ORDER : J.K. JAIN, J. 1. This miscellaneous appeal has been filed under Order XLI, Rule 1(r) of Civil Procedure Code (in brief "Code") against the order dated 11-5-2012 passed by XXIst Additional District Judge, Indore in Civil Suit No. 24-A/2011 whereby dismissed the application filed by the plaintiff under Order XXXIX, Rules 1 and 2 of the Code. Facts of this case are that plaintiff/appellant filed a civil suit for declaration and permanent injunction stating that her mother-in-law Smt. Bhavri Devi was owner and in possession of property situated at 7-B, Builders Colony, Indore. The defendant No. 1 is Devrani and defendant No. 2 is Devar of Plaintiff. On 5-2-1992, Bhavri Devi granted lease to her daughter-in-law Smt. Shashikala Devi to construct first floor. Later on 9-4-1992, Bhavri Devi granted lease to her another daughter-in-law Smt. Sushila Devi (defendant No. 1) to construct second floor. On 30-4-2010 Bhavri Devi executed a Will in favour of Smt. Dhanvanti Devi (Plaintiff) and bequeath the entire ground floor and garage constructed over plot No. 7-B, Builders Colony. Bhavri Devi died on 24-5-2010. After her death on the basis of Will Plaintiff became the exclusive owner and possessee of the ground floor of the 7-B, Builders Colony and her name was mutated in Municipal record. The ground floor consists of three bedrooms, two halls, kitchen, storeroom, garage, and one room above the garage. According to the plaintiff during lifetime of Bhavri Devi the plaintiff and her family had been residing for last 28 years with Bhavri Devi on ground floor. After the death of Bhavri Devi dispute arose between the plaintiff and defendants in regard to possession of first floor. Then on 11-6-2011 Police Station Tukoganj, Indore filed a report and Sub-Divisional Magistrate Indore initiated proceeding under section 145 of Criminal Procedure Code against the Plaintiff and defendants. In that matter SDM passed order against the Plaintiff then plaintiff filed a revision before the Additional Sessions Judge which has been dismissed. Thereafter she filed the petition under section 482 of the Criminal Procedure Code before this Court which was disposed of on 12-8-2011 directing the competent civil Court to decide the injunction application within two months and parties are directed to maintain status quo for two months. In the suit the plaintiff sought relief for declaration that she is the exclusive owner of the ground floor. In the suit the plaintiff sought relief for declaration that she is the exclusive owner of the ground floor. On 21-4-2011 the defendants threatened to forcibly dispossess her, therefore, Plaintiff has filed an application for injunction against the defendants that during the pendency of the suit, her possession be protected. 2. Defendants/respondents resisted the application stating that the plaintiff conspired with attesting witnesses namely Kalyanmal Kothari, Rajendra Pahadia, Advocate N.G. Baheti, and Notary Mohd. Nabi Khan and prepared a forged Will. The defendant has filed a private complaint against them and the Magistrate took cognizance against them. There was a strange relationship between the plaintiff and Bhavri Devi and the Bhavri Devi has already bequeath the property in favour of defendant No. 1 and during lifetime of Bhavri Devi the defendants were residing with her and they used to take care of her. After the death of Bhavri Devi when the Teerahi ceremony was being performed Plaintiff forcibly kept her household belongings in some portion of the ground floor of the house and on 6-4-2011 Plaintiff gave an undertaking that she will remove her belongings within ten days. Plaintiff is not in possession of the property and therefore she is not entitled for any injunction. 3. In support of the application Plaintiff has filed the copy of the Will, her own affidavit, and affidavit of attesting witnesses Kalyanmal Kothari and Rajendra Pahadia and she also filed affidavits of Ganga Vishnu Rathi, Pramod Bhai, Harish Chandra Kabra, Narayandas and Parasmal Modi. In rebuttal defendant No. 1 filed her own affidavit, besides this, Affidavits of Kasturchand Kothari, Rajmahal Maheshwari, Arun Kumar Sharma, Omprakash Neema, Bhagwati Bai, Dr. Sanjay Maheshwari, Shobha Sindhi, Aman Loya, Kamalji Mundra and Nand Motwani and the orders passed by SDM and ASJ in regard to proceedings under section 145, Criminal Procedure Code. 4. After hearing the parties and considering the affidavits and documents trial Court dismissed the application and found that the Plaintiff is unable to prove her possession on the ground floor of the property. Being aggrieved with this order the Plaintiff/Appellant has filed this appeal. 5. Learned Counsel for the Appellant submits that trial Court in para 12 has held that the plaintiff has proved the prima facie case in her favour but the Court has rejected the application. Being aggrieved with this order the Plaintiff/Appellant has filed this appeal. 5. Learned Counsel for the Appellant submits that trial Court in para 12 has held that the plaintiff has proved the prima facie case in her favour but the Court has rejected the application. Trial Court has failed to appreciate that after the orders passed under section 145 of Criminal Procedure Code defendants were given possession by the police authorities only of one bedroom, kitchen, storeroom, and puja room on the ground floor and the remaining portion are still in possession of Plaintiff/Appellant and she is residing in the same, therefore the trial Court should have granted injunction in favour of the Plaintiff directing that not to dispossess forcibly by the defendants. 