. The scheme of the Electricity Supply Act and the legal principles applicable have been surveyed in that decision. V. Padmanabhan Nair v. Kerala State Electricity Board, AIR 1989 Ker 86 . 11. The precise question has been considered by the Karnataka High Court in Shivamurty v. Chairman, K.E. Board, ILR (1980) 1 Kant 686. The scheme of the Electricity Supply Act and the legal principles applicable have been surveyed in that decision. The ultimate finding is that the Electricity Board is not a Government and its officers are not public officers, in the context of Section 80, CPC. The neat analysis of the legal and constitutional provisions as attempted by the learned Judge has my unreserved approval. The conclusion is : “....... inspite of the control and supervision exercised by the State Government on the funds and the activities of the Board, it cannot be held to constitute ‘Government’ for the purpose of Section 80 of C.P.C. 12. The C.P.C. does maintain the distinction between Government and State in its provisions. 0rder 27 refers to suits by or against Government or public officers in their official capacity. Rule 8B gives the definition of the Government and Government Pleader. That is not particularly helpful inasmuch as it only bring out the distinction between the Central Government and the State Government and the cause of action against the one or the other. Ss. 84 to 87B contain references to State. Section 79 specifically states that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be in the case of a suit by or against a State Government, the State. To describe the Kerala State Electricity Board as the State in a suit filed against it, would be totally inapposite. Equally jarring would be the position when a Government Pleader could take notice or act on behalf of the Electricity Board, pressing into service the provisions of Order 27 dealing with suit by or against the State Government. 13. Equally unsustainable is the view taken by the Courts below about the scope and ambit of the term public officer’, as occurring in Section 80, C.P.C. and defined in Section 2 (17). As noted earlier, the only clauses which could have any relevance in the present context are clauses (e) to (h). An Assistant Engineer of the Electricity Board is not one empowered to place or keep any person in confinement as visualised in Cl. (e). As noted earlier, the only clauses which could have any relevance in the present context are clauses (e) to (h). An Assistant Engineer of the Electricity Board is not one empowered to place or keep any person in confinement as visualised in Cl. (e). He is not an officer of the Government entrusted with the duty such as the prevention of offences as indicated in Cl. (f). Nor is he an officer to whom the duty has been assigned as referred to in Cl. (g), on behalf of the Government, or affecting the pecuniary interests of the Government or doing any act in relation to or for the protection of the pecuniary interests of the Government, as visualised in Cl. (g). An Assistant Engineer is not an officer in the service or pay of the Government nor one remunerated by fees or commission as indicated in Cl. (h). Shivamurthy’s case (ILR 1980 (1) Kant 686) (supra) states : “Thus, the officers of the Board are appointed by the Board and not by the State Government and their salary is paid by the Board. They are not in the service or pay of the Government. They are in the service of the Board and are paid by the Board. Further, the Officers of the Board being in the services of the Board, cannot be said to perform any of the duties on behalf of the Government as enumerated in Cl. (g) of Section 2(17) of the C.P.C. Thus, the officers and the employees of the Board cannot be held to be ‘public officers’ as defined in Section 2(17) of the C.P.C." Siya Nand Singh Tyagi v. Smt. Shashi Prabha Sharma and others, [(1996) 2 UPLBEC 1203 23. District Inspector of Schools, defendant No. 4 was made proforma defendant, which is evident from paragraph 14 of the plaint, Annexure ‘1’. No relief was sought against him nor his action or order was challenged. Consequently no notice should have been given to a proforma defendant against whom no relief was sought. The plea that the suit is bad for want of notice under Section 80 of the Code of Civil Procedure could be taken by the defendant No. 4, but this defendant did not contest the suit. This plea is hardly available to the Manager or the Managing Committee of the School or to the appellant. Mrs. The plea that the suit is bad for want of notice under Section 80 of the Code of Civil Procedure could be taken by the defendant No. 4, but this defendant did not contest the suit. This plea is hardly available to the Manager or the Managing Committee of the School or to the appellant. Mrs. Maniluxmi Patel and another v. Hindusthan Co-operative Insurance Society Ltd. and another, AIR 1962 Cal 625. 23. In the instant case no wrongful act of the Union of India is complained of in the plaint. No cause of action against the defendant No. 2 has been alleged. No relief has also been claimed against the defendant No. 2. In these circumstances it seems to me there was no scope for service of notice under Section 80 of the Code of Civil Procedure”. 35. On the strength of these decisions it has been argued that notice under Section 80, CPC is necessary in those cases only if the suit in respect of any act done or purported to be done by a public officer in his official capacity, is filed. It is further urged that the bundle of facts disclosed in the plaint do not aver any wrongful act. Therefore, no cause of action was stated against the public officer. Accordingly, in the given circumstances it was redundant to give notice under Section 80, CPC. 36. The learned Counsel for the appellant has referred the averments of the plaint by stating that the cause of action arose only against defendants No. 1 to 4 as mentioned in paragraphs 15, 16, 19, 21, 22 and 23 of the plaint and no relief was sought against the defendant No. 5. Thus, in the given circumstances, there is no probative value of giving notice under Section 80, CPC. nor this Section is applicable in the present case. Further, no relief was sought against the Government Official. Accordingly, on this ground the impugned order is erroneous. 37. Our attention was further drawn to the provisions of Order 39 Rules 1 and 2, C.P.C., wherein three essential ingredients have to be seen before grant or refusing temporary injunction, which are : (i) Prima facie case (ii) Balance of convenience (iii) Irreparable loss 38. Learned Counsel for the appellant has urged that the learned Court below erred in attaching implicit reliance over the Will dated 26.6.1991. Learned Counsel for the appellant has urged that the learned Court below erred in attaching implicit reliance over the Will dated 26.6.1991. Even if that Will is accepted even then defendants No. 3 and 4 could not have sold the whole property. The appellant has also submitted that the document regarding possession has already been annexed alongwith the interim relief application, consequently on this ground alone the sale deed executed by defendants No. 3 and 4 cannot be taken into consideration and the appellant is entitled to claim prima facie case in his favour. 39. To give the strength in establishing the prima facie case, it has been urged that respondents No. 3 and 4 are the sons of Late Madhu Singh. They are not legal heirs of Late Sardar Shamsher Singh. Kunwar Brijendra Singh son of Late Sardar Shamsher Singh was married to Smt. Narendra Kumari in the year 1960. Smt. Madhu Singh was never wedded to Kunwar Brijendra Singh. Consequently, respondents-defendants No. 3 and 4 cannot be treated as legal heirs of Sardar Shamsher Singh. In the year 1996 Smt. Madhu Singh contested the succession case against Smt. Narendra Kumari and her daughter Neeta Kumari, but did not succeed and the Succession Certificate was issued in the name of Smt. Narendra Kumari etc. Smt. Madhu Singh failed to produce registered Will dated 26.6.1991 in the succession case. 40. Learned Counsel for the appellant further argued that balance of convenience is in favour of the appellant and he is enjoying the property and the finding to the effect that the balance of convenience is not in favour of the appellant and no irreparable loss will be caused, has been recorded completely ignoring the fact that the appellant is in possession and has been in occupation of the house for the last 32 years. Consequently, the Will dated 25.11.1994 is in favour of the appellant and even in the Will dated 26.6.1991 major portion was given to the sons of the appellant, but the respondents-defendants No. 3 and 4 have illegally sold the whole property including share of the appellant, which clearly established that the appellant, has a prima facie case and if the appellant is dispossessed, irreparable loss will be caused to him. 41. Respondents have supported the impugned order. 41. Respondents have supported the impugned order. On behalf of the respondents it has been urged that the learned Court below has correctly dismissed the application for injunction. There is hardly any occasion to interfere with the findings. It has also been urged on behalf of the respondents that the registered Will executed by Sardar Shamsher Singh dated 26.6.1991, which was registered on 25.9.1995 after his death is his last Will and the photocopy of the unregistered Will alleged to have been executed by Sardar Shamsher Singh on 25.11.1994 is a forged and fictitious paper. It has no relevance with the fact in issue and the learned trial Court has rightly discarded it. 42. First contention in support of the impugned order raised by the respondents is that the learned Court below was correct in arriving at a decision that the suit was bad for want of notice under Section 80, CPC and the suit is not maintainable against Special Nazul Officer impleaded as defendant No. 5. 43. Our attention was drawn to para 23 of the plaint, wherein the cause of action has been stated to be against all the defendants. In the plaint, relief has been sought against Nazul Officer also. It is not disputed that Nazul Officer is an officer and discharges official duties, accordingly notice was required to be given under Section 80, CPC. For convenience Section 80, CPC is reproduced as under : "80. In the plaint, relief has been sought against Nazul Officer also. It is not disputed that Nazul Officer is an officer and discharges official duties, accordingly notice was required to be given under Section 80, CPC. For convenience Section 80, CPC is reproduced as under : "80. Notice—[(1)] [Save as otherwise provided in sub-section (2), no suit shall be instituted] against the Government (including the Government of the State of Jammu and Kashmir) or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of— (a) in the case of a suit against the Central Government, [except where it relates to a railway] a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway, the General Manager of that railway; (bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that Government or any other officer authorised by that Government in this behalf; (c) in the case of a suit against [any other State Government], a Secretary to that Government or the Collector of the district; and in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. [(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit : Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1). (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice- (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated."] 44. Learned Counsel for the respondents further submitted that the appellant has not taken any permission for dispensing with the notice under Section 80, CPC. Consequently, the suit was bad for want of notice under Section 80, CPC. Our attention was drawn to a celebrated Judgment of the Hon’ble Apex Court reported in 1984(3) SCC 46 , Ghanshyam Dass and others v. Dominion of India and others, wherein at paras 5, 6, 22, 23 and 24 has been held as under : "5. In the