Interim orders do not determine property rights; such matters are reserved for trial.

JUDGMENT

The petitioners have challenged an order, whereby they have been directed to remove certain obstructions in plaint B schedule way and restore the said way to the status prior to the suit. The petitioners are the defendants. The respondents/plaintiffs claim that plaint B schedule is a way which leads to their property which is scheduled as plaint A schedule. According to the plaintiffs, the property of the petitioners is situated to the south of plaint B schedule way. Ext.P1 is the plaint. The main prayer in the suit is for a mandatory injunction to remove 'C' schedule fence. The counsel for the petitioners submits that by the interim order, the main prayer in the suit itself has been granted even without taking evidence. The petitioners point out that the plaintiffs do not have a case that they are using the way as an easement and that the plaintiffs also do not have a case that plaint B schedule belongs to them. Even as per the plaint, what is stated is that on the southern side of the plaintiffs' property, the petitioners have left 3 metres and put up a fence on their northern side; which would suggest that the area left out belongs to the defendants. During argument, however, it is stated that the plaintiffs and their vendor had surrendered portions of their properties for putting up the way. An ex parte commission was taken out and a report has been filed which would show the existence of a way. According to the petitioners, it is not a way over which any right can be claimed by the plaintiffs. It is also pointed out that the nature of right has not been specified in the plaint. The interim order granted by the trial court has been confirmed in appeal. It is in the above circumstances that this original petition is filed.

2. This Court had initially granted stay of operation of the orders. The respondents have filed a counter affidavit producing along with two documents. Ext.R1(a) is stated to be a complaint filed by the 2^nd petitioner's wife to the Station House Officer, Cherthala Police Station on 20.10.2022, which is prior to the suit, wherein there is a statement that they had surrendered portions of their properties for putting up a way. Ext.R1(b) is a report from the Village Officer to the Tahsildar sent on 27.04.2023, which also says about a way. The said report has been prepared on the basis of a complaint filed by the plaintiffs and it is stated therein that the plaintiffs had no other way to reach their property. The question whether the plaintiffs have other way to reach their property and the nature of their right are all matters which will have to be decided after the trial. The impugned order has been issued based on the report of the Advocate Commissioner regarding the existence of the way and the user of the way. The court has found prima facia case and balance of convenience in favour of the petitioners and that irreparable injury will be caused if an interim order is not granted. The appellate court has relied on Document No.3 in which the Village Officer had reported two instances of obstruction along the plaint B schedule and had recommended the intervention of the Tahsildar to remove the obstructions. It is relying on Exts.R1(a) and R1(b) that the appellate court has by Ext.P6 order modified the order to the limited extent that X1 fence alone be removed. Since a reading of the orders would suggest that it has been issued more for the convenience of the parties during the pendency of the lis, I do not think it is necessary to go into the issues in this original petition.

The original petition is dismissed. However, it is made clear that neither the impugned orders nor this order shall in any way be treated as a decision regarding the right of the petitioners over plaint B schedule and the nature of the right and the question whether the plaintiffs are entitled to use the same