JUDGMENT : Jyotirmay Bhattacharya, J. 1. This first miscellaneous appeal is directed against an order being No. 2 dated 9th October, 2015 passed by the learned Judge, City Civil Court at Calcutta in Title Suit No. 1503 of 2015 at the instance of the plaintiff/appellant. 2. By the impugned order, the temporary injunction, which was sought for by the plaintiff, was granted by the learned Trial Judge. The plaintiff was permitted to fix the gate by replacing the existing damaged gate within the western portion of the said holding in the light of the registered Will, left by the mother of the plaintiff. Simultaneously, the learned Trial Judge passed direction upon the plaintiff being the executor under the Will to make over possession of the eastern portion of the suit holding to the defendants by 19th November, 2015 positively. Both the parties were directed to act in terms of the registered deed of trust. 3. Being aggrieved by and dissatisfied with that part of the interim order by which the plaintiff was directed to make over possession of the eastern portion of the suit holding to the defendants by 19th November, 2015, the plaintiff/appellant has filed the instant appeal. 4. Let us now consider as to how far the learned Trial Judge was justified in passing that direction in the facts of the instant case. 5. No doubt, it is true that the direction passed by the learned Trial Judge, which is impugned in this appeal, was passed in excess of its jurisdiction inasmuch as such direction in our view, can only be passed by the Probate Court in the probate proceeding but still then, we feel that we should consider the entire background of the proceeding to find out justifiability for passing such direction of the learned Trial Judge in the instant suit. 6. Here is the case where we find that the suit property originally belonged to Usha Rani Devi. She had two sons viz. Rajendra Nath Ganguly, the appellant herein, and Raghu Nath Ganguly, since deceased. She executed a Will on 7th October, 1983 bequeathing her property in favour of her said two sons viz. Rajendra Nath Ganguly and Raghu Nath Ganguly. Rajendra Nath Ganguly was appointed as executor in the said Will. She had two sons viz. Rajendra Nath Ganguly, the appellant herein, and Raghu Nath Ganguly, since deceased. She executed a Will on 7th October, 1983 bequeathing her property in favour of her said two sons viz. Rajendra Nath Ganguly and Raghu Nath Ganguly. Rajendra Nath Ganguly was appointed as executor in the said Will. Ragendra Nath Ganguly being the executor appointed under the said Will applied for grant of probate giving rise to probate case No. 77 of 1997 and probate was granted on 19th February, 2001. 7. By virtue of the said Will, the western portion of the suit premises was given to Ragendra Nath Ganguly, the plaintiff/appellant herein. The eastern portion of the said premises was given to Raghu Nath Ganguly, the predecessor-in-interest of the present defendants/ respondents. Though the probate was granted as back as on 19th February, 2001; till date the plaintiff being the executor, appointed in the said Will, has not yet delivered possession of the eastern portion of the said premises to the defendants being the legal heirs of Raghu Nath Ganguly. The plaintiff/appellant is unlawfully retaining the possession of the eastern portion of the said premises depriving the defendants/respondents from enjoying their allotment as per the said Will. The western part of the said premises which was given to the plaintiff/ appellant herein is let out to tenants. The plaintiff/appellant is realising rent from such tenants and thus he is enjoying the said portion which was given to him by his mother in the said Will and at the same time is depriving the legal heirs of his deceased brother from enjoying their portion of the said premises. 8. We are informed that the plaintiff/appellant has already filed an eviction suit against his tenants for recovering possession of the western portion of the suit premises and that suit having been dismissed by the learned Trial Judge, an appeal was preferred by the plaintiff/appellant before this Court which is still pending for disposal. 9. 8. We are informed that the plaintiff/appellant has already filed an eviction suit against his tenants for recovering possession of the western portion of the suit premises and that suit having been dismissed by the learned Trial Judge, an appeal was preferred by the plaintiff/appellant before this Court which is still pending for disposal. 9. In this background, when we find that the executor has failed to discharge his duties and thereby unlawfully enjoying the portion of the premises which was given to his brother and at the same time enjoying the usufruct the portion allotted to him, we are of the view that the learned Trial Judge did not commit any illegality by passing such direction upon the plaintiff/appellant to hand over the possession of the eastern portion of the said premises to the defendants/respondents. 10. Under this set of facts, though we hold that such direction was granted by the learned Trial Judge in excess of jurisdiction, but still then, we feel that it will not be just and proper to interfere with this part of the direction passed by the learned Trial Judge in the facts of the case mentioned hereinabove. 11. Hence, we dismiss this appeal and make it clear that the operation of the other part of the impugned order by which permission was granted to the plaintiff to fix the gate by replacing the damaged gate within the western portion of the suit holding, will be kept in abeyance until the possession of the eastern part of the said premises is delivered to the defendants/respondents. 12. The appeal is, thus, dismissed. 13. Since the appeal is disposed of in the manner as aforesaid, no further order need be passed on the stay application. The application for stay being CAN 10800 of 2015 is thus, deemed to be disposed of. Urgent Photostat certified copy of this order, if applied for, be supplied to the learned advocates for the parties as expeditiously as possible.