celebrated case of Bhagchand Dagadusa v. Secretary of State for India in Council, (1927) 54 IA 338, the Judicial Committee of the Privy Council held that this section is express, explicit and mandatory and it admits of no implications or exceptions. In the celebrated case of Bhagchand Dagadusa v. Secretary of State for India in Council, (1927) 54 IA 338, the Judicial Committee of the Privy Council held that this section is express, explicit and mandatory and it admits of no implications or exceptions. The words of Viscount Summer delivering the judgment of the Privy Council have become classical : Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which (inter alia) an injunction is prayed is still “a suit” within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. Considering how long these and similar words have been read throughout most of the Courts in India in their literal sense. It is reasonable to suppose that the section has not been found to work injustice, but, if this is not so, it is a matter to be rectified by an amending Act. 6. The Privy Council rejected the contention put forward before them that the section deals with mere procedure and held that the requirements of Section 80 are to be strictly complied with and are applicable to all forms of action and all kinds of relief. It further held that Section 80 imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80, the suit was not maintainable, either as to the declaration sought or injunction prayed for. 22. Sub-section (3) as inserted by Section 27 of the Code of Civil Procedure (Amendment) Act, 1976 reads as follows : 80. (3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice— (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated. 23. By sub-section (3), Parliament has brought in the rule of substantial compliance. 23. By sub-section (3), Parliament has brought in the rule of substantial compliance. The present suit would be directly covered by sub-section (3) of Section 80 so introduced if the suit had been brought after February 1, 1977. Unfortunately for the plaintiffs, Section 97 of the Amendment Act provides that the amendment shall not apply to pending suits and the suits pending on February 1, 1977 have to be dealt with as if such amendment had not been made. Nevertheless the Courts must have due regard to the change in law brought about by sub-section (3) of Section 80 of the Code introduced by the Amendment Act w.e.f. February 1, 1977. Such a change has a legislative acceptance of the rule of substantial compliance laid down by this Court in Dhian Singh Sobha Singh and Raghunath Dass. As observed in Dhian Singh Sobha Singh case, one must construe Section 80 with some regard to common sense and to the object with which it appears to have been enacted. The decision in S.N. Dutt v. Union of India case, does not accord with the view expressed by us and is therefore overruled. 24. Before parting with the case we consider it necessary to refer to one more aspect. It has frequently come to our notice that the strict construction placed by the Privy Council in Bhagchand case, which was repeatedly reiterated in subsequent cases, had led to a peculiar practice in some Courts. Where urgent relief is necessary, the practice adopted is to file a suit without notice under Section 80 and obtain interim relief and thereafter to serve a notice, withdraw the suit and institute a second suit after expiry of the period of the notice. We have to express our strong condemnation of this highly objectionable practice. We expect that the High Courts will take necessary steps to put a stop to such practice." 45. Learned Counsel has contended that compliance of Section 80, C.P.C. is a must and not giving notice would make the suit bad in law. To give strength to his contentions, learned Counsel has placed much emphasis on paragraphs 2, 4, 6 and 8 of Bihari Choudhary v. State of Bihar, 1984 (2) SCC 627 , which read as under : "2. To give strength to his contentions, learned Counsel has placed much emphasis on paragraphs 2, 4, 6 and 8 of Bihari Choudhary v. State of Bihar, 1984 (2) SCC 627 , which read as under : "2. The appellants herein are the plaintiffs in a suit instituted in the Munsiff’s Court, Bihar Sharif seeking the reliefs of declaration of title and delivery of possession with mesne profits in respect of the properties described in the plaint. The State of Bihar-the first respondent herein-is the main defendant in the suit. Prior to the institution of the suit the plaintiffs had issued a notice to the first respondent-State-under Section 80, CPC on February 18, 1969 and Exhibit 2 is a copy of the said notice. However, without waiting for the statutory period of two months, the plaintiffs instituted the suit on April 2, 1969. In the written statement filed on behalf of the State of Bihar, it was contended, inter alia, that the suit was not maintainable for want of proper notice under Section 80, CPC. This contention was upheld by the trial Court which also recorded findings against the plaintiffs on the remaining issues concerning the title to the property and their entitlement to reliefs of declaration and delivery of possession. The first appellate Court to which the matter was carried in appeal by the plaintiffs dismissed the appeal on the ground that the plaintiffs’ suit was not maintainable inasmuch as due notice under Section 80, CPC had not been given. A second appeal preferred by the appellants to the High Court at Patna did not meet with any success and it was dismissed in limine. Hence this appeal by the plaintiffs. 4. When the language used in the statute is clear and unambiguous, it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the Legislature. 6. Hence this appeal by the plaintiffs. 4. When the language used in the statute is clear and unambiguous, it is the plain duty of the Court to give effect to it and considerations of hardship will not be a legitimate ground for not faithfully implementing the mandate of the Legislature. 