JUDGMENT : 1. The appellant has challenged order dated 21.08.20023 passed by the learned Additional District Judge, Jammu (hereinafter to be referred as “the Trial Court”), whereby the application of the appellant under Order 39 Rules 1 & 2, read with section 151 CPC for grant of temporary injunction has been dismissed. 2. It appears that the appellant had filed a suit against the respondents before the Trial Court seeking a declaration that he is the sole owner of the house bearing No. 194-A, situated at Rehari Colony, Jammu on the basis of Will dated 21.06.1994 executed by Shri Amrit Lal Sawhney, the predecessor-in-interest of the parties. The appellant has also challenged the judgment and decree dated 26.08.2003 passed by the Court of 1st Addl. District Judge, Jammu, whereby the decree of partition in respect of the suit house has been passed by the said Court. Further injunction restraining the respondents/defendants from interfering in peaceful possession of the appellant/plaintiff over the suit property has also been sought. Alongwith the suit, the plaintiff/appellant also filed an application for grant of temporary injunction. 3. As per the case of the appellant/plaintiff before the trial court, late Amrit Lal Sawhney, who was owner in possession of the suit house has left behind a Will dated 21.06.1994, whereby he has bequeathed the suit property in favour of the appellant/plaintiff. The parties to the suit happen to be the sons and daughters of Shri Amirt Lal Sawhney. According to the plaintiff, he had no knowledge about execution of the Will and it is only on 31st of December, 2019 that he came to know about the execution of the Will that was handed over to him by one Rakesh Kumar Bali with whom the testator had kept the said Will. It is averred that defendant No. 2 had filed a suit before the Court of Additional District Judge, Jammu against the plaintiff and other defendants for partition of the suit house by meets and bounds. At the time when the plaintiff filed the written statement in the said suit, he was not knowing about execution of the Will by the predecessor-in-interest of the parties in his favour. Vide judgment dated 30.11.2002 passed by the learned Additional District Judge, Jammu, a preliminary decree of partition was passed and a Commissioner was appointed. At the time when the plaintiff filed the written statement in the said suit, he was not knowing about execution of the Will by the predecessor-in-interest of the parties in his favour. Vide judgment dated 30.11.2002 passed by the learned Additional District Judge, Jammu, a preliminary decree of partition was passed and a Commissioner was appointed. After receipt of report of the Commissioner, final decree was passed by the learned Additional District Judge, Jammu on 26.08.2003. In terms of order dated 15.12.2017, the learned Additional District Judge, Jammu observed that the suit house is very small, as such, the same cannot be partitioned into four shares. Accordingly, it was directed that the house in question may be put to sale by way of auction and sale proceeds be divided into four shares between the parties to the suit. 4. It is the case of appellant/plaintiff that during the execution proceedings, he came to know about execution of the Will and accordingly, he filed an application before the Executing Court objecting to the execution of the decree on the basis of the Will but the said application came to be dismissed for want of prosecution. 5. It appears that the plaintiff had also filed a suit seeking declaration that he is the absolute owner of the suit house on the basis of Will dated 21.06.1994 with consequential relief of permanent prohibitory injunction restraining the defendants from interfering into his peaceful possession of the suit house before the Court of 1st Addl. Munsiff, Jammu. The plaintiff after realising that he has not challenged the judgment/decree of partition dated 26.08.2003, read with order dated 15.12.2017 passed in the earlier suit, the plaintiff sought withdrawal of the suit with liberty to file fresh one. Vide order dated 17.06.2023 passed by the 1st Addl. Munsiff, Jammu, the application was allowed and the plaintiff was permitted to withdraw the suit with liberty to file fresh one. Accordingly, the suit, which is subject matter of the instant appeal, came to be filed by the plaintiff/appellant. 6. Defendant Nos. 1 & 3 filed joint written statement to the suit, whereas defendant No. 2 filed a separate written statement. In their written statement, the defendants have taken a stand that the decree of partition passed by the Addl. Accordingly, the suit, which is subject matter of the instant appeal, came to be filed by the plaintiff/appellant. 6. Defendant Nos. 1 & 3 filed joint written statement to the suit, whereas defendant No. 2 filed a separate written statement. In their written statement, the defendants have taken a stand that the decree of partition passed by the Addl. District Judge, Jammu has attained finality and the same has been put to execution, as such, the appellant/plaintiff cannot challenge the said decree by way of present suit. It has been further submitted that late Amrit Lal Sawhney died on 10th of July, 1996 and during his lifetime the entire family was living jointly in the suit house. The defendants have contended that the Will on the basis of which the plaintiff has filed the suit is forged and fabricated and that late Amrit Lal Sawhney never executed any Will in favour of the plaintiff. It has been claimed that both the plaintiff and defendant No. 1 are in possession of separate portion of the suit house. According to the defendants, the judgment and decree passed by the Additional District Judge, Jammu has attained finality, as such, suit of the plaintiff is barred by principles of res judicata. It is submitted that Rakesh Kumar Bali is not known by any of the family members of the parties, as such, there is no question of handing over of the Will by the father of the parties to Rakesh Kumar Bali. 7. Learned trial court after hearing the parties on the question of grant of interim injunction, decided the application under Order 39 Rules 1 & 2 of the CPC vide the impugned judgment. The application came to be dismissed by the learned trial court by holding that grant of stay in favour of the plaintiff/appellant is not warranted because there is no prima facie case in his favour. 