JUDGMENT: 1. Heard Sri O. Manohar Reddy, learned counsel representing appellant and Sri Kuncheam Maheswara Rao, learned counsel representing respondent. 2. This civil miscellaneous appeal is filed by the unsuccessful petitioner- appellant as against an order made in I.A.No.581 of 2008 in A.S.No.5 of 2008, dated 04.8.2008, on the file of the Senior Civil Judge, Gurazala, under Order XLIII Rule 1 of the Code of Civil Procedure (hereinafter in short referred to as "the Code" for the purpose of convenience). 3. The said application was filed by the petitioner-appellant under Order XXXIX Rules 1 and 2 of the Code praying for temporary injunction restraining the respondent from causing obstruction to the petitioner in using the pathway on the north-east of the respondent plot to cultivate his land. The learned Senior Civil Judge, Gurazala, after referring to the respective stands taken by the parties in the affidavit filed in support of the application and the counter, recorded reasons at paras 6 to 9 and came to the conclusion that no prima facie case had been made out by the petitioner-defendant and there is no balance of convenience in favour of the petitioner-defendant and, hence, the petitioner- defendant is not entitled for the equitable relief of temporary injunction and accordingly dismissed the application. Aggrieved by the same, the present civil miscellaneous appeal had been preferred. 4. Sri O. Manohar Reddy, learned counsel representing the appellant- petitioner would maintain that having regard to the fact that the property had been purchased in the year 1945 and also the fact that initially the property of the appellant and that of the respondent originally belong to one owner and the appellant has been using the passage in question all these years, the appellate court ought to have allowed the application for temporary injunction pending disposal of the appeal. The learned counsel also pointed out that the appellate court totally erred in Law in dismissing the application for grant of temporary injunction on the ground that an application filed by the appellant and also the application filed by the respondent during pendency of the suit had been closed and, hence, the appellant was not entitled for temporary injunction. The counsel also would maintain that the appellate court totally erred in Law in dismissing the application for temporary injunction on the ground that the appellant failed to establish his easementary right. The counsel also would maintain that the appellate court totally erred in Law in dismissing the application for temporary injunction on the ground that the appellant failed to establish his easementary right. The counsel also would maintain that the appellate court ought to have appreciated the fact that the suit was filed by the respondent for permanent injunction and a counterclaim was filed by the appellant and, hence, the question of claiming declaration relating to easementary right would not arise. The counsel also pointed out to the relevant portions of the order and would maintain that in the facts and circumstances of the case, the relief of temporary injunction should have been granted by the appellate court during the pendency of the appeal. The learned counsel also placed reliance on certain decisions to substantiate his submissions. 5. On the contrary, Sri Kuncheam Maheswara Rao, learned counsel representing respondent had pointed out to the respective stands taken by the parties and would maintain that the applications praying for temporary injunctions filed by both the parties I.A.No.1076 of 2004 and I.A.No.879 of 2004 i.e., both by the plaintiff and defendant in the suit, were closed on 19.12.2006. Hence, there was no temporary injunction in favour of the petitioner-appellant-defendant before the court of first instance during the pendency of the suit. Apart from this aspect of the matter, the learned counsel also would point out that when the appellant is claiming pathway on the land of the respondent, it is for him to establish prima facie the easementary right and when there is an alternative way, especially, in the light of the respective stands taken by the parties, the prima facie findings recorded by the appellate court cannot be found fault. The learned counsel also pointed out to the relevant findings recorded by the appellate court and also placed reliance on certain decisions to substantiate his submissions. 6. In the light of the submissions made by the counsel on record, the following points arise for consideration in this civil miscellaneous appeal: (1) Whether the order made by the learned Senior Civil Judge, Gurazala in I.A.No.581 of 2008 in A.S.No.5 of 2008 warrants interference by this Court in this civil miscellaneous appeal in the facts and circumstances of the case? (2) If so, to what relief the parties would be entitled? 7. (2) If so, to what relief the parties would be entitled? 7. Point No.1: For the purpose of convenience, the parties would be referred to as petitioner and respondent as shown in I.A.No.581 of 2008 in A.S.No.5 of 2008 aforesaid. 