6. It must now be regarded as settled law that a suit against the Government or a public officer, to which the requirement of a prior notice under Section 80 CPC is attracted, cannot be validly instituted until the expiration of the period of two months next after the notice in writing has been delivered to the authorities concerned in the manner prescribed for in the section and if filed before the expiry of the said period, the suit has to be dismissed as not maintainable. 8. In the result, we confirm the judgment and decree of the High Court and dismiss this appeal. The parties will bear the respective costs in the appeal." 46. Last case of the Hon’ble Apex Court relied upon by the respondents is Vithal Bhai Pvt. Ltd. v. Union Bank of India, 2005(4) SCC 315 , wherein para 2, 4, 6, 8 and 10 read as under : "2. The suit was filed twelve weeks before the date on which the lease was to expire by efflux of time within the meaning of clause (a) of Section 111 of the Transfer of Property Act, 1882. The written statement was filed on 24.8.1994. One of the pleas taken in the written statement was that the suit was premature and hence was not maintainable. 4. By judgment dated 12.2.1992 the High Court (original side) decreed the suit holding the plaintiff entitled to decree of eviction with a preliminary decree directing an enquiry to ascertain the mesne profits. The plea as to non-maintainability of suit on account of its being premature was decided against the defendant by the learned single Judge of the High Court placing reliance on Rangayya Naidu (Mylavarapu) v. Basana Simon, AIR 1926 Mad 594 . The plea as to non-maintainability of suit on account of its being premature was decided against the defendant by the learned single Judge of the High Court placing reliance on Rangayya Naidu (Mylavarapu) v. Basana Simon, AIR 1926 Mad 594 . In the opinion of the learned Single Judge, no prejudice was caused to the defendant on account of the suit having been filed a little before the expiry of lease by efflux of time inasmuch as even if theoretically the suit could have been disposed of before 24.6.1984 it would still have been open for the Court to pass a decree of eviction and make the decree executable only after 24.6.1984. 6. The sole question arising for decision in this appeal is whether the suit was premature on the date of its institution and hence no relief could have been allowed to the plaintiff in such a suit, it was conceded at the Bar that the answer to this question would depend on whether the suit for eviction would be decreed or not. 8. The learned Counsel for the plaintiff appellant submitted that in the present case the suit cannot be said to have been filed as premature on the date of its institution. He submits that in the response dated 8-11-1983, the defendant-respondent had clearly disputed the plaintiff’s entitlement to evict the defendant-respondent on 25-6-1984, the date of expiry of the lease and therefore a cloud was cast on the title of the plaintiff. The plaintiff was therefore fully justified in bringing the suit after the receipt of the reply dated 8.11.1983. In the alternative, it was submitted that assuming that the suit was premature on the date of its institution, it become ripe during its pendency and was certainly so on the date on which the written statement was filed by the defendant, and that the Court has the power to take notice of such event and, therefore, to decree the suit. 10. Under Section 80 CPC no suit shall be instituted against the Government or a public officer until the expiration of two months next after service of notice in writing in the manner set out in the provision and if filed before the expiry of said period, the suit is not maintainable because there is clearly a public purpose underlying the provision. “The object of the section is the advancement of justice and the securing of public good by avoidance of unnecessary litigation.” (See Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ). In Butchiraju (Vaddadi) v. Doddi Seetharamayya, AIR 1926 Mad 377 , the suit was for a sum of money which had not become payable on the date of the suit but became payable since. Visvantha Sastri, J. (as His Lordship then was) held that the Court could pass a decree for the recovery of money. Reliance was placed on a Full Bench decision in A.T. Raghava Chariar v. O.M. Srinivasa Raghava Chariar, ILR (1917) 40 Mad 308 and a few other cases. Here, in all fairness, it may be mentioned that in Rangayya Naidu (Mylavarapu) v. Basana Simon, AIR 1926 Mad 594 , Spencer, J. has held that if a suit is premature at the date of institution, though not at the date of decision, a decree cannot be granted and the only course in such cases is to dismiss the suit with liberty to bring a fresh suit upon a proper cause of action. It is pertinent to notice that Butchiraju case was decided on 5.10.1925 while Rangayya Naidu case, AIR 1926 Mad 594 was decided on 7.10.1925 but the former decision though of a prior date was not brought to the notice of the Court deciding the latter case." 47. On the strength of the decision of this Court as reported in AIR 1971 All 209 , Union of India v. Brij Nath Rai and others, it has been contended that the Court below was right in not granting any injunction because the suit itself was bad. Para 6 reads as under : "6. Learned Counsel for the respondents has contended that as I am differing from the view taken by me in Sawan Mal’s case, 1970 All LJ 938 (supra) I should refer this case to a larger Bench. I would have done so, had the decision from which I am differing been of another learned Single Judge because, in that case there would have been a conflict of decisions between two Single Judges of this Court and that conflict would have confused the subordinate Courts. As the earlier decision with which I am differing is my own, no confusion will result. As the earlier decision with which I am differing is my own, no confusion will result. I, therefore, do not think it necessary to refer this case to a larger Bench. As I have said above if the Privy Council decision in Bhagchand Dagdusa Gujarathi’s case, AIR 1927 PC 176 (supra) and the Supreme Court decision in Sawai Singhai Nirmal Chand’s case, AIR 1966 SC 1068 (supra) had been brought to my notice, I would not have held what I did." 48. Thus, on the basis of the aforesaid decisions learned Counsel for the respondent has vehemently argued that the regular suit No. 928 of 2005 filed by the plaintiff is liable to be dismissed and as such the appeal arising out of the suit is also bad in law and is liable to be dismissed on this count. 49. Learned Counsel for the respondents has further argued that in the Will dated 26.6.1991 (Annexure 2) executed by Sardar Shamsher Singh, it has been urged that the Wills executed earlier in 1958, 1966, 1978, 1982 and 1985 kept in sealed cover before the District Registrar, Lucknow, were cancelled. According to the respondents, this is the last Will, which prevails. Further the genuineness of the Will dated 25.11.1994 has been challenged on the ground that after execution of the alleged Will dated 25.11.1994 Sardar Shamsher Singh left for heavenly abode on 28.11.1994 i.e. on 3rd day of execution of the Will, which is enough to create suspicion as the same was unregistered. 50. Respondents have further urged that since Sardar Shamsher Singh was a Taluqedar of Oudh and his estate was governed by the Oudh Estate Act, Section 13(A) of which provides that registration of Will is mandatory. Accordingly the Will dated 25.11.1994 being unregistered cannot be relied upon and on the basis of the said Will the appellant cannot claim any right or title or interest in the property of Sardar Shamsher Singh in view of the provisions of Oudh Estate Act. 51. The contentions against the genuineness of the Will have been pointed out as under : (i) Late Sardar Shamsher Singh was resident of Raebareli, whereas Sri Bijendra Singh and Sri Udai Vir Singh, attesting witnesses are residents of Bulandshahar and District Mathura and they are not related to Sardar Shamsher Singh. 51. The contentions against the genuineness of the Will have been pointed out as under : (i) Late Sardar Shamsher Singh was resident of Raebareli, whereas Sri Bijendra Singh and Sri Udai Vir Singh, attesting witnesses are residents of Bulandshahar and District Mathura and they are not related to Sardar Shamsher Singh. Accordingly there was no occasion for them to remain present at the time of execution of the alleged Will at Raebareli. The place of execution of Will has not been mentioned in the Will. (ii) Late Sardar Shamsher Singh used to execute Wills earlier and his last registered Will dated 26.6.1991 leave no room for doubt that he cancelled other Wills, but the alleged Will dated 25.11.1994 does not depict anything about the unregistered Will dated 26.6.1991. Thus, non-mentioning of earlier Wills of Sardar Shamsher Singh creates doubt. Sardar Shamsher Singh used to write his Wills in detail in English, whereas the alleged Will dated 25.11.1994 is very short, without having reference to earlier Wills and is written in Hindi. These factors also create suspicion about the alleged Will dated 25.11.1994. (iii) Late Sardar Shamsher Singh used to keep his Wills in sealed cover with the District Registrar, Lucknow, whereas in the alleged Will dated 25.11.1994, there is no mention of the earlier Wills nor any reason has been assigned as to why normal heirs of Sardar Shamsher Singh were excluded. (iv) Respondents, defendants No. 3 and 4 Mohit Singh and Sobhit Singh are the grandsons of Sardar Shamsher Singh, but no reasons have been assigned in the alleged Will dated 25.11.1994 to exclude them from inheritance. 52. It has been argued that the impact of registered Will dated 26.6.1991 is that it is the last Will of Sardar Shamsher Singh and the Will dated 25.11.1994 is not genuine. Sardar Shamsher Singh has not cancelled his earlier Will dated 26.6.1991. Accordingly, the Will dated 26.6.1991 still holds the field and the Photostat copy of the Will dated 25.11.1994 is of no avail and accordingly the appeal is liable to be dismissed. 53. Sardar Shamsher Singh has not cancelled his earlier Will dated 26.6.1991. Accordingly, the Will dated 26.6.1991 still holds the field and the Photostat copy of the Will dated 25.11.1994 is of no avail and accordingly the appeal is liable to be dismissed. 53. Learned Counsel for the respondents has further urged that in view of the decision of a Division Bench of this Court in Hemant Kumar Agrahari and another v. Lakshmi Devi and another, 2003 (21) LCD 1258 and in light of Section 65 of the Indian Evidence Act, it may be concluded that the Photostat copy of the alleged Will dated 25.11.1994 is of no avail. On the basis of suspicion, the learned Court below rightly rejected the same after giving cogent reasons. Accordingly no interference is warranted in this case. 54. On the point of furnishing additional evidence in appeal it is urged that no ingredient of Order 41 Rule 27, CPC has been complied with. For the sake of convenience Order 41 Rule 27, CPC is reproduced as under : "27. Production of additional evidence in Appellate Court—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(bb) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 55. After hearing the submissions of the parties and considering the law referred to above, we would like to scrutinize the same. At the very outset we may clarify that at this stage we are not making any observation which may affect the merit of the case during the trial. 56. After hearing the submissions of the parties and considering the law referred to above, we would like to scrutinize the same. At the very outset we may clarify that at this stage we are not making any observation which may affect the merit of the case during the trial. 