8. Learned counsel for the appellant has vehemently argued that from the pleadings filed by the parties before the trail court, a serious triable issue of fact has arisen, which can be determined only after the trial of the case. Until the said issue is decided after the trial, the subject matter of lis is required to be protected. Therefore, the trial court has committed a grave illegality by refusing to stay the execution proceedings. Until the said issue is decided after the trial, the subject matter of lis is required to be protected. Therefore, the trial court has committed a grave illegality by refusing to stay the execution proceedings. It has been submitted that the appellant is in exclusive possession of the suit house and his possession is required to be protected. It has been contended that if the suit house is put to auction, the same would lead to multiplicity of litigation and the suit filed by the appellant/plaintiff would become infructuous. 9. I have heard learned counsel for the parties and perused the record of the case. 10. Certain admitted facts, which emerge from the record, are that the suit house belonged to the father of the parties. It is admitted by the parties that defendant No. 2 had filed a suit for partition of the suit house in the year 1997 and all the parties to the present proceedings, were also parties to the said suit. The preliminary decree was passed by the Court of Additional District Judge, Jammu on 30.11.2002 and the final decree for partition came to be passed by the said court on 26.08.2003. Vide order dated 15.12.2017, the learned Addl. District Judge, Jammu after finding that the suit house cannot be partitioned, directed that the same be put to sale by auction and the sale proceeds be divided amongst the share holders. Thus, the decree of partition has acquired finality and in fact, the same has been put to execution and the execution proceedings are still pending. 11. The predecessor-in-interest of the parties had died in the year, 1996. The question arises that whether the appellant can be allowed to challenge the decree of partition on the basis of a Will that had been allegedly executed by the predecessor-in-interest of the parties nearly about three decades ago. The appellant has submitted that he came to know about execution of the Will very recently. Prima facie, it does not appear to be plausible that a son in whose favour a Will has been executed by the father would come to know of it after about three decades of death of his father. The appellant was a party to the partition suit and all along it was open to him to produce the Will before the Court during proceedings of the partition suit. The appellant was a party to the partition suit and all along it was open to him to produce the Will before the Court during proceedings of the partition suit. It does not appeal to reason that the appellant does not know about execution of the Will and because of this, he could not produce it before the Court in the partition suit. 12. Even if, the stand taken by the appellant is assumed to be correct, one can safely conclude that appellant/plaintiff has not been vigilant in ascertaining the alleged fact about the execution of the Will and pressing it into service. Prima facie, it appears that the appellant/plaintiff after having lost the battle in the partition suit, realised that he has to face the consequences of the partition decree, whereafter he has come up and pressed into the service the Will allegedly executed by the father of the parties, the genuineness whereof, would be a question to be decided by the Trial Court. For proving the said Will, the appellant/plaintiff will have to do a lot of explaining before the trial having regard to the developments that have taken place after the death of the testator and pressing into service the Will. For this reason alone, it appears that there is no prime facie case in favour of the appellant/plaintiff. 13. There is yet another aspect of the matter, which is required to be noticed. The pleadings of the appellant/plaintiff at various stages of litigations between the parties have been at variance with each other. In the suit, which is subject matter of the appeal, it has been claimed by the appellant that defendant No. 1 is residing outside the suit house and that plaintiff is in exclusive possession of the suit house. In the written statement filed by the appellant/plaintiff to the suit for partition a different version has been put up by him. In fact a joint written statement has been filed by the appellant and respondent No. 1 in the said suit. It has been pleaded that ownership rights of the plot on which the house was built had vested only upon the said defendants i.e. appellant and respondent No.1. In fact a joint written statement has been filed by the appellant and respondent No. 1 in the said suit. It has been pleaded that ownership rights of the plot on which the house was built had vested only upon the said defendants i.e. appellant and respondent No.1. It has also been pleaded that the father of the parties had sold half of the plot to meet the expenses of marriage of his daughters and the remaining part of the land, where two rooms, kitchen and store are constructed is in occupation of the defendants i.e. appellant and defendant No.1 in equal shares. Not only this, it has been pleaded in the written statement filed by the appellant in the said case that respondent No.1 herein and his wife were contributing towards the house hold expenditure as also for construction and it is respondent No.1, who made and constructed one room and one kitchen with his exclusive investments, which is in his possession till date. It is further pleaded in the written statement filed in the said suit that respondent No.1 herein has spent huge amount over the aforesaid construction. 14. Thus, on the one hand the appellant/plaintiff claims to be owner in exclusive possession of the suit house but on the other, in the previous suit for partition, he has taken an entirely different stand even on the question of possession. He has pleaded that it is respondent No. 1, who had raised construction on the portion of the suit house. If that is so, even if it is assumed that late Amrit Lal Sawhney had executed a Will in favour of the appellant/plaintiff, still then he cannot have any claim over the portion of house, that has been constructed by respondent No.1 from his own funds. On this ground also, the fresh version of facts given by the appellant/plaintiff became doubtful. Thus, he does not have a prima facie case in his favour. 15. For the foregoing discussion, the trial court has rightly refused to grant discretionary relief of temporary injunction in favour of the appellant/plaintiff. Therefore, I do not find any ground to interfere with the order passed by the learned trial court. The appeal lacks merit and is dismissed, accordingly.