JUDGMENT & ORDER : 1. This is an appeal filed under Section 104 (i) read with Order 43 Rule 1 (r) of CPC against the order dated 26.08.2012 passed by Civil Judge Senior Division No. II, Manipur East in Judicial Misc. Case No. 127 of 2012. The background from which the appellants filed the appeal is as follows: 2. The respondents (who shall thereafter be referred to as plaintiffs/respondents) filed an Original Suit registered as O.S. No. 21 of 2012 in the Court of Civil Judge Senior Division No. II, Manipur East praying for perpetual injunction against the appellants (who shall thereafter be referred to as defendants/appellants) to restrain them from entering and using a pathway measuring about 10 feet by width and 220 feet in length claiming it to be their private pathway constructed inside their own land being under Patta No. 335 (New), covered by C.S. Dag No. 644, of Village No. 58 Thongju. Along with the Original Suit, they also filed a Judicial Misc. Case in the same Court registered as Judicial Misc. Case No. 127 of 2012, praying for, temporary injunction to restrain the respondents (defendants in that case) from entering and using the same till the disposal of the Original Suit. 3. The plaintiffs/respondents’ claim in the misc. application is that the suit land is a part of their patta land and it is their exclusive private pathway. However, one Mr. N. Heiton Singh who was their close relative and lived in his own land situated on the west of the suit land was allowed to use the pathway on his request and with the understanding or under an agreement that a portion of his land which lies on the east of his land would be used by the plaintiffs/respondents in exchange. Mr. N. Heiton Singh left his land about 35 (thirty five) years ago and the defendants/appellants came and lived in his land about 25 years ago and continued to use the pathway as was done by Mr. N. Heiton Singh. But suddenly, in the month of June, 2012 the defendants/appellants asked the plaintiffs/ respondents to cut all the trees that they had planted in the land they were allowed to use by Mr. N. Heiton Singh under the agreement or arrangement as stated above and to vacate the place, thereby negating the terms of the agreement. N. Heiton Singh. But suddenly, in the month of June, 2012 the defendants/appellants asked the plaintiffs/ respondents to cut all the trees that they had planted in the land they were allowed to use by Mr. N. Heiton Singh under the agreement or arrangement as stated above and to vacate the place, thereby negating the terms of the agreement. The defendants/appellants having violated the agreement, no longer has any right to use their (plaintiff’s) private pathway. Therefore, they have to be stopped/restrained from using the same. 4. Against the claims and prayer of the plaintiffs/respondent, the defendants/appellants submitted that the pathway is a public by-lane connecting the locality of both the parties with the main road, and it is a khas land, therefore, used by all the people living in the same locality. They also submitted that the pathway being the only ingress and egress to and from their land to the main road they have been using the same for the last more than 40 years. Therefore, the plaintiffs/respondents are not entitled to use the same exclusively by preventing them. Without much going into details, the parties submitted documents in support of their respective claims before the Trial Court. The plaintiffs/respondents submitted the following documents: 1. Certified copy of the Jamabandi of the land under Patta No. 46 (Old) 335 (New) Dag No. 644, recorded in the joint name of N. Bira Singh and N. Achou Singh. 2. Certified copy of the Jamabandi of the land under Patta No. 46 (Old) 332 (New) Dag No. 568/641, recorded in the name of (Late) N. Heiton Singh. 3. Certified copy of Sketch map (Village map) 4. Jamabandi recorded with the name of N. Brojen under Patta No. 46 (old) 337/1291(New) Dag No. 648/1290. The defendants/appellants also submitted the following documents: 1. Certified copy of the Jamabandi of the land under Patta No. 64 (Old) 337/1290 (New) Dag No. 648/1595, recorded in the name of Ningombam Nabakishore Singh. 2. The certified to be Xerox copy of the report of circle Mandol, IE, SDC, IE, Bashikhong in c/w Demarcation Case No. 20/SDC/IE/(B) of 2011. 3. The certified copy of the order dated 27-4-2012 passed by the Ld. SDC/Bashikhong, Imphal East, Manipur in his Demarcation Case No. 20 of 2012. 4. 2. The certified to be Xerox copy of the report of circle Mandol, IE, SDC, IE, Bashikhong in c/w Demarcation Case No. 20/SDC/IE/(B) of 2011. 3. The certified copy of the order dated 27-4-2012 passed by the Ld. SDC/Bashikhong, Imphal East, Manipur in his Demarcation Case No. 20 of 2012. 