56. It is a settled proposition of law that in order to grant interim relief of injunction, the question which arises for consideration is whether the plaintiff has a prima facie case to succeed, whether balance of convenience lies in his favour or whether an irreparable injury would be caused to him or not. If a debatable question has been created or made out from the pleading of the parties, it will be considered as a triable issue, which can only be disposed of by leading evidence with regard to the contentions raised by the parties. Merits at the initial stage and especially while deciding the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure, are not required to be adjudicated. Although the Court is vested with the power to grant interim relief of injunction but the Court’s discretion must be exercised sparingly and only in appropriate cases. The Court should be extremely cautious in granting interim relief in those cases in which a triable issue arises for considerations. 57. We further find that during the course of appeal, additional evidence if admitted, it does not mean that such evidence should not be taken into consideration to arrive at a decision in this case. The paramount duty of the Court is to exercise the powers for triumph of justice and accordingly to arrive at a just decision if any additional evidence is required to be produced, the Court can admit the same. 58. In this case additional evidence, which is available before this Court can also be looked into. Accordingly photocopy of the Will dated 25.11.1994 is available on record and during the course of arguments there was no hitch for the parties to set up a counter version of the same. However, the objections raised before this Court by the respondents that the Will dated 25.11.1994 should be discarded, appears to be based on sound proposition of law. 57. However, the objections raised before this Court by the respondents that the Will dated 25.11.1994 should be discarded, appears to be based on sound proposition of law. 57. Under Order 39, C.P.C. the discretion of the Court is exercised to grant a temporary injunction only when the following requirements are made out by the plaintiff/appellant : (1) Existence of prima facie case as pleaded necessitating protection or the plaintiffs’ right by issue of a temporary injunction; (2) When the need for protection of plaintiffs’ right is compared with or weighed against the need for protection of defendants’ right or likely infringed of the defendants’ right, balance of convenience tilting in favour of the plaintiffs; (3) Clear possibility of irreparable injury being caused to the plaintiffs if temporary injunction is not granted. 60. In addition, temporary injunction being an executable relief, the discretion to grant such relief will be exercised only when the plaintiffs conduct is free from blame and he approached the Court with clean hands. Where the lower Court acted arbitrarily or capriciously or perversely, the Appellate Court will interfere. Exercise of discretion by refusal cannot be termed as arbitrarily or capricious. Out of three requirements, as stated above, for obtaining injunction the plaintiff/appellant has to point out before this Court a prima facie case in his favour, balance of convenience and irreparable injury or other requirements for injunction and they have to be satisfied by the plaintiff/appellant before claiming the injunction. If the plaintiff is not in possession and the defendants after making purchase of the property or otherwise are in possession, in that case plaintiff/appellant is not entitled for injunction. 61. It is not disputed between the parties that late Sardar Shamsher Singh was a Tallukedar and his estate was governed by Oudh Estate Act. Section 13(A) provides that registration of a Will is mandatory. 62. Learned Counsel for the petitioner has urged that under the Indian Succession Act registration of Will is not compulsory. Accordingly the last Will on which the appellant relies, although is not registered, but can be looked into. 63. We have given our anxious thought to the rival contentions on the Will dated 25.11.1994, which is unregistered. At the outset we may mention that Section 13(A) of Oudh Estate Act provides that the registration of Will of a Tallukedar is necessary. 63. We have given our anxious thought to the rival contentions on the Will dated 25.11.1994, which is unregistered. At the outset we may mention that Section 13(A) of Oudh Estate Act provides that the registration of Will of a Tallukedar is necessary. We have also considered the provisions of Indian Succession Act, wherein at Section 2 Clause (h) "Will" has been defined. It is not a matter of dispute that the word “Will” is widely known and used, it has a well understood significance as meaning a disposition, which is to take effect on the death of a person. Will has been defined in Section 2 (h) of the Indian Succession Act to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. 64. Consequently, there can not be any dispute about the power of Sardar Shamsher Singh to execute a Will. The provisions of Indian Succession Act have no overriding effect over the Oudh Estate Act. Consequently, at this stage the learned Counsel for the appellant has failed to point out that under any provision of Indian Succession Act, there is any averment to this effect that it will have a supremacy and overriding effect on Oudh Estate Act. Consequently we find that the Will can be executed under the Indian Succession Act but for a Tallukedar, in whose case Oudh Estate Act applies, registration of Will is mandatory under Section 13(A). There is no repugnancy on this issue. However we are of the view that under Section 391 of the Indian Succession Act, 1925, there is an ample ride over the issue wherein it has been provided that the provisions of Indian Succession Act would not validate or invalidate any testamentary disposition, which would otherwise is valid or invalid. For convenience Section 391 is reproduced as below : "391. Saving.—Nothing in Part VIII, Part IX or Part X shall- (i) validate any testamentary disposition which would otherwise have been invalid; (ii) invalidate any such disposition which would otherwise have been valid; (iii) deprive any person of any right of maintenance to which he would otherwise have been entitled ; or (iv) affect the Administrator Generals Act, 1913." 