Judgment :- 1. laintiffs in a suit for injunction are the appellants before this court. The suit relates to a strip of land right across the property of the plaintiffs. Plaintiffs' property is sandwiched by the property of the defendant on the southern side and a Panchayat road on the northern side. Defendant's case is that he has got a right of way through the plaintiff's property. Plaintiffs did not admit such a right of way through their property and that too. somewhat middle of their property. The trial court, after considering the evidence in the case found that the defendant has established a right of way and he has adduced evidence to prove the user of the way for the requisite period of time. It also considered the findings of a Criminal Court in proceedings under the Criminal Procedure Code. Of course, the said proceedings ended in a Criminal Revision Petition before this court and the observations made by this court in the order in the Crl. R.P. also have been relied on by the trial court. The copy of the order in the Crl. R.P. is Ext. B3. The suit was dismissed. Defeated plaintiffs filed an appeal before the Subordinate Court, Manjeri. The appellate court confirmed the judgment and decree of the triai court. Now the plaintiffs appeal. 2. Two questions of law were framed for consideration in this second appeal. They read thus: (1) Whether the lower appellate court was right in dismissing the entire suit in a case where the appeal relates only to a right of way claimed by the defendant. (2) Whether the courts below are right in relying on the orders of the Executive Ist Class Magistrate's Court to uphold the defendant's plea of a right of way along the plaintiff's property. Counsel for the appellants rightly argued only the second question. 3. Counsel for the appellants submitted before me that in a suit for injunction, if the plea of the defendant is that he has got a right of way in respect of the suit property, the prayer for injunction can be refused only if the defendant establishes his right of way. This is so because when the defendant is claiming only a right of way, it postulates that the plaintiff has got possession and title over the property. This is so because when the defendant is claiming only a right of way, it postulates that the plaintiff has got possession and title over the property. But, if the defendant has got a legally recognised right to do certain things in the property of another and if that right is in peril, certainly, the defendant can protect that right. If the defendant can protect that right, the defendant can defend a suit where the plaintiff threatens the defendant from exercising that right. As I said earlier, these propositions of law are applicable only in case the defendant proves that be has got a legally recognised right-in this case, a right of way by easement. So, the crucial question that ought to have been considered by the appellate court should be the question whether the defendant in this case has established his case of right of way. 4. The appellate court simply relied on the orders in proceedings taken under the Criminal Procedure Code. The nature of the proceedings under S.144,145,146 and 147 of the Criminal Procedure Code is certainly preventive in character and the Magistrate has got only the power to pass temporary orders with the avowed purpose of preventing or averting a breach of peace. The Magistrate has no right or obligation to decide the rights of parties except for the purpose of temporarily keeping the parties to be at peace. This purpose is achieved under certain circumstances by appointing a receiver to be in possession of the property till the matter is decided by the civil court. In a Full Bench decision Brojendra Kumar v. Jitendra Chandra reported in AIR. 1960 Assam 111. Sinha C. J. speaking for the Full Bench said: "It cannot be laid down as a proposition of law that merely because an order has been passed under S.147. Criminal P.C., declaring a certain party to have the right to use a certain land as the pathway, which bad been closed by the other party, or declaring a party to be deemed to be in possession under S.145. sub-s. (4) Proviso 2. such an order fetters the discretion of the Civil Court under the provisions of 0.39, R.1 or R.2 as the case may be." 5. A reading of the appellate court judgment convinces me that the appellate court was under a misapprehension and did not postulate the correct proposition of law. sub-s. (4) Proviso 2. such an order fetters the discretion of the Civil Court under the provisions of 0.39, R.1 or R.2 as the case may be." 5. A reading of the appellate court judgment convinces me that the appellate court was under a misapprehension and did not postulate the correct proposition of law. It thought that since the orders passed by the Criminal Court in proceedings under S.147 of the Criminal Procedure Code, would fetter the discretion of the Civil Court under the provisions of 0.39 R.1 or R.2 as the case may be, the orders passed in the criminal proceedings are sufficient for negativing the claim for preventive injunction. T feel that this is the reason for the appellate court for not considering the question whether the defendant has established a case of an easement of right of way. The appellate court ought to have considered that question; it has not been done in this case. So, the second question formulated by this court at the time of admission has to be answered in favour of the appellants. 6. In the result, I set aside the judgment of the appellate court and direct the appellate court to consider the question of easement on the basis of the evidence in the case. Parties are directed to appear before the appellate court on 9th November, 1988. Send back the records immediately.