Contiguity of tenement is not essential for the purpose of an easement over a right of way.

1. THIS Rule relates to a judgment and order, dated february 19, 1974, passed in Misc. Appeal No. 727 of 1973 by the Additional District Judge, Alipore, reversing an order, dated September 3, 1973 passed by the 6th Court of Munsif, alipore, in Title Suit No. 451 of 1972. The aforesaid order arose out of the plaintiffs' petition under section 39 rule 1 and the defendants' petition under section 151 of the Code of Civil procedure for removal of a wall on a passage which was the subject matter of the suit.

2. THE proceeding arises out of title suit No. 45 of 1972 which was filed by the plaintiff for declaration of title and permanent injunction restraining the defendants from interfering with the peaceful possession of the suit property and from forcing a pathway over it. It was alleged in the plaint that strip of land ran from the east to west measuring 4 1/2 in breadth and 88' ft. in length curved out of C. S. Dag Nos. 518 and 517 of Mouza Akra Krishnanagar P. S. Maheshtala District 24 Paraganas. It is private passage according to the plaintiffs exclusively belonging to the plaintiffs and was used by them for the purpose of effecting repairs of their properties as also for passage of rain water. Defendants did not have any right over the strip of land at any time. On November 30, 1972, however, the defendants threatened to force a pathway through the suit property by breaking some portion of wall standing on the said passage. Plaintiffs, therefore, claimed the aforesaid declaration and injunction. Defendants in their written statement contended that they were owners of C. S. Plot No. 524 and the disputed land was a common passage for ingress and egress to their aforesaid plot of land where their home-stead is situated. On the west of the common passage is Akra Krishnanagar Road and on its east is the dwelling house of the defendants in plot No. 524. The defendants' case is that they had been using the disputed strip of land for more than 50 years. Defendants' further case is that besides the disputed strip of land there was no other way for ingress and egress to the plot No. 524. It will be noticed from the allegations that while the plaintiffs contend that the suit passage is from west to east it does not continue further east upto C. S. plot no. 524 which belongs to the defendants. According to the plaintiffs, after the passage lies a graveyard which also belongs to plot 519. Defendants, however, assert that the passage continues right upto plot No. 524 and is contiguous to the same.

The present proceeding arose out of plaintiffs' petition under Order 39 Rule 1 and the defendants' petition under section 151 of the Code of Civil procedure for removal of a wall on the said passage. Learned Munsif on a consideration of the materials on record which includes a report by the Commissioner submitted on March 26, 1973, found that the plaintiffs failed to prove prima facie that they had any case to go to the trial and the ex parte interim order of injunction which was earlier passed by the learned Munsif was vacated. Not only that, in order to make the order effective, the learned Munsif, an the application under section 151 of the Code of Civil Procedure filed by the defendants ordered the plaintiffs to remove the wall placed on the suit passage within one month from date.

3. IN appeal the learned Additional District Judge of Alipore did not dispute the finding of facts by the learned Munsif. He noted the evidence and other materials on record and directed the parties to maintain status quo and not to change the character of the suit land till the hearing of the suit. Thus he did not interfere with the order of injunction passed by the learned Munsif. At the same time, he felt that "a mandatory ad interim injunction can be thrusted upon in a case of breach of contract. " According to him, the learned munsif was not justified in granting the mandatory injunction as it was not the case of the defendants that there was a contrac