4. The certified to be true copy of the application dated 30-7-2012 of the plaintiff No. 1, N. Bira Singh, filed in the court of SDO, Imphal East Porompat, in c/w Demarcation Case No. 1 of 2012/SDO(P)/IE/Reference Demarcation Case No. 20 of 2011. 5. The certified to be true copy of the order dated 16-8-2012 passed by the SDO, Porompat, Imphal East in his Revenue Demarcation Case No. 1 of 2012/SDO/(P)/IE. 6. 3 (three) photographs of the Strip of Govt. land/common road involved in the suit with negatives. 7. A copy of invitation card containing the date, the month and the year of the death of Late N. Heiton Singh and legal heirs of the deceased. The trial court, after hearing both the parties, granted the prayer of the plaintiffs/ respondents by an order passed on 26-08-2012 (impugned order) and thereby restrained the defendants/appellants from entering and using the pathway. The relevant portion/ operative portion of the judgment & order of the trial court is given here below: “14. Heard both the counsel at length and also perused the records filed by the parties. Information gathered from all the related documents on records dealing in such facts, the issue in hand besides other would be the legality of contradicting findings of the reports submitted by the different authorities as to the Revenue jurisdiction of the suit land, and principle of ‘settled possession’ since the dispute of approach road within the suit land is a matter purely of civil nature. These issues are material and require adjudication for which I find that a prima facie case is made out. 15. At this stage of the case it will be sufficed for the Court the public documents submitted by the parties and the admission made by the defendants to the effect that the petitioners are living in the suit land along with their families since for a long period of time. All these documents are public documents with the purview of Indian Evidence Act (1872) Section 74. All these documents are public documents with the purview of Indian Evidence Act (1872) Section 74. MLR & LR Act (1960) Section 43(3) lays down : “Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct.” It is also further pointed out that record of right is prepared on the basis of the Dag Chitha entries and that MLR & LR Rules (1961) Rule 66(2) provides that inquiry in the respect of dispute entry shall be decided on the basis of entry possession. Under Indian Evidence Act (1872) Section 114 read with illustration(e) Court may presume that the public documents relied upon and produced by the plaintiff/petitioners in support of their claim for title to the suit land i.e. plaint schedule land have been regularly and correctly prepared and maintained. The purpose of CPC (1908) Order 39 Rule 1 application is to keep the suit land or the property intake in dispute till final adjudication. In the facts and circumstances of the case, the petitioner/plaintiffs has shown a prima facie case for trial by this Court. Secondly, the plaintiffs/petitioners being the pattadar of the suit land in entitled by law to be protected in respect of its possession of the same and as such the balance of convenience shall lie in its favour. That is to say, the inconvenience to be faced by the plaintiffs/petitioner on the refusal to grant temporary injunction as prayed for shall ought-weigh the inconvenience to be faced by the defendants/O.Ps. on the grant of such injunction. Thirdly, refusal to grant temporary injunction as prayed for is most likely to cause the deprivation of the plaintiffs/petitioners right/title to the suit land which cannot be compensated by money. 16. At present it is necessary to protect the property which is the subject matter from being invaded in other words the suit land should not be disturbed. Subject matter involved in the suit has to be decided by proving facts on adduction of evidence. A conclusive determination has not yet arrived at the right of the parties in respect of any of the matters in controversy. As of now it appears that the plaintiffs have been in possession of the land claimed therein relying on the documents produced by the plaintiffs and the defendants and it should not be disturbed. A conclusive determination has not yet arrived at the right of the parties in respect of any of the matters in controversy. As of now it appears that the plaintiffs have been in possession of the land claimed therein relying on the documents produced by the plaintiffs and the defendants and it should not be disturbed. In view of the above analysis and observation for ends of justice the opposite parties/ defendants are restrained from committing trespass into the possession of the suit land by the plaintiffs/petitioners and also injected them to enter into the suit land till the final disposal of the main suit or until further order. However, my findings, it may not prejudice the trial of the main suit. Accordingly with the above findings and direction, this misc. case is disposed of. Announced in the open Court.” 