6. Learned Counsel for the Appellant submits that trial Court was prejudiced by the order passed by the SDM which was confirmed by the Additional Sessions Judge. The reasons recorded by the SDM and the findings in respect of possession arrived at by SDM have no relevance and are not admissible in evidence before the competent Court and the Competent Court is not bound by such findings. For this purpose he rely upon the judgment of the Apex Court in the case of Shanti Kumar Panda Vs. Shakuntala Devi, (2004) 1 SCC 438 . Learned Counsel for the Appellant further submits that in the present case plaintiff has proved that she had been residing with his family on the ground floor of the suit property. Thus her possession should have been protected. The plaintiff has raised triable issues, balance of convenience as also irreparable injury lay in favour of the plaintiff therefore the injunction should have been granted in favour of the Plaintiff. For this purpose he relied upon the judgment of the Hon'ble Apex Court in the case of M.P. Peter Vs. State of Kerala and Others, (2009) 7 SCALE 447 . Thus the appeal be allowed and interim injunction be granted during the pendency of the suit. 7. On the other hand learned counsel for the respondents contended that the Appellant is claiming title on the basis of the forged Will. She never resided in the ground floor of the house and she is unable to produce any documents in this regard, whereas she is claiming that she had been residing for last 28 years. 7. On the other hand learned counsel for the respondents contended that the Appellant is claiming title on the basis of the forged Will. She never resided in the ground floor of the house and she is unable to produce any documents in this regard, whereas she is claiming that she had been residing for last 28 years. It is not correct that the trial Court is prejudiced by the order passed by the SDM. Trial Court has rightly exercised the discretion. The Appellate Court should not have ordinarily interfered in the order unless Appellate Court comes to the conclusion that there is an error apparent or perversity or manifest injustice has been done. For this purpose he rely upon the judgment of the Apex Court in the case of Skyline Education Institute (Pvt.) Ltd. Vs. S.L. Vaswani and Another, (2010) 2 SCC 142 . When party unable to prove prima facie case, injunction cannot be granted even if such party makes out case for balance of convenience and irreparable injury. He rely upon the judgment of the Apex Court in the case of Kashi Math Samsthan and Another Vs. Srimad Sudhindra Thirtha Swamy and Another, (2010) 1 SCC 689 . Learned Counsel for the respondent submits that besides consideration of basic elements Courts must consider conduct of parties. For this purpose he cited the judgment of Apex Court in the case of Mandali Ranganna and Others etc. Vs. T. Ramachandra and Others, (2008) 11 SCC 1 . Thus there is no force in appeal and is liable to be dismissed. 8. After hearing learned Counsel for the parties, perused the record. 9. At the time of considering the application under Order XXXIX, Rules 1 and 2 of the Code, the Court has to consider the affidavits and the documents filed by the parties. The appellant is claiming that daring lifetime of Bhavri Devi she along with her family had been residing on ground floor of disputed house for last 28 years but she has not filed any document in this regard. The appellant has filed the affidavits in respect of showing the possession the defendants have filed counter affidavits. Therefore, the trial Court has found that on the basis of such affidavits no conclusion can be drawn in regard to possession. 10. The appellant has filed the affidavits in respect of showing the possession the defendants have filed counter affidavits. Therefore, the trial Court has found that on the basis of such affidavits no conclusion can be drawn in regard to possession. 10. It is true that the findings of a Criminal Court is not binding on Civil Court, but the findings of the Criminal Court in regard to possession is not totally irrelevant but it should have been considered as held by the Apex Court in the case of Shanti Kumar Panda (supra) as under:-- "The Court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by Court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on the power of Court. The Court does have jurisdiction to make an interim order including an order of ad interim injunction inconsistent with the order of the Executive Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad interim order the party unsuccessful before the Executive Magistrate may on material placed before the Court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self-inconsistent in which or the like cases the Court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the Court - final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting there from the party successful before the Executive Magistrate within the meaning of sub-section (6) of section 145." 11. Learned counsel for the appellant unable to point out that the findings arrived at by the SDM and affirmed by the ASJ in regard to possession are without jurisdiction, palpably wrong or self-inconsistent. Therefore, the findings of the SDM can also be considered as one of me factor while deciding the application for injunction. 12. Learned counsel for the appellant unable to point out that the findings arrived at by the SDM and affirmed by the ASJ in regard to possession are without jurisdiction, palpably wrong or self-inconsistent. Therefore, the findings of the SDM can also be considered as one of me factor while deciding the application for injunction. 12. Learned counsel for the appellant has also unable to point out that which document has not been considered by trial Court in regard to. possession. 13. Learned counsel for the appellant submits that the trial Court gave a finding that the appellant has prima-facie case even though dismissed the application for injunction. The trial Court in para 12 of the impugned order held that there is a dispute between the parties whether Bhavri Devi has executed a Will in favour of the plaintiff and the defendants have seriously disputed this fact. Thus, there is triable issue in favour of the plaintiff. Therefore the trial Court gave a finding that there is a prima-facie case. But it does not mean that the plaintiff has prima facie proved his possession over the ground floor of the disputed house. 14. The appellant is claiming possession of ground floor of the disputed house only on the basis of the alleged Will which is challenged by the defendants and according to the defendants the Will is forged one. They have filed a private complaint against the plaintiff and the Magistrate took the cognizance against the plaintiff and other co-accused. 15. Thus, on the basis of the Will and the affidavits, the appellant is unable to prove his possession on the ground floor of the disputed house. Thus there is no apparent error or perversity in the impugned order. Thus, there is no force in this appeal. The appeal is dismissed. No order as to costs.