JUDGMENT & ORDER : 1. Both the appeals filed under Section 100 of the CPC being RSA No. 56 of 2012 [Sri Debdas Roy Chowdhury vs Sri Hare Krishna Roy Chowdhury & Another] and RSA No. 60 of 2012 [Sri Gangesh Roy Chowdhury vs Sri Hare Krishna Roy Chowdhury & Another] are clustered for disposal by a common judgment as these appeals arise from the common judgment of affirmation dated 31.08.2012 delivered in T.A. NO. 60 of 2011 and T.A. No. 68 of 2011. For convenience, it may be noted that the first appeal being T.A. 60 of 2011 was preferred by the appellant in RSA 56 of 2012 who was the defendant No.1 in T.S. No. 16 of 2002 and the first appeal being T.A. No. 68 of 1986 was preferred by the appellant in RSA 60 of 2012 who was the defendant No.2 in T.S. 16 of 2002. 2. The respondent No.1 in both the appeals instituted the suit being T.S. No. 16 of 2002 for declaration and mandatory and perpetual injunction against the appellant herein. The suit was decreed by the court of the Civil Judge, Jr. Division, Court No.1, hereinafter referred to as the trial court, in pursuance to the judgment dated 10.11.2011 in the following terms : “In the result, the suit of the plaintiff is partly decreed on contest with cost with a declaration that the Plot no. 4/A and 4/B, i.e. schedule ‘E’ and ‘F’ of the plaint are the Ejmali (common) pathway of the Plaintiff and Defendants as per Solenama and the compromise decree along with map in Case No. T.S. 68/86 and defendants have no right to create any obstruction in the said plot no. 4/A and 4/B of the map, i.e, in the ejmali pathway. Defendant No. 1 and 2 is hereby directed to remove obstruction which is created illegally in the Ejmali pathway under Schedule – E, i.e, plot No. 4/B of the map by erecting iron-net wooden framed fencing and bamboo fencing within one month from the date of the decree otherwise plaintiff will execute the decree as per the procedure established by law.” [Emphasis added] 3. Being aggrieved by the said judgment dated 10.11.2011, the appellants herein filed those appeals being T.A. No. 60 of 2011 and T.A. No. 68 of 2011 in the Court of the District Judge, West Tripura, Agartala. Being aggrieved by the said judgment dated 10.11.2011, the appellants herein filed those appeals being T.A. No. 60 of 2011 and T.A. No. 68 of 2011 in the Court of the District Judge, West Tripura, Agartala. In the course of time, those appeals were transferred to the court of the Additional District Judge, West Tripura, Agartala, Court No.5. Both the appeals were decided on the point whether the trial court was justified in granting mandatory injunction for removal of obstruction from the path way as described in the schedule appended to the plaint. The first appellate court on observing that in terms of the compromise deed, the path way as mentioned in Schedule-E and also in Schedule-F are meant for common use of the parties and anyone of the parties has his independent right of free use of the same. Thus, every one of them is debarred from making any obstruction or hindrance to the free use of pathway to the other. In their written statements, the defendants No.1 and 2 in the suit have admitted that they have set up gate in the said path way under Schedule E for safety and security reason. So existence of such gates is admitted by the parties. Thus, the onus shifts upon them to show that as per terms of the said compromise decree they were entitled to set up such gates. But they, according to the first appellate court, have failed to discharge that onus. Hence the first appellate court dismissed the appeals by affirming the judgment of the trial court by the judgment dated 31.08.2012 which has been challenged in these appeals. 4. At the time of admission, the following substantial question of law were formulated in the appeals by the order dated 18.12.2012 : “Whether the judgment and decree passed by the courts below suffers from perversity?” Liberty was however reserved in favour of the appellants to propose any other substantial question of law at the time of hearing. 5. For purpose of appreciating the substantial question of law, the facts those are relevant to these appeals may briefly be noted at the outset. The parties in these appeals are full blood brothers and they inherited a tract of the land from their father which is situated at Agartala town at Masjid Road. The said land has been described fully in the schedule of the plaint. The parties in these appeals are full blood brothers and they inherited a tract of the land from their father which is situated at Agartala town at Masjid Road. The said land has been described fully in the schedule of the plaint. On 06.04.1970, the said land was partitioned amicably among the plaintiff and the defendants by a registered partition deed. The plaintiff, the defendant No.1 and the defendant No.2 got the land shown in the Schedules B, C and D respectively. 6. In the year 1986 some disputes arose between the parties and a suit being T.S. 68 of 1986 was instituted. However, the said suit was decreed following a deed of compromise (solenama) with a map attached thereto. The said solenama was executed by the plaintiff and the defendants. As per the said solenama, the plots No.1A and 1B of the attached map are the plaintiff’s property whereas the defendant No. 1 got plots No.2A and 2B and the defendant No.2 got plots No. 3A and 3B of the attached map. There were several disputes. But the dispute that is reflected in the suit is that the defendant No.1 had fixed two fencing made of iron net with two gates with lock and key on the ejmali pathway shown as 4B in the solenama, in violation of terms of the conditions of the said compromise decree. The defendant No. 2 also raised objection in respect of the sunsets on the door of the building, of the plaintiff, in the southern side on the plot No. 1A of the map. The defendants No.1 and 2 raised further objection against erection of the bridge over the common plot No. 4B connecting the buildings of the plaintiff on the plots No.1A and 1B as shown in the map which is part of the said decree on compromise. The defendants denied the allegations against them. But in the written statements they have alleged that the plaintiff encroached a substantial part of the common pathway, 4B in the said map. 7. The defendants denied the allegations against them. But in the written statements they have alleged that the plaintiff encroached a substantial part of the common pathway, 4B in the said map. 7. Several issues were framed but for purpose of appreciating the substantial question as formulated in this appeal, the following issue is only relevant : “Have the defendant No. 1 and 2 created obstruction illegally on the ejmali pathway under schedule- E by erecting iron net wooden framed fencing and bamboo fencing?” While deciding that issue, the trial court has returned the finding that the defendants placed the gate on the ejmali pathway, 4B of the map, in violation of the terms of the compromise decree. 8. Based on the finding, the said decree was passed by the trial court which has been affirmed by the impugned common judgment dated 31.08.2012. No other relief as prayed in the suit has been granted by the trial court. Since there was no appeal from the plaintiff, the first appellate court had no occasion to consider whether the plaintiff was entitled to any other relief or not. Thus the judgment of the trial court reached finality so far the other reliefs are concerned. 9. Mr. A.K. Bhowmik, learned senior counsel appearing for the appellants has specifically stated that the finding of the first appellate court is absolutely an outcome of misreading of the solenama (Exbt-3). He has referred to the relevant part of the solenama which reads as under : “(j) That, the Defdt No. 1 has his land marked as 2/A and 2/B in sketch map. That the Defdt No. 1 will be allowed to cover up the western portion of his land measuring 12 ‘ 11- ½ “ from the extreme western portion of the open space on the road in the air of the western part of the ejmali road by pucca roof or by tin shed without changing nature and character of the said pathway in any way and that for the convenient use of the Defdt. No. 1 he will be allowed to place 2 (two) iron grill doors at the eastern and western boundary lanes of his land marked 2/A on the (Contd....................p/8). Road marked 4/B in the sketch map. The said door will remain open throughout the day and in no case defdt. No. 1 he will be allowed to place 2 (two) iron grill doors at the eastern and western boundary lanes of his land marked 2/A on the (Contd....................p/8). Road marked 4/B in the sketch map. The said door will remain open throughout the day and in no case defdt. No. 1 will be allowed to close the same in day time.” 10. Based thereon, Mr. Bhowmik, learned senior counsel has questioned the finding of the first appellate court. The defendant No.1 in T.S. 68 of 1986 is the appellant in RSA 56 of 2012. By the impugned judgment, the finding of the trial court against Issue No. V has been affirmed whereby the defendant Nos.1 and 2 are mandated by way of injunction to remove the obstruction created by erection of iron net wooden framed fencing and bamboo-fencing within the time as stipulated therein as the said defendants have violated the terms and conditions of the solenama. 11. Mr. D. Deb, learned counsel appearing for the plaintiff-respondent No.1 has submitted that both the trial court and the first appellate court has correctly read the solenama inasmuch as both the defendants tried to obstruct the common pathway, 4B of the map. Even the finding of the trial court under Issue No. IV has been drawn in tune with the finding returned in respect of Issue No.V. Mr. Deb, learned counsel appearing for the said respondent has submitted that the letter and spirit of the said solenama is clear and unambiguous. Nobody can create obstruction on 4A and 4B pathways. 12. Having regard to the rival contentions as projected, this court has scrutinised the solenama and found that the finding of the trial court as affirmed by the first appellate court is grossly erroneous and emanates from the misreading of the said decree on compromise or the solenama inasmuch as in the Clause (j) there is a condition favouring the defendant No.1 of the suit, the appellant of RSA 56 of 2012 providing that the defendant No.1 will be allowed “to place 2 (two) iron grill doors at the eastern and western boundary lanes of his land marked 2/A on the road marked 4/B in the sketch map.” Thus the appellant in RSA 56 of 2012 is entirely correct that the finding of the trial court as well as the first appellate court is perverse. However the defendant No.2 cannot take advantage of the said condition and as such decree as passed by the trial court and the first appellate court against him cannot be said to be unsustainable. 13. Having held thus, the mandatory and perpetual injunction against the defendant No.1 (Debdas Roy Chowdhury), the appellant in RSA 56 of 2012 is liable to be set aside and accordingly it is set aside. But the defendant No.1 shall keep the gates open throughout the day time, from sunrise to sunset and he shall not obstruct the movement of the plaintiff during that time in any manner. However the same cannot be held in respect of the defendant No.2, the appellant in RSA 60 of 2012. Hence, the said appellant, the defendant No.2 in the suit, must remove the bamboo fencing (gate) as put up on the common pathway 4B and he shall not obstruct the said common pathway in any manner. Such removal by the defendant No.2 shall be complete within 2 (two) months from today. 14. In the result, the appeal filed by the defendant No. 1 being RSA 56 of 2012 stands allowed subject to what has been observed above. However, the appeal being RSA 60 of 2012 filed by the defendant No. 2 stands dismissed on affirming the judgment of the first appellate court. Draw the decree accordingly. Send down the LCRs thereafter.