5. Being aggrieved, the defendants/appellants have come to this court with this appeal on the grounds which are briefly stated as follows:- 1. That they have been using the pathway under dispute which is khas land, since the lifetime of their uncle, (Late) N. Heiton Singh, who died on 26.05.1988, as their only ingress and egress to and from their residence to the main road is an admitted fact. Therefore, preventing them to use the same abruptly by the impugned order has not only caused a lot of hardship and inconveniences to them but the same violated the settled principle of law applicable in such facts and circumstances. 2. That the learned trial court erred in not taking into consideration the boundaries between the land of the plaintiffs and the pathway which clearly shows that the pathway is not a part of the land of the plaintiffs as claimed by them while passing the impugned order. 3. That the Learned trial court did not take into consideration the documents including the photographs filed by the defendants/appellants while deciding the impugned order. 6. I have heard both the learned counsel representing the parties at length. They both submitted in the line of the respective pleadings of the parties: It is submitted by the learned Counsel for the defendants/appellants that the main suit itself is not maintainable as no permanent injunction can be granted without a decree declaring the title over the suit land. Therefore, the Judicial Misc. Case in which the impugned order was passed has no base to stand. Therefore, the Judicial Misc. Case in which the impugned order was passed has no base to stand. Learned counsel further submitted that since the issue of whether the pathway is a part of the land of the plaintiffs/respondents or not, and whether the defendants/appellants have been using the same with their permission under an agreement are issues yet to be decided, therefore, the injunction order preventing the defendants/appellants from using the same amounts to decreeing the suit even before the trial begins. Therefore, the impugned order cannot be allowed to stand. The learned counsel cited a Division Bench decision of the Hon’ble Supreme Court of India as reported in AIR 2005 SC 1444 wherein their Lordships, following the principle laid down in the case of Dorab Cawasji Warden v. Coomi Sorab Warden as reported in AIR 1990 SC 867 reversed the order of a Division Bench of Kolkata High Court, granting a mandatory order of injunction. The relevant portion of the judgment is given here below: 9. Having considered the arguments of the learned counsel for the parties and having perused the documents produced, we are satisfied that the impugned order of the Appellate Court cannot be sustained either on facts or in law. As noticed by this Court in the case of Dorab Cawasji Warden v. Coomi Sorab Warden (supra) ( AIR 1990 SC 867 ) has held that an interim mandatory injunction can be granted only in exceptional cases coming within the exceptions noticed in the said judgment. In our opinion, the case of the respondent herein does not come under anyone of those exceptions and even on facts it is not such a case which calls for the issuance of an interim mandatory injunction directing the possession being handed over to the respondent. As observed by the learned single Judge the issue whether the plaintiff is entitled for possession is yet to be decided in the trial Court and granting of any interim order directing handing over of a possession would only mean decreeing the suit even before trial. As observed by the learned single Judge the issue whether the plaintiff is entitled for possession is yet to be decided in the trial Court and granting of any interim order directing handing over of a possession would only mean decreeing the suit even before trial. Once the possession of the appellant either directly or through his agent (caretaker) is admitted then the fact that the appellant is not using the said property for commercial purpose or not using the same for any beneficial purpose or the appellant has to pay huge amount by way of damages in the event of he losing the case or the fact that the litigation between the parties is a luxury litigation are all facts which are irrelevant for changing the status quo in regard to possession during the pendency of the suit. 10. For the foregoing reasons, we are of the considered opinion the Appellate Court erred in reversing the order of the learned single Judge and granting a mandatory order of injunction. In view of our above findings, we think it appropriate that even the appointment of a receiver be it an interim order or otherwise the possession of the property in question is also unnecessary, hence the said appointment of receiver is also set aside. 