Faced with concurrent findings against them, the defendants in O.S.No.365 of 2011, who suffered an interim order in I.A.No. 2540 of 2011, have come up in revision.
2. The suit related to B schedule pathway which according to the plaintiff, began from a public road on the eastern side and ran towards the west along their northern boundary. He pleaded dedication of property which resulted in the B schedule pathway. Alleging that the defendants, when with the intention of appropriating a portion of the pathway and annexing that portion to their property, put up obstruction to deny the right of way to the plaintiffs, the suit was laid. I.A. No. 2540/2011 was laid seeking mandatory injunction to remove the obstructions caused to the way by the defendants.
3. The interlocutory application was resisted by the defendants. They pointed out that there was never a way with respect to about 15 metres starting from the eastern public road towards west and B schedule pathway which according to the petitioners alleged was running along the northern boundary of the property did not cover the portion of the property owned by the defendants. They also pointed out that going by the averments in the plaint, that portion of the property could not have been dedicated by the predecessors-in-interest of the plaintiff, for, they had no right over that portion of property. On the basis of these contentions, they prayed for a dismissal of the interlocutory application.
4. For the purpose of the interlocutory application, the court below had Commissioner report before it and marked Ext. A1 from the side of the plaintiff and Exts. B1 to B3 from the side of the defendants.
5. Mainly based on the Commissioners report, the trial court as well as the lower appellate court came to the conclusion that the plaintiff has been able to establish a prima facie case and granted interim mandatory injunction as prayed for.
6. The learned counsel appearing for the revision petitioners contended that both the courts below have erred both on facts and in law in holding that there does exist a pathway shown as B schedule. It was specifically contended that, that portion of the pathway beyond a point where the second obstruction has been alleged to be caused from the eastern side, never belonged to the predecessors-in-interest of the plaintiff and there could not have been a dedication by predecessor-in-interest of the plaintiff of that portion of the alleged pathway. The fact that in the partition between the plaintiffs, their northern boundary is shown as the pathway does not take them anywhere for the reason that even assuming that there was a pathway that does not extend beyond the western boundary of the property owned by the second defendant still the boundary would be the same. According to the learned counsel, the plaintiffs had filed a complaint before the executive authorities and the Village Officer who had visited the property, categorically reported that there was no way in existence as alleged by the plaintiffs and they had only a way running towards the western side and then proceeds extending to the northern side. It was thereafter that the suit was laid alleging the existence of way and alleged obstruction by the defendants. The learned counsel pointed out that the finding is essentially based on Commission report taken out exparte and the defendants have sought for remission of the Commission report. It is therefore contended that the order passed by the court below cannot be sustained in law.
7. The learned counsel appearing for the respondent on the other hand contended that the revision itself is not maintainable in view of the proviso to Section 115 of Cr.P.C.. Further it was contended that both the courts below were prima facie convinced by the Commissioners report that the pathway did extend beyond the obstruction put up by the defendants towards the eastern side and the B schedule pathway started from the public road on the eastern side. The learned counsel drew attention of this Court to the fact that even assuming that the case of the defendants to be true, there was no necessity to put up a granite stone on the mouth of the pathway for the simple reason that even according to the defendants, the pathway extended only to the granite stone laid till the western boundary of the property owned by the second defendant on the southern side. A reading of the Commissioners report would clearly show that in between the property owned by the defendants, there is a stretch of land which would appear to be a continuation of the B schedule pathway and this fact had impressed the court below to come to the conclusion that there was a pathway in existence which has been interfered with by the defendants. Even assuming this Court could exercise its power under Article 227 of the Constitution of India, the learned counsel went on to contend that the jurisdiction is extremely limited and it is intended only for the purpose of verifying whether the courts below have acted within their jurisdiction. Finding of the existence of a pathway is a question on fact arrived at on an appreciation of the available materials and it could not be said that in finding so, the courts below have exceed their jurisdiction. If that be so, no interference is called for in the findings of the courts below.
8. One must remember that an interim mandatory injunction is a harsh remedy and it is seldom granted. In the case on hand, an interim mandatory injunction has been passed in favour of the plaintiffs.
9. The suit relates to the B schedule pathway which is alleged to be running along the northern boundary of the plaintiffs' property. The plea is one of dedication and the pathway is said to be a public pathway. The records show that it leads to the paddy fields on the western side. According to the plaintiffs, the pathway begins from the eastern public road and goes towards the west. The defendants on the other hand contended that the dedication pleaded by the plaintiffs can have no legs to stand on for the simple reason that the property covered by a portion of the pathway did never belong to the predecessor-in-interest of the plaintiff and therefore, they could not have been a dedication of that portion of the property for the formation of pathway. The further contention is that there is no allegation in the plaint that the predecessor-in-interest of the defendants had dedicated any portion of their property for the formation of pathway.
10. One must remember that the issue is at an interlocutory stage. The question is whether there is a prima facie case made out by the plaintiffs entitling them to a relief as now given by the courts below. Both the courts below have placed considerable reliance on the Commissioners report. It is true that the documents produced by the defendants namely Exts. B1 to B3 do not show pathway as any of their boundaries. It is also true that the fact that the boundary of the plaintiffs' property on the northern side is shown as the pathway may not by itself is sufficient to come to the conclusion that the B schedule pathway exists as alleged by the plaintiffs. But it is here that the Commissioners report assumes importance. The Commission was taken out on the day on which the suit was laid. The Commissioner has filed a plan which shows the existence of the pathway. It is pointed out by the Commissioner that at the beginning of the pathway, that is where the pathway begin from the public road on the eastern side, granite stones are seen laid and so also 15 metres from the eastern end towards the west another obstruction is also seen. The length of property which lies in between these two obstructions is 15 metres and the Commissioner specifically stated that it looks like a way. The Commissioner has also noticed that on the northern side of the said portion is the property belonging to one of the defendants and there is no boundary separating the property for pathway except a row of trees. On the southern side the property of the defendants is separated by a mud mound of about 3 to 4 feet in height. It is also noticed by the Commissioner that on the eastern side of the granite stone at the mouth of the pathway, there is a newly laid fencing. It is significant to notice that the fencing and the wall is on north-south of pathway and it neither extends on the northern or southern side of the said obstruction caused to the pathway.
11. It is true that the plaintiffs had complained to the executive authorities and the Village Officer might have reported that there is no pathway in existence. But the suit was laid and the Commissioners report indicates otherwise.
Prima facie it is difficult to accept the case of the defendants that there is no way as alleged. However, it is a matter for deeper probe and it is pointed out by the defendants that they have sought for setting aside the Commissioners report and that application is still pending.
12. Whatever that be, both the courts below have appreciated the materials on record and have come to the identical conclusion that there does exist a pathway which has been interfered with by the defendants. This finding, as rightly pointed out by the learned counsel for the respondent, is essentially a question of fact based on appreciation of the materials before the courts below and it could not be said that the courts below have exercised their jurisdiction improperly, irregularly or illegally. If that be so even if this petition is to be treated as one under Article 227 of Constitution of India, no interference is called for.
However, it is made clear that the suit shall be disposed of untrammeled by the observations made by any of the courts at the time of disposing of the interlocutory application.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE