Order By means of this petition filed under Article 227 of the Constitution of India, the principal defendant in the Title Suit No.111 of 2006 has challenged the judgment and order dated 16.08.2013 delivered in Misc. Appeal No.13 of 2006 by the Addl. District Judge, No.2, West Tripura, Agartala. [2] The said miscellaneous appeal under Order XLIII Rule 1(r) was preferred by the principal defendant against the order dated 20.09.2006 passed by the Civil Judge, Jr. Division, No.1, Agartala, West Tripura in case No. Misc. 88 of 2006 arising from T.S. 111 of 2006. It is also not in dispute that the Civil Judge, Jr. Division, No.1, Agartala, West Tripura, the trial court in short, issued an adinterim order of injunction which was subsequently made absolute by the order dated 01.09.2006 in case No. Misc. 81 of 2006 which was filed earlier for issuing temporary injunction restraining the defendants from encroaching the suit pathway. On 02.08.2006, the plaintiff filed an application under Section 39 of the Specific Relief Act read with Section 94(2) and Section 151 of the C.P.C. seeking temporary mandatory injunction for removal of the RCC pillars and the iron gate fixed therewith on encroaching or obstructing the suit path described in Schedule-E of the plaint. The said application was registered as Misc. 88 of 2006. The principal defendant in order to resist such prayer contended by filing the objection that he constructed the pillars leaving the suit path and without encroaching any part of the suit path or creating any sort of obstruction on the pathway. There is no dispute that the said pathway has been elaborately described in Schedule–E to the plaint and that is admittedly an ejmali pathway conferring right to use to the plaintiff and the defendants. By the order dated 20.09.2006 passed in Misc. 88 of 2006, the trial court granted the prayer for temporary mandatory injunction directing the principal defendant, the petitioner herein to remove the iron gate, if installed over the suit path. For purpose of reference, the operative part of the order dated 20.09.2006 is extracted hereunder:- Therefore, the instant petition of the plaintiff petitioner is allowed with reservation that the defendant O.Ps are directed to remove the iron gate installed on 27.07.06 if the iron gate is with encroachment of the ejmali pathway of the plaintiff petitioner and defendant O.Ps. For purpose of reference, the operative part of the order dated 20.09.2006 is extracted hereunder:- Therefore, the instant petition of the plaintiff petitioner is allowed with reservation that the defendant O.Ps are directed to remove the iron gate installed on 27.07.06 if the iron gate is with encroachment of the ejmali pathway of the plaintiff petitioner and defendant O.Ps. The matter whether installed iron gate of defendant O.P No.1 is on ejmali pathway or own land of defendant O.P No.1 is subject to local verification by Survey Commissioner. However, the defendant O.P No.1 is directed to remove the iron gate so installed if the iron gate is on encroachment of ejmali pathway of plaintiff and defendants within 15 days of this order. Otherwise the plaintiff is at liberty to file application before the Court for the removal of the iron gate encroaching the ejmali road for the open use of plaintiff petitioner and defendant O.Ps at the cost of defendant O.P No.1. [3] It appears from the records that by the order dated 01.09.2006 delivered in Misc. 81 of 2006 arising from T.S. 111 of 2006, the trial court on the prayer of the plaintiff under Order XXXIX Rules 1 & 2 of the C.P.C. restrained the principal defendant from installing any iron gate on the ejmali pathway pending decision in the suit. The liberty was granted to the plaintiff to approach the trial court if he found that the principal defendant had been trying to encroach the ejmali pathway or erecting RCC pillars for installing iron gate over the suit pathway. The ad interim order of injunction as passed on 22.07.2006 had been made absolute by the said order dated 01.09.2006. It further appears that the said order dated 01.09.2006 was challenged by the principal defendant, the petitioner herein by filing miscellaneous appeal under Order XLIII Rule 1 of the C.P.C. being Misc. Appeal No.12 of 2006. By the judgment and order dated 16.08.2013, the said Misc. It further appears that the said order dated 01.09.2006 was challenged by the principal defendant, the petitioner herein by filing miscellaneous appeal under Order XLIII Rule 1 of the C.P.C. being Misc. Appeal No.12 of 2006. By the judgment and order dated 16.08.2013, the said Misc. Appeal was allowed on observing that since the principal defendant has categorically asserted that he had already constructed pucca pillars and fixed the iron gate prior to the institution of the suit and he had no way encroached any part of the suit path covered by the Schedule-E to the plaint, the order restraining the principal defendant by way of temporary injunction from constructing the pucca pillars or installing the iron gate ought not have been passed by the trial court. It has been further observed that the principal defendant has clearly admitted that the suit path is ejmali and he does not command the sole ownership over the suit path and accordingly, the temporary injunction passed in Misc. 81 of 2006 arising from T.S. 111 of 2006 was interfered with. Against that order dated 16.08.2013 delivered in Misc. Appeal No.12 of 2006 no challenge has been carried out by the plaintiff. However, Mr. D.R. Choudhury, learned counsel appearing for the respondent No.1 has placed on record that the case under Order XXXIX Rule 2(A) of the C.P.C. has been filed by the plaintiff for violation of the order dated 01.09.2006. [4] The sole question which arises for consideration of this Court is that whether the appellate court was legally correct in upholding the order of temporary mandatory injunction without ascertaining the location of the constructed pucca pillar and the iron gate as claimed to have been