JUDGMENT
L. Mohapatra, J.
1. Defendant No. 1 is the petitioner before this Court in this revision challenging the order passed by the learned Civil Judge (Jr. Divn.), Anandapur directing him to remove the obstruction from the path way and confirmed in appeal by the learned District Judge, Keonjhar, on an application under Order 39, Rules 1 and 2 C.P.C.
2. The plaintiffs opp. parties have filed the suit for a declaration that they and the villagers have their easementary right ever the path way running on the scheduled lands and they have been using the said path way to the knowledge of the defendant No. 1 petitioner as a ‘Rasta’ to go to the river Baitarani for taking bath, getting drinking water and for other purposes from the time immemorial even though the said land has been recorded in the name of the petitioner and a prayer has also been made in the suit for a direction to the defendant No. 1 petitioner to remove the obstruction put by him on the said passage and for permanent injunction restraining him from obstructing the said passage. On an application filed by the opp. parties under Order 39, Rules 1 and 2 C.P.C. learned Civil Judge (Jr. Divn.) considering the case of both the parties, allowed the prayer and directed the petitioner to remove the obstruction from the passage to facilitate the opp. parties to use the said passage and not to interfere with their easementary right pending disposal of the suit. The petitioner challenged the said order before the
learned District Judge, Keonjhar and the said appeal having been dismissed, the present revision has been filed.
3. Learned Counsel Sri Misra appearing on behalf of the petitioner submitted that in the present case to establish an easementary right, the plaintiffs – opp. parties have to prove a strong case for trial which should be of a higher standard than a prima facie case i.e. normally required for a prohibitory injunction. According to Sri Misra, since the opp. parties having not been able to prove a prima facie case even, orders passed by both the courts below are liable to be set aside. Sri S. S. Das, learned counsel for the opp. parties referring to the documents filed before the trial court submitted that not only the plaintiffs opp. parties have proved a prima facie case but also the documents show a strong case for trial and since orders have been passed taking into consideration these documents, this Court in exercise of the revisional jurisdiction should not interfere with the orders.
4. Considering the submissions made by the learned counsel appearing for the parties, I proceed to examine the case of the opp. parties in establishing a strong case for trial. As it appears from the plaint the suit land comprises of an area of 0.06 decimals in north-south direction extending from Bad-Danda of Anandapur to river Baitarani and the said suit land exists over Sabik plot Nos. 2511, 2512 and 2514 under Sabik Khata No. 78 of mouza Anandapur. The said land also corresponds to Hal Plot Nos. 4915 and 4916. There is no dispute that the defendants 2 to 6 are the original owners of the said property. The opp. parties claim to be using the suit land along with other villagers from time immemorial as their path way to river Baitarani. Defendant No. 2 who was the original land holder had sold different portions to different persons and the present petitioner is one of such vendees. The petitioner is alleged to have constructed a Chalia adjoining to the Eastern side of the suit land and is also alleged to be creating disturbances in the peaceful enjoyment of the easementary right claimed by the opp. parties and other villagers as a passage to river Baitarani. From the documents filed before the trial court, it appears that in a proceeding under the Orissa Estates Abolition Act initiated at the instance of defendant No. 2 this disputed passage was also taken into consideration and the authorities under the O.E.A. Act while considering plot Nos. 2511, 2512 and 2514 observed as follows :
“It is seen that the area as per details given below is being utilised forthe purpose of the road by the intermediaries, their transferees and under raiyats although. As per the R.O.R. it is recorded as Rasta since it is not being
possessed by anybody individually but is used in as Rasta. It is ordered to record the same as Rasta. This area should be excluded from the land to be settled in favour of the intermediaries.”
Therefore, it is clear that the passage existing on the aforesaid three Sabik plots was being used as a common passage and it was not in possession of anybody individually. It further appears that there was a proceeding under section 147 Cr.P.C. in the Court of the Executive Magistrate, Anandapur vide C.M.C. No. 56/99 and a report was called for by the Executive Magistrate. The report indicates that there is a foot-path from Bad Danda to river Baitarani measuring 10 kadis in width and 300 yards in length and it was found that the said passage is being used by the public since long. It was also reported that in the year 1998, the petitioners closed the foot-path keeping the bricks on the same leaving only 2′ gap on the said passage on 9.7.1999 the petitioner again completely closed the passage to harass the local public who are using the said land. The sale-deed under which the petitioner had purchased the land also indicates the existence of said passage. Therefore, in view of the documents filed on behalf of the opp. parties, it cannot be said that they have not been able to prove a prima facie case. Standard of proof as observed by the Apex Court in a decision reported in AIR 1990 SC 867 (Dorab Cawasji Warden v. Coomi Sarab Warden and others) appears to be satisfied. In the said decision, the Apex Court was of the view that the relief of interlocutory mandatory injunction are generally granted to preserve or restore status quo of the last non-contested status which preceded the pending controversy until final hearing when full relief may be granted or to compel the undoing of there acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. Since granting of such an injunction to a party who fails or who fail to establish his right at the trial may cause great injustice or irreparable injury to the parties against when it is granted, the plaintiff has to prove a strong case for trial which should be of higher standard than a prima facie case that is normally required for a prohibitory injunction. In the present case, not only observations made by the authorities under the O.E.A. Act but also order passed by the Executive Magistrate as well as sale-deed under which the petitioner had purchased the land clearly indicate the existence of a passage which is being used by the opp. parties for going to river Baitarani for a considerable length of time. The enquiry report submitted before the Executive Magistrate further indicates that the petitioner has put obstruction on the said passage to harass the public who are using the said passage for
going to river Baitarani. I am, therefore, of the view that the opp. parties have not only proved a strong case for trial but also have been able to prove a case of higher standard than a prima facie case that is normally required for a prohibitory injunction. So far as irreparable loss and balance of convenience are concerned, there being no dispute, I have not dealt with the same.
5. I do not find any reason to interfere with the orders passed by the courts below. The Civil Revision is accordingly dismissed. No costs.
6. Revision dismissed.