The main legal point established is the enforcement of court orders and the removal of physical obstructions to ensure the free egress and ingress of the appellant over the pathway.

JUDGMENT :

Arindam Lodh, J.

1. Heard Mr. S. Deb, learned Sr. counsel assisted by Mr. S. Bhattacharjee, learned counsel appearing for the appellant. Also heard Mr. K.N. Bhattacharjee, learned Sr. counsel assisted by Mr. D. Debbarma, learned counsel, appearing for the respondents.

2. This is an appeal filed under Order XLIII, Rule 1 of the Civil Procedure Code, 1908, challenging the order dated 17.03.2020 passed by the learned Civil Judge, Sr. Division, in case No. Civil Misc. (Vio) 26 of 2018 arising out of Civil Misc. 46 of 2017 in connection with Title Suit No. 15 of 2016, titled as Shri Sudarshan Sharma, petitioner Vrs. Shri Raja Paul and Bijoy Kumar Paul, opposite party-respondents.

3. Briefly stated, the appellant here-in as plaintiff instituted a suit for declaration of his right to use the pathway described in Schedule-B of the plaint. Along with this declaratory suit the appellant also had filed an application under Order XXXIX, Rules 1 & 2 of CPC. The learned trial court after hearing the petition for injunction under Order XXXIX, Rules 1 and 2 passed an order granting temporary mandatory injunction meaning thereby the structure erected on the pathway obstructing free egress and ingress of the plaintiff over the suit pathway has to be removed or demolished. Being aggrieved of that order, the opposite parties had preferred appeal under Order XLIII, Rule 1(r) of CPC before the court of learned District Judge, North Tripura, Dharmanagar. Learned District Judge also confirmed the order passed by the learned trial court granting temporary mandatory injunction demolishing structures erected on the pathway obstructing free egress and ingress of the plaintiff.

4. Against those orders, the respondent-opposite parties had preferred a revision application under Article 227 of the Constitution of India. It was registered as CRP 102/2016 titled as Sri Raja Paul & Another Vrs. Sri Sudarshan Sharma. A coordinate bench of this Court while disposing of that revision petition had observed thus:-

"15. This court has also carefully read the sale deed by which the plaintiff-respondent purchased the suit land. There is no mention of the said pathway except while describing the southern boundary it has been described as the egress and ingress path. This is not a transfer of the said path, but it recognizes the path. Whether that a description would create a right in favour of the plaintiff-respondent or not, is a matter of adjudication and at this stage this court would not make any observation inasmuch as that may affect the process of adjudication of the suit. Even no reliable prima facie material as to existence of the alternative path for ingress and egress from the suit land is available in the records of the trial court.

16. Having regard to all these aspects, this court does not find that the courts below have exercised the jurisdiction illegally or beyond their authority. However, this court is of the opinion that the temporary mandatory injunction as issued pending disposal of the suit is required to be modified. Without removing the brick wall or the gate that has been fixed, it is directed by this modified temporary mandatory injunction that the defendants shall keep the gate open for movement of the plaintiff or his men over the path as described on the southern boundary of the suit land. In terms thereof, this petition is disposed of."

5. Since the respondents did not act upon the order of this court to allow the plaintiff for his free egress and ingress over the suit pathway, the plaintiff filed an application under Order XXXIX, Rule 2A of CPC for violation of the order of this court. The respondents filed objection. Evidences were recorded. During the proceeding, the learned trial court had passed an order appointing a survey commissioner to have an overview of the nature and character of obstruction faced by the petitioner-plaintiff. The Survey Commissioner issued notice upon the parties. Thereafter, on the schedule date and time Su