8. It is the case of the petitioner that the land of the petitioner and the land of the respondent are adjoining lands in the same S.No.504. On the East of the respondent land, there is a 'donka' leading to Ambapuram, which is present to East of both of the lands of the petitioner and the respondent. There is a pathway on the north-east of the plot of the respondent. Originally, the plots of the petitioner and the respondent belong to same owner. The respondent, as one of the owner, used the pathway for reaching the land for both the plots for agricultural purposes. Although the land was sold to different persons, the pathway is same to reach the entire extent in S.No.504. Due to disputes, the respondent is causing obstruction to use the pathway. 9. Counter had been filed denying the averments made in the affidavit filed in support of the application. It is stated that the petitioner is the defendant before the court of first instance and respondent is the plaintiff in the suit. The respondent filed the suit for permanent injunction and the petitioner filed written statement making counterclaim of the permanent injunction. The lower court decreed the suit in favour of the respondent/plaintiff and dismissed the counterclaim of the petitioner/defendant. Although the petitioner/defendant claimed that there is a pathway shown as ABCD in his plan, he has not proved the same and no document is filed. He has not filed any commissioner application and the respondent/plaintiff filed I.A.No.1143 of 2004 for appointment of an advocate-commissioner, which was resisted by the petitioner/defendant. The petitioner has not mentioned the measurements of the alleged pathway. There is a cart track on the western side of the land of D.W.3 and the petitioner has to pass through the passage only and enter his land through the land of D.Ws.4 and 2. There is no pathway at all in the land of the respondent /plaintiff at any point of time. 10. As already referred to above, the learned Judge recorded certain reasons at paras 6 to 9 of the order under challenge. There is no pathway at all in the land of the respondent /plaintiff at any point of time. 10. As already referred to above, the learned Judge recorded certain reasons at paras 6 to 9 of the order under challenge. The relief prayed for is the grant of temporary injunction restraining the respondent from causing obstruction to the petitioner relating to use of the pathway on the north-east of the respondent land to cultivate his land. 11. The learned counsel representing the appellant placed strong reliance on the decisions in N.V. Chowdary v. Hindustan Steel Works Construction Limited, Visakhapatnam1; S. Radhakrishna Murthy v. K. Narayanadas2 and Nawab Mir Barkat Alikhan v. Nawab Zulfiquar Jah Bahadur32. 12. The cardinal principles to be established while deciding an application praying for the relief of temporary injunction being well settled, the same need not be repeated again. 13. Further strong reliance was placed on the decision of this Court in Gannamaneni Veerraju and another v. Gannamaneni Udaya Bhaskara Rao and another4 wherein at paras 12 and 4 it was observed as hereunder: "As already referred to supra, while admitting the C.R.P., interim suspension had been granted on 23.2.2007. It is needless to say that the interim suspension granted by this Court has been in force sufficiently for a long time and now an application, being CRP.M.P.No.2214 of 2008 is filed to vacate the said interim suspension. There cannot be any doubt or controversy that temporary injunction in a mandatory form also can be granted, but this power has to be exercised only in exceptional cases and sparingly. Here is the case where an objection has been raised to the report of the Commissioner relating to alternative passage and further specific stand had been taken relating to the existence of alternative passage both in the counter and in the written statement. It is no doubt true that certain submissions were made relating third-party affidavits. Inasmuch as an application for temporary injunction would be decided on affidavits, counter-affidavits and third-party affidavits and also the other material which may be relied upon by the parties, and when third-party affidavits had been relied upon, it is the bounden duty of the Courts to refer to the contents of the third-party affidavits and record prima facie findings. Inasmuch as an application for temporary injunction would be decided on affidavits, counter-affidavits and third-party affidavits and also the other material which may be relied upon by the parties, and when third-party affidavits had been relied upon, it is the bounden duty of the Courts to refer to the contents of the third-party affidavits and record prima facie findings. It is needless to say that when certain prima facie findings are recorded in an interlocutory application, the suit may have to be decided not being influenced by any such findings. As already observed supra, whether serious prejudice would be caused to the respondents-plaintiffs since there is no other alternative way to reach their lands, this question also may have to be decided on appreciation of evidence, especially in the light of the specific stand taken by the revision petitioners in their pleading. The right to have a passage in the light of the sale deeds also may have to be gone into while deciding the suit in the light of the evidence which may be adduced by the parties." 