The dismissal of an application for interim

injunction is under challenge by petitioner-

defendant in the suit.

2. The respondents-plaintiffs filed the suit for

a permanent prohibitory injunction to restrain the

defendants from trespassing into the plaint B

schedule way, from taking any vehicle to the

defendants' property through the plaint B schedule

way and from obstructing the access to the plaint A

schedule through the plaint B schedule way. Along

with the suit the plaintiff filed I.A No.5387 of

2018 for an interim injunction of similar nature. On

the said application an order was passed on

23.11.2018 in the following terms:

“ Respondent and henchmen are

restrained by way of temporary injunction

from putting any materials in the B

schedule way and thereby obstruct way to

petition A schedule property or cause any

obstruction for passage to petition A

schedule property, until further orders.”

3. The defendants entered appearance and filed

written statement with a counter claim, for a

prohibitory injunction to restrain the plaintiffs

from obstructing the user of plaint B schedule way

(same as the counter claim B schedule way) for

access to the defendants' property. The defendants

also filed I.A No.6058 of 2018 for an interim

injunction of similar nature. As per the impugned

order the application was dismissed, against which

this appeal.

4. Heard the learned counsel on either sides.

5. As noticed supra, though the plaintiffs

sought for a prohibitory injunction to restrain the

defendants from trespassing into the plaint B

schedule way and from using the same, injunction was

granted by the trial court only to the extent of

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restraining the defendants from obstructing the user

of the plaint B schedule way. The said order,

insofar as it relates to the non-grant of injunction

regarding user of the way by the defendants, has not

been challenged by the plaintiffs. Admittedly, the

said order still stands.

6. The right of the both the plaintiff and the

defendants over the plaint B schedule way is in

dispute in the suit. The mere fact that one of the

boundaries

in

the

title

deed

of

the

defendants/appellants is shown as “private way”,

need not necessarily imply that the disputed way is

a private way of the plaintiffs. A reading of the

document shows that apart from mentioning about a

right of access, it is not mention as to which is

the access. Though the commissioner's report, which

is an ex parte one, shows an access to the property

of the third defendant, that is shown to have a

width of only 'one kole'. Further, no access is seen

to the property of defendants 1 and 2. The existence

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and right over the said way are all matters to be

considered in the suit.

7. On the facts as above noticed, it is only

proper that the user of the plaint B schedule way by

either of the parties be not obstructed by the

other, till the disposal of the suit.

8. In the result, this appeal is allowed. The

order impugned is set aside. The respondents-

plaintiffs are restrained by an order of injunction

from obstructing the user of the B schedule way by

the appellants-defendants 1 and 2.

No costs.

Sd/-

SATHISH NINAN

vdv

JUDGE