11. For the reasons stated above, this appeal succeeds and the same is allowed. The order in appeal is set aside and that of the trial Court restored.” The principle of law as laid down in the Dorab Cawasji Warden v. Coomi Sorab Warden, 1990 (2) SCC 177. on which their Lordships placed reliance is as follows: “The relief of interlocutory mandatory injunctions are granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm.” The learned counsel further submitted that prima facie and balance of conveniences in this case is not in favour of the plaintiffs/respondents as the fact that the defendant/ respondents have been using the pathway, for the last so many years as their only ingress and egress to and from their homestead land to the main road is an admitted fact. Therefore, temporary injunction was not only uncalled for but is in violation of the very principle of law as provided under Order 39 Rule 1 of CPC. 7. The learned counsel for the plaintiffs/respondents submitted that the defendants/ appellants continued to enjoy the usage of the pathway in continuation of the permission granted to their predecessor in interest of the land they occupied with the condition that the agreement that was there between the plaintiffs/respondents and their predecessor that the strip of land lying on the eastern portion of their land will continue to be used by the plaintiffs/respondents in lieu of the pathway being used by them. But since the defendants/respondents have violated the agreement they no longer have any right to use the pathway, that is a part of the patta land of the plaintiffs/respondents. Therefore, the learned Trial Court was right in protecting the right of exclusive enjoyment of the private pathway of the plaintiffs/respondents by passing the impugned order. Learned counsel further submitted that the disputed pathway is never a Katcha land rather, it is part and parcel of the land of the plaintiffs/respondents and this is supported by the Jamabandi filed by them in the Trial Court. Therefore, the Trial Court was right in protecting their right by the impugned order. The learned counsel further submitted that there is another main road on the immediate west of the homestead land of the defendants/appellants. This is clearly seen in the map filed by the plaintiffs/respondents. Therefore, the Trial Court was right in protecting their right by the impugned order. The learned counsel further submitted that there is another main road on the immediate west of the homestead land of the defendants/appellants. This is clearly seen in the map filed by the plaintiffs/respondents. Therefore, the submission of the defendants/appellants that the pathway under dispute is the only ingress and egress to and from their homestead land to the main road on the east is not based on facts. Reasons and conclusions: 8. On perusal of the plaint of the plaintiffs/respondents filed in the Original Suit, and the written statement of the defendants/appellants, there is no dispute on the fact that the defendants/appellants have also been using the so called private pathway for a number of years (at least not less than 25 years). Therefore, the Trial Court’s conclusion that there is prima facie case and balance of convenience in favour of the plaintiffs/respondents is nothing but based on misconception of fact and law. The pathway/a by lane in dispute is neither claimed nor shown to be under the exclusive possession of the plaintiffs/ respondents, therefore leave alone balance of convenience, it is even difficult to make out a prima facie case in favour of the plaintiffs/respondents at least at this stage. Even assuming that the pathway is a part of the patta land of the plaintiffs/respondents they would need more than the documents they have filed to prove their case that the defendants/respondents have been using the suit path under the agreement they claimed to have had with (L) Shri Heiton Singh (predecessor of the defendants/appellants). Written agreement on that if there is any is neither file nor even mention. Therefore, at this stage, to grant such prayer should have been avoided, instead, the trial court should have expedited the trial and dispose the case at the earliest with all the evidence that would be provided by the parties. Written agreement on that if there is any is neither file nor even mention. Therefore, at this stage, to grant such prayer should have been avoided, instead, the trial court should have expedited the trial