14. The counsel for respondent further placed strong reliance on the decision in Vishwanath and ohers v. Wishwanath and others5 wherein the learned Judge of Rajasthan High Court observed at para 2 as hereunder: "It is no doubt true that a counter claim ordinarily could have been filed by the defendants-petitioners only if they asserted title to the suit property or at least to the extent of properties which they claim that it belongs to them but in this case admittedly the disputed property is not claimed by the defendants-petitioners and it is merely stated that the property is a public property and does not belong to the plaintiffs-petitioners. The dismissal of the counter claim in view of this plea of the defendants-petitioners cannot be said to be illegal or unreasonable but the total effect of the entire situation would be that the claim of the plaintiffs would virtually result into a situation where he can secure an ex parte decree in his favour for injunction as he would be in an advantageous situation since his claim would neither have to face any contest at the instance of the defendants-petitioners nor there would be anyone to contest on behalf of the State Government or the Municipal Corporation in regard to the land in question. When it was brought to the notice of the court below that the disputed land-as per the case of the defendants-petitioners is a public property, then the court below was duty bound to direct the plaintiffs-respondents to implead all the necessary and proper parties to the suit land in question or could have permitted the defendants- respondents to implead the Municipal Corporation as a defendant in regard to the property in question which has been alleged to be an unclaimed property. But instead of doing so, the court below has permitted a situation to prevail wherein the plaintiffs-petitioners will have no occasion to contest anyone in regard to his claim of title to the suit land and he can go to the extent of leading documentary evidence which will remain uncontested as to whether they are genuine or not. This kind of a situation ultimately is likely to result into passing of an uncontested decree and therefore although the impugned order to the extent of entertaining the counter claim of the defendants-petitioners cannot be interfered with in view of his admitted plea that the suit land does not belong to him, the court below in the interest of justice will have to consider whether the suit can continue in absence of proper and necessary parties in the wake of the plea of the defendants-petitioners that the suit property is an unclaimed property." 15. Further strong reliance was placed on the decision of the Apex Court in Ajay Mohan and others v. H.N. Rai and others6 where the pre-requisites for the entitlement of the relief of temporary injunction had been well discussed. 16. The respondent-plaintiff filed suit for the relief of perpetual injunction and the same was decreed. The petitioner-defendant had put forth a counterclaim for perpetual injunction, but the said claim was dismissed by the court of first instance. It is also not in serious controversy that both the parties filed applications praying for the reliefs of temporary injunctions I.A.No.1076 of 2004 and I.A.No.897 of 2004 and both the applications were closed on 19.12.2006. Further, on a careful reading of the respective stands taken by the parties in the respective pleadings, no specific plea relating to the easementary right had been put forth and no acceptable evidence in this regard had been adduced. Further, on a careful reading of the respective stands taken by the parties in the respective pleadings, no specific plea relating to the easementary right had been put forth and no acceptable evidence in this regard had been adduced. Hence, the findings recorded by the appellate court relating to the non- establishing of prima facie case and non-establishing of balance of convenience cannot be found fault. In the light of the same, the refusal of the relief of temporary injunction in the facts and circumstances cannot be said to be either unjust or improper. It is needless to say that the impuned order does not suffer from any illegality warranting interference in the present civil miscellaneous appeal. 17. Point No.2: In the result, the prima facie findings recorded by the appellate court are hereby confirmed. It is needless to say that these are only prima facie findings while deciding interlocutory application and the appeal may have to be decided on the merits and demerits in the light of the submissions, which may be advanced by the counsel on record. 18. With the above observation, the civil miscellaneous appeal shall stand dismissed. No order as to costs. ? 1 AIR 1984 AP 110 2 AIR 1982 AP 384 3 AIR 1975 AP 187 4 2008 (5) ALD 284 5 2002 AIHC 2247 6 (2008) 2 Supreme Court Cases 507