65. Saving.—Nothing in Part VIII, Part IX or Part X shall- (i) validate any testamentary disposition which would otherwise have been invalid; (ii) invalidate any such disposition which would otherwise have been valid; (iii) deprive any person of any right of maintenance to which he would otherwise have been entitled ; or (iv) affect the Administrator Generals Act, 1913." 65. Having regard to Section 391 of the Act, in the light of Oudh Estate Act and the provision of Section 13(A), we are of the view that registration of will is mandatory if it is executed by a Tallukedar and whose property is governed by the Oudh Estate Act. 66. Learned Counsel for the appellant has failed to furnish any details on the point that the Estate is not governed by the Oudh Estate Act. Prima facie in the light of Section 391 of the Indian Succession Act read with Section 13 (A) of the Oudh Estate Act, we are satisfied that the property of Sardar Shamsher Singh, who was a Tallukedar, is governed by the provisions of Oudh Estate Act and the registration of Will is mandatory. It is also not a matter of dispute between the parties that Sardar Shamsher Singh executed earlier Wills in the year 1958, 1966,1 978, 1982 and 1985. They were kept in sealed cover before the Registrar and in due course they were cancelled. Thereafter another Will (Annexure-2) was executed by him on 26.6.1991. This Will was also kept in sealed cover. Accordingly, Annexure-2 satisfies the spirit of the law and at the time of its execution, the provisions of Oudh Estate Act as well as of Indian Succession Act were adhered to. 67. It is also a matter of concern that late Sardar Shamsher Singh who was Tallukedar was fully aware that the Will had to be executed in the manner provided under Section 13(A) and that is why he executed all the times registered Wills. The plaintiff, who is a beneficiary of the Will dated 25.11.1994, has failed to point out the circumstances under which Sardar Shamsher Singh adopted different ways in execution of the Will on 25.11.1994. It does not appeal to reason as to why in the same transaction he avoided to register the Will. The plaintiff, who is a beneficiary of the Will dated 25.11.1994, has failed to point out the circumstances under which Sardar Shamsher Singh adopted different ways in execution of the Will on 25.11.1994. It does not appeal to reason as to why in the same transaction he avoided to register the Will. Without expressing any opinion on the merit of the case, this Court cannot ignore this fact that Sardar Shamsher Singh who was resident of Raebareli, decided to execute the Will in presence of attesting witnesses Brijendra Singh and Udaiveer Singh, who were resident of District Bulandshahar and Mathura and they were admittedly not related to Sardar Shamsher Singh. The plaintiff/appellant has failed to furnish any detail as to how these two attesting witnesses were present at the time of execution of Will at Raebareli. Surprisingly, the place of execution of Will is missing in the Will dated 25.11.1994, relied upon by the plaintiff/appellant. The non-mention of earlier Wills speaks in volumes. 68. It is also not disputed between the parties that Sardar Shamsher Singh executed earlier Wills in detail in English, while the Will executed in favour of the plaintiff/appellant is short without having any reference to earlier Wills and written in Hindi. These are the factors which have to be explained before the trial Court, but this Court cannot brush aside the circumstances on the point of establishing of a prima facie case by the appellant. 69. Further, we find that Sri Mohit Singh and Sri Shobhit Singh respondents/defendants No. 3 and 4 are admittedly the grand-sons of Sardar Shamsher Singh, but the Will dated 25.11.1994 is silent to exclude them from inheritance. There is no averment to this effect that why normal rule of succession was over looked by their grand-father while in the registered Will they are beneficiaries. 70. Thus, on the point of Will dated 25.11.1994, we do not find any perversity in the exercise of discretion by the trial Court. The trial Court to our mind has not acted arbitrarily, perversely or capriciously in exercising the discretion on the point of prima facie case by not giving effect to the Will dated 25.11.1994. 71. 70. Thus, on the point of Will dated 25.11.1994, we do not find any perversity in the exercise of discretion by the trial Court. The trial Court to our mind has not acted arbitrarily, perversely or capriciously in exercising the discretion on the point of prima facie case by not giving effect to the Will dated 25.11.1994. 71. Learned Counsel for the appellant/plaintiff has failed to point out the circumstances under which the unregistered Will, which-is contrary to the provisions of Section 13(A) of the Oudh Estate Act, should be considered valid testamentary disposition of the property of late Sardar Shamsher Singh. Consequently, the appellant has failed to establish a prima facie case as pleaded necessitating protection of his right by issue of a temporary injunction. 72. Although on behalf of the respondents, a plea was taken that the purchasers should be given protection under Section 41 of Transfer of Property Act, but learned Counsel for the respondents Mr. N.K. Seth contended that the provisions of Sections 41 and 42 have no relevance in the present case. He has failed to point out as to why this plea was taken in appeal. We totally disagree with him. 73. Mr. Mehrotra, the learned Counsel appearing for other respondents has placed implicit reliance over the provisions of Section 41 of the Transfer of Property Act and has argued that it has full application in this case as it is not disputed between the parties that the sale-deed has already been executed in favour of the purchasers, who are the opposite parties. 74. Let us read Section 41 of the Transfer of Property Act, which is reproduced as under : “4. Transfer by ostensible owner.—Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” 75. A bare reading of aforesaid Section leaves no room for doubt that the conditions are fully satisfied, affords a protection to bonafide purchasers from ostensible owners and lays down an exception to what may be said to be the general rule that a person cannot convey a better title than he himself has in the property. Section 41 provides an exception to the general rule that a transferor cannot confer upon his transferee a better title than he himself has. The conditions, which must be fulfilled before the real owner can be deprived of his rights by the acts of the ostensible owners, are referred in the Section. There is nothing on record to suggest that the property has not been purchased on making the consideration or transferee has not taken reasonable care to ascertain that the transferor has power to make the transfer or the transferee has not acted in good faith. However, this is a matter of evidence, which may be taken into consideration by the lower Court at the time of trial. It is not a matter of dispute that the object of the Section is to protect the bonafide transferee, for good consideration who has made proper inquiries, from being prejudiced by the conduct. 76. Thus, at this stage, the claims of transferees can also not be ignored especially in the circumstances when they claim that they are in possession of the property on the strength of the sale deed executed by the respondents in their favour. 77. The appellant has failed to establish that the transferees are not in possession of the property after the execution of the registration of sale deed in their favour and they should be deprived of enjoying the property during pendency of the suit. It is also not established as to what irreparable injury would be caused if temporary injunction is not granted. It is a settled proposition of law that the property in suit shall be governed by the provisions of Section 52 of the Transfer of Property Act. We further find that in case the appellants succeeds then he would be entitled for all such relief which is admissible in law to him. Consequently the appellant has also failed to prove the irreparable injury before this Court as well as before the trial Court. We further find that in case the appellants succeeds then he would be entitled for all such relief which is admissible in law to him. Consequently the appellant has also failed to prove the irreparable injury before this Court as well as before the trial Court. Consequently there is no scope for interference with the finding of the trial Court and it cannot be treated as perverse. 78. Thus, looking to the facts from all or any angle, the appellant/plaintiff has failed to demonstrate any irreparable injury, that is going to be caused to the appellant if the temporary injunction is not granted. 79. At the cost of repetition, we may refer that the tranferees who are claiming protection under Section 41 of the Transfer of Property Act and claiming possession over the suit land, are claiming protection of their right and claimed that balance of convenience is tilting in their favour. Consequently on this count also we do not find any flaw in the impugned order passed by the learned trial Court. 80. Learned Counsel for the appellant has drawn our attention to Section 80, C.P.C. stating that the learned trial Court below erred in deciding that the suit is not maintainable due to non-compliance of the provisions of Section 80, C.P.C. The plaintiff has relied upon certain cases referred to above. 81. Our attention was further drawn to various paragraphs of the plaints and it has been urged that on the basis of bundle of facts disclosed in the plaints, no cause of action was stated against the Public Officer and accordingly it was not incumbent upon the appellant to give any notice under Section 80, C.P.C. The appellant has urged that in the given circumstances there is no probative value of giving notice under Section 80, C.P.C. as no relief was sought against the Government Official/Officer and on this ground the impugned order is erroneous. 82. 82. On the contrary learned Counsel for the respondent has urged that no suit can be instituted against Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity without giving any notice under Section 80, C.P.C. In case of necessity, the exemption can be sought from the trial Court and since no permission was sought for dispensing with notice under Section 80 C.P.C., accordingly the suit is bad for want of notice under Section 80, C.P.C. At the outset we would refrain ourselves from expressing any opinion on the point of maintainability of the suit. We find that Section 80, C.P.C. deals with the procedure and the requirements of Section 80, C.P.C. are to be strictly complied with and are applicable to all forms of action and all kinds of relief. We also find that Section 80, C.P.C. imposes a statutory and unqualified obligation upon the Court and in the absence of compliance with Section 80, the suit is not maintainable. However this is a matter of fact and accordingly it can be looked into at the stage of trial. At this stage, it is not necessary to express any opinion which may prejudice either of the parties on the point of merit, but this aspect can also not be over looked that the bone of contention is the property, for which there is a dispute between the contesting parties. Under Order 7 Rule 11 (d) since the plaint was not rejected and no such request was made by the respondents, accordingly at this stage it is not open for them to raise such plea that the suit ought not to have been registered. Thus, it would not be expedient in the interest of justice to give any finding on the point of maintainability of the suit. 83. In the conspectus of the facts and circumstances of the case, referred to above, we are not inclined to interfere with the findings of the learned lower Court and the appellant has failed to make out a prima facie case for temporary injunction and accordingly the appeal is devoid of any merit and it is accordingly dismissed, but with no costs. ————