and dispose the case at the earliest with all the evidence that would be provided by the parties. In the main suit, it is yet to be decided as to whether the pathway under dispute is a part of the plaintiffs/respondents’ land under Patta No. 335(new), covered by C.S. Dag No. 644, of Village No. 58 Thongju and whether the same is their exclusive pathway; and if so, the defendants/appellants have been only permissive users of the same under the agreement as claimed by the plaintiffs; and if so, whether the plaintiffs can be excluded/ stopped from using the same in spite of the fact that they have been using the same for the last 25 (twenty five) years or more. Before settlement of such issues, the Trial Court having passed the impugned order more or less has decreed the suit in favour of the plaintiffs/respondents even before the trial begins. Therefore, such order cannot be allowed to stand in the light of the principal of law laid down by the Hon’ble Supreme Court mentioned above. Further, the suit is for injunction simpliciter, as such, it is not likely to take time for disposal. Therefore, grant of temporary injunction preventing thereby, people who have been using the pathway for so many years from using the same suddenly and abruptly surely is not a reasonable and just decision. 9. In a case where a prayer for temporary injunction is involved Rule 1 of Order 39 which reads as follows has to be kept in mind. Unless such conditions are fulfilled, no temporary injunction should be granted. Rule 1 of Order 39 CPC: “1. 9. In a case where a prayer for temporary injunction is involved Rule 1 of Order 39 which reads as follows has to be kept in mind. Unless such conditions are fulfilled, no temporary injunction should be granted. Rule 1 of Order 39 CPC: “1. Cases in which temporary injunction may be granted – Where in any suit it is proved by affidavit or otherwise:– (a) That any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; (b) That the defendant threatens, or intends, to remove or dispose of his property with a view to his creditors; (c) That the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. The court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.” Before the trial court, neither such pleadings as mentioned in the above stated provision of law is made in the plaint of the plaintiffs nor any fact or material is shown that will make it appear that such things are likely to happen during the pendency of the suit. As already stated above the only ground on which the plaintiffs filed the suit is that the defendants/appellants have not kept the agreement or understanding they had between them and the original owner of the land wherein the defendants/appellants have come to live, as such, they no longer have any right to use the pathway, therefore, they have to be prevented by an order of injunction from using the same. The pleadings in the plaint of the plaintiffs/respondents and the facts and circumstances of the case in my opinion does not call for an order of injunction such as impugned herein. The pleadings in the plaint of the plaintiffs/respondents and the facts and circumstances of the case in my opinion does not call for an order of injunction such as impugned herein. In a case of temporary injunction, one has to see not only whether the petitioner has prima facie case and balance of convenience on his side but also whether there is a threat, not of imagination or unfounded apprehension but imminent one, of causing any of the ones mentioned in the above provision of law. In this case, considering the nature of the property/subject matter under dispute and the fact that the defendants/appellants have also been using the suit path for the last so many years is not in dispute a prudent man would hardly even imagine that such things as mentioned under rule (I) of Order 39 CPC are likely to happen during the pendency of the suit unless the defendants/respondents are prevented from entering and using the path way. In fact there is no claim of exclusive possession of the pathway by the petitioner/respondents. Therefore, the question of protecting the exclusive possession or peaceful enjoyment of the disputed pathway by the plaintiffs/respondents does not even arise. In view of what has been stated above, the order granting temporary injunction (impugned order) cannot be allowed to stand. Therefore, the same is set aside. The parties shall maintain status quo ante. In other words, the defendants/appellants should be allowed to continue usage of the pathway under dispute pending disposal of the suit. The Trial Court shall do well in completing the trial of the suit at the earliest, preferably within a period of 6 (six) months and dispose the same in the interest of justice.