installed by the principal defendant, the petitioner herein? [5] Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner has submitted that in order to dispel any confusion, the principal defendant filed one application under Order XXVI Rule 9 read with Section 151 of the C.P.C. in Misc. 88 of 2006. [5] Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner has submitted that in order to dispel any confusion, the principal defendant filed one application under Order XXVI Rule 9 read with Section 151 of the C.P.C. in Misc. 88 of 2006. The plaintiff by filing an objection has resisted such prayer of appointing a Survey Commissioner contending that since the principal defendant has erected RCC pillars in both the sides of the ejmali pathway and has been making attempt of fixing iron gate on the illegally erected RCC pillars with a view to create disturbance and obstruction in the use of the ejmali pathway by the plaintiff, there is no reason for appointing any Survey Commissioner, having regard to the prayer made by the principal defendant. It appears from the order dated 20.09.2006 that the Civil Judge, Jr. Division, No.1, Agartala, West Tripura has directed the principal defendant to remove the iron gate installed on 27.07.2006, if the iron gate is installed with encroachment of the ejmali pathway with further observation that whether the iron gate has been installed on the ejmali pathway or on his own land by the principal defendant is subject to local investigation by the Survey Commissioner. However, the principal defendant has been directed to remove the iron gate so installed. On the face of the challenge as carried out by the petitioner herein by filing the said appeal being Misc. Appeal No.13 of 2006 the appellate court declined to interfere with the said order dated 20.09.2006. Mr. A.K. Bhowmik, learned senior counsel submits that the impugned order has been passed without appreciation, without regard to the relevant aspects and whimsically. [6] From the other side, Mr. D.R. Choudhury, learned counsel appearing for the respondents has strenuously argued that there is no infirmity in the impugned order inasmuch as the construction of the pucca pillar and installation of the iron gate have been categorically admitted by the principal defendant in his written objection. [7] In order to respond to the question as formulated, a cursory glance appears necessary to the nature of the suit. From the plaint, Annexure1 to this petition, it appears that the suit has been filed for declaration and for perpetual injunction. [7] In order to respond to the question as formulated, a cursory glance appears necessary to the nature of the suit. From the plaint, Annexure1 to this petition, it appears that the suit has been filed for declaration and for perpetual injunction. For reference, the reliefs sought in the suit are extracted hereunder: i. a decree for declaration that the suit land as described in the ’E’ is the Ejmali pathway of the parties to the present suit. ii. a declaration that the Defendant No.1 has got no right to create obstruction in the ejmali pathway i.e. in the schedule-E of the suit land by erecting pillars affixing irongate or any kind of gate. iii. a decree for permanent injunction restraining the Defendant No.1 from erecting RCC pillars and or affixing irongate or any kind of gate in the RCC pillars so erected illegally or of any kind of pillars and to create any kind of obstruction on the said schedule-E land i.e. on the suit land. iv. a decree for mandatory injunction directing the Defendant No.1 to remove the RCC pillars so have been erected by him illegally on the said Ejmali pathway as described in the schedule-E as the suit land within specific period failing which to demolish the said pillars by enforcing the decree. v. a decree for cost. vi. a decree for such other relief or reliefs in which the plaintiff is entitled as per the pleadings. [8] It is apparent that not only the perpetual injunction against the defendant No.1 from erecting RCC pillars and/or affixing iron gate by means of those RCC pillars and from creating any sort of obstruction in the use of the ejmali pathway has been sought, but a mandatory injunction has also been asked for removing the RCC pillars erected by the principal defendant illegally on the said ejmali path as described in the Schedule-E to the plaint, in failure of which, to demolish the said pillars by enforcing the decree. It has surprised this Court that how simultaneously the prayer for perpetual injunction and the mandatory injunction can be claimed in the manner as proposed by the plaintiff, the respondent No.1 herein. Such prayer can only be prayed when the plaintiff is not aware of the real fact or he has been deliberately suppressing some material facts from the court. It has surprised this Court that how simultaneously the prayer for perpetual injunction and the mandatory injunction can be claimed in the manner as proposed by the plaintiff, the respondent No.1 herein. Such prayer can only be prayed when the plaintiff is not aware of the real fact or he has been deliberately suppressing some material facts from the court. [9] From a bare reading of the impugned order dated 20.09.2006 passed in Misc. 88 of 2006, this Court has been taken aback noticing at the nature of the temporary mandatory injunction passed by the trial court. It is a contingent order. The mandatory temporary injunction has been passed to remove the iron gate installed on 27.07.2006, if the iron gate is installed on encroachment of the ejmali pathway. The Court while passing the said order dated 20.09.2006 as it appears was not prima-facie satisfied that an iron gate has been installed encroaching ejmali path. This Court is of the considered opinion that without such prima-facie satisfaction, the temporary mandatory injunction ought not have been passed by the trial court. Similarly, by the impugned order, the appellate court fell prey to the same misconception and observed that:- “So, considering the fact that when