The central legal point established in the judgment is that the scope of the grant of easement must be determined by the terms of the contract between the parties, and the actions of the defendants constituted a nuisance, justifying the grant of mandatory and permanent injunction.

JUDGMENT

D. Dash, J.

1. This appeal has been filed challenging the judgment and decree passed by the learned Ad hoc Additional District Judge (FTC No. 1), Cuttack in R.F.A. No. 22 of 2007. The respondents had filed Title Suit No. 72 of 2002 in the Court of Civil Judge (Jr. Division) 1st Court, Cuttack for permanent injunction by restraining the appellants (defendant Nos. 1 and 2) from causing any obstruction on the joint passage better described Schedule-D of the plaint by raising any construction over it by putting any gate or in any other manner with further prayer of mandatory injunction directing them to demolish the boundary wall to remove the iron gate at the place on the land described in Schedule-D of the plaint and remove the same from the place within a time frame. The suit having been decreed, the present appellant as the unsuccessful defendants had carried the appeal. That has also not yielded any fruitful result for them. Therefore, they have filed the present appeal under S. 100 of the Code of Civil Procedure. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial Court.

2. The plaintiffs case is that the strip of land shown in blue colour in the sketch map annexed to the plaint as a part of it in Schedule-E of the dimension of 12 ft. x 46.7 Inch measuring an area Ac. 0.22 decimals and 8 links under Hal Plot Nos. 1338 and 1339 under Khata No. 599 in Unit-VII, Tulasipur of the town of Cuttack. It is stated that the property originally belonged to George Prasadananda Patnaik. The plaintiffs and the pro forma defendant being the successors in interest succeeded to the same. They transferred Ac. 0.070 decimals as per Schedule-A to Mrs. Helen Felica Wilson and others. The defendant No. 1 purchased Schedule-B property measuring Ac. 0.060 decimals under registered sale deed dated 7-6-2000 and then her husband purchased land of Ac. 0.32 decimals under registered sale deed dated 6-9-2000. It is the specific case of the plaintiff that at the time of alienation, they also clothes them with the right of way over the suit passage for common use of all of them to have their ingress and aggress from their respective houses to the Municipal road on the western side. It was clearly indicated therein as to the manner of use of the suit passage jointly by them as also the vender to retain their right of ownership over the same and accordingly all these were of reflected in the recitals of the respective sale deeds. It is alleged that the defendants unauthorizedly obstructed the suit passage by putting iron gate at a point and then raised the height of northern boundary wall situated on the said passage at another point as shown in the plaint. The plaintiff had initiated the proceeding under S. 144, Cr.P.C. but in defiance of the order, the defendants stealthily raised boundary wall for which the suit has to be filed.

3. The defendants in traversing the plaint averments besides taking technical objection as regards the lack of cause of action for the suit; maintainability of the suit on the ground that it is for injunction simpliciter; and that it is bad for non-joinder and mis-joinder of parties as also that the suit passage is not properly identifiable so as to non-suit the plaintiffs, have further averred that as per the present situation of the suit passage which was set apart by their vendors at the time of their sale of their lands to the respective purchasers to be used by them and the owners, now there remains absolutely no scope either for those persons or for the vendors to use the suit land which was left as passage for the purpose and in fact they have no necessity for the same. It is stated that they have abandoned said right since long. It is further stated that since the time of purchase, the respective purchasers are in exclusive possession of their properties adjoining the suit passage and they were earlier usi