in this case it is admitted that the suit path is ejmali path way and admittedly the R.C.C. pillar were constructed on the western & eastern side of the path way it obviously transpired that the iron gate fixed therein stands on the suit path and in such a circumstances the order passed by the learned court below for removal of said gate on & from the suit path to prevent the ends of justice from being defeated for restoring the suit path in its original position for use and exercise the rights of the parties to the proceeding over the same subject to decision of the original title suit appears to be proper and justified specially when the appellant is not to face any hardship due to such removal when admittedly the suit path is ejmali path.” [10] The appellate court has travelled far beyond the pleaded fact to hold that ‘it obviously transpired that the iron gate fixed therein stands on the suit path’. This observation has been derived from Para3 of the application filed by the plaintiff under Section 39 of the Specific Relief Act read with Section 94(e) of the C.P.C. for granting temporary mandatory injunction for removing the iron gate which has been fixed on 27.07.2006. In Para 3 of the said application, it has been contended that the principal defendant has blocked the ejmali path. But the said assertion has been again denied by the principal defendant contending as under:- It is submitted in their connection that two R.C.C. pillars have been raised by the Opposite Party on land avoiding the ejmali pathway and the Iron Gate has been fixed therein from security point of view. The Opposite Party is an Agent of Indian Oil Corporation Ltd. (IOC) and dealing with petroleum products and huge financial transactions take place in his office situated on his plot No.3/B. The Iron Gate so fixed remains open from morning 0800 A.M. to night upto 0900 P.M. The each and every body has got free excess on the ejmali path towards Eastern side and in fact, the tenants of the petitioner as well as the Opposite Party are freely using the ejmali path to take drinking water from the tube well and also to attend the natural call on the Lavatory constructed by the Opposite-Party in his own land. There has been no inconvenience to any one due to fixing of the Iron Gate. Here it is mentioned that prior to fixing of the Iron Gate there was a bamboo made gate placed by the Opposite Party from security point of view and the same was in existence for past several years, i.e., more than 20 years and nobody raised any objection including the petitioner since that gate was also remained open from 0800 A.M. to 0900 P.M. presently the said bamboo made gate has been replaced by the Iron Gate without any change whatsoever on the ejmali pathway. Therefore, the plea advanced by the petitioner that he has put to serious hardship for the Gate is totally false and the said allegation has been brought solely with a view to harass the opposite-party to meet his personal grudge. Therefore, the plea advanced by the petitioner that he has put to serious hardship for the Gate is totally false and the said allegation has been brought solely with a view to harass the opposite-party to meet his personal grudge. It is to be noted that the proforma Defendant O.P., who has got similar right to the ejmali path, has not come forward with any allegation or plea against the use of the ejmali pathway and/or any obstruction due to fixing of the iron gate. This aspect alone is sufficient to establish that the plea advanced by the petitioner is imaginary and the same deserver no consideration by the Ld. Court. [11] Even a prayer for the local investigation had been made by the principal defendant. The principal defendant has admitted that ‘the RCC pillars have been erected by the opposite party on the side of the ejmali pathway. Therefore, there is no encroachment on the ejmali pathway and as such, question of removal of the same does not arise at all.’ It is to be noted that the temporary mandatory injunction passed by the order dated 20.09.2006 was not called in question by the plaintiff, even though it is contingent one. On the face of the records, it cannot be gathered how the appellate court came to prima-facie satisfaction that the iron gate has obviously been fixed on the suit path and based on this observation, he affirmed the order dated 20.09.2006. This Court is not at all persuaded by such observation. Apart that, grant of this relief amounts to grant of the main relief prayed in the suit without adjudication. Purpose of granting temporary injunction is to protect the property from danger. Such interim relief cannot by implications decide the issue involved in the suit in any manner. Thus, the impugned order is interfered with and set aside. However, in the circumstances, it appears necessary to pass an interim order which shall be in force till disposal of the suit. [12] Having regard to this observation, the petitioner, the principal defendant in the suit is directed not to create any obstruction in the use of the ejmali pathway. While passing this temporary injunction, this Court has taken note of the statement made by the principal defendant in his objection filed in Misc. [12] Having regard to this observation, the petitioner, the principal defendant in the suit is directed not to create any obstruction in the use of the ejmali pathway. While passing this temporary injunction, this Court has taken note of the statement made by the principal defendant in his objection filed in Misc. No.88 of 2006 wherein he has categorically stated that he has not constructed any pillar or installed the iron gate encroaching any part of the ejmali pathway. The principal defendant is further restrained from indulging in any act, which might render the ejmali pathway inconvenient to be used by the plaintiff. [13] Subject to the said order of temporary injunction, this petition is partly allowed. There shall be no order as to costs. The interim order, if any, stands vacated. Send down the LCRs forthwith.