JUDGMENT & ORDER : This is a petition under Article 227 of the Constitution of India against the judgment dated 06.10.2016 delivered in Civil Misc. Appeal No.05 of 2016 by the District Judge, North Tripura, Dharmanagar, affirming the order dated 27.09.2016 passed by the Civil Judge, Senior Division, Dharmanagar in Civil Misc Case No.36 of 2016 [arising from T.S. 15/2015]. By the said order dated 27.09.2016, the Civil Judge issued an interim mandatory injunction in favour of the respondent directing to remove the welding and the gate erected on the path under reference. 2. A brief resume of fact, essential for appreciating the challenge may very shortly be introduced in the beginning. The respondent filed a suit for declaration and injunction. For purpose of reference, the reliefs as urged in the suits are reproduced hereunder: (a) a decree for declaration that, the plaintiff has the right, title and interest over the suit land specifically described in the schedule given herein below. (b) a decree for declaration that, the plaintiff has right to enter into his purchased homestead land described in the schedule given here in below through his ingress and egress path and to enjoy his homestead land. (c) a decree of perpetual injunction may be passed in favour of the plaintiff restraining the defendants, their men, agents and any other person claiming through them from creating any obstruction to enter into his purchased homestead suit land and from disturbing the peaceful possession and enjoyment of the plaintiff over the suit land using his ingress and egress path to and from his purchased homestead land specifically described in the schedule given here in below and mandatory/perpetual injunction be passed against the defendants directing them, their men, agents to remove all obstruction if any over the entrance and exit path of the homestead and to keep the said exit and entrance path free and clear for entry and exit of the plaintiff and his men and person to his purchased homestead land specifically described in the schedule given here in below. 3. 3. The schedule as provided in the plaint is also reproduced as the land described in the schedule has been referred in the reliefs as reproduced herein below: SCHEDULE All part and parcel of the landed property measuring about 0.238 Acre under Khatian No.3119 Hal Dag No.7188 (0.073 Acre), Hal Dag No.7196 (0.069 Acre), Hal Dag No.7197 (0.096 Acre) corresponding to Sabek Dag No.6247/9534, 6244 & 6245 under Mouza Dharmanagar Town, T.K. Dharmanagar, North Tripura, Sub-Registry Office Dharmanagar, bounded by: North : Brajendra Banik South: Ingress egress path and Tarun Singha & others East : Bankim Chandra Paul’s legal heirs (defendants) West : Ajoy Dutta & others Wherein homestead hut, pukur, pukur par. 4. The plaintiff filed one petition along with the suit under Order 39 Rules 1 and 2 read with Section 151 of the CPC for passing an interim mandatory injunction directing the defendants to remove the welding over the entry and the exit gate on the egress and ingress path of the plaintiff and to remove the erected brick wall on the said path by restoring the status as it was prior to 08.07.2016 and further to keep the said path open for free and clear entry and exit to his purchased homestead land. 5. In the suit being T.S. 15 of 2016 and the said petition being Civil Misc. Case No.36 of 2016 the plaintiff has stated that the plaintiff purchased the schedule-land from the legal heirs of Binoy Krishna Paul by the registered sale deed No.1-02293 dated 07.10.2015 on valuable consideration. The said land was the residential property of Binoy Krishna Paul, since deceased, and he used to reside in that house. In the southern side of the said landed property there exists a pathway which Binoy Krishna Paul and his family members used for their ingress and egress from their residential property. The plaintiff after his purchase used the said pathway till 08.07.2016 when the defendants closed the said pathway by erecting the brick wall and an iron gate. The plaintiff informed the police but no fruitful resolution can be brought about. Even the plaintiff tried to broker in an amicable settlement. On 27.01.2016, the plaintiff had requested the defendant to remove the said gate and open the pathway for his use, but that was not done. Even the respectable persons of that locality had interfered in the matter, but without any fruitful result. Even the plaintiff tried to broker in an amicable settlement. On 27.01.2016, the plaintiff had requested the defendant to remove the said gate and open the pathway for his use, but that was not done. Even the respectable persons of that locality had interfered in the matter, but without any fruitful result. The plaintiff has also asserted that a registered agreement was executed between Binoy Krishna Paul and Bankim Paul, father of the defendant, on 16.10.2001. It was agreed that Binoy Krishna Paul would be entitled to use that path. Both Binoy Krishna Paul and Bankim Paul are no more. The plaintiff has purchased the suit land from the legal heirs of Binoy Krishna Paul and the defendants being the legal heirs of Bankim Paul have raised the said obstruction. Having heard the parties, the Civil Judge, Senior Division, North Tripura, Dharmanagar by the order dated 27.09.2016 has directed the defendants to remove the welding over the entry and exit path including the erected brick wall, if any, on the disputed path and to restore the previous position of the said path till disposal of the suit. While passing the said order, the said Civil Judge has observed as under: “(6) It is also evident in the sale deed and the agreement dated 16.10.2001 that prior to purchase by te petitioner the suit land was possessed by original owner Late Binoy Krishna Paul who was the predecessor of the executants of the sale deed of the petitioner and he entered into one agreement with the predecessor of O.Ps namely Bankim Ch. Paul by which the entry and exit path to the land of Binoy Krishna Paul was made in the south direction of the suit land. This agreement was signed by both Bankim Paul and Binoy Krishna Paul in presence of witnesses namely Samarendra Sharma, Sukhamoy Dey and others. (7) This agreement clearly shows prima facie that prior to purchase of the suit land there was one path for the egress and ingress to the homestead land of Binoy Krishna Paul by his family members. This fact is also supported by the sale deed of petitioner wherein in the schedule it is specifically mentioned that in the south of his purchased land there is one egress and ingress path and Tarun Singha & others. This fact is also supported by the sale deed of petitioner wherein in the schedule it is specifically mentioned that in the south of his purchased land there is one egress and ingress path and Tarun Singha & others. Right to use the path for entry and exit to the land of a owner is an incidental right annexed to the right of ownership of the land. O.Ps claimed in their objection that the disputed path is lying in their adjacent homestead land and so, they can not allow the petitioner to use this path. This is the core point of dispute in the present case. Thus there is strong prima facie case in favour of the petitioner because he could prima facie establish his title on the suit land as well as existence of one ingress and egress path of his suit land prior to his purchase. (8) There is no doubt that if the entrance and exit gate located on the ingress and egress path of the suit land is obstructed or blocked by welding the existing gate, the inmates or the owner of the suit land would suffer a lot as his right to passage from his purchased land will be infringed or disturbed. In our case in hand, since one path was already existing prior to purchase by petitioner during the life time of the predecessor of the O.P.s, there is a prima-facie obligation on their part not to disturb such use of passage of egress and ingress path of the suit land even though there may be contesting dispute relating to the actual ownership of the disputed path that linked to the suit land in its southern direction. (9) In the above circumstances, in my view the balance of convenience and inconvenience in granting the temporary mandatory injunction lies in favour of the case of petitioner who has got prima facie right to use the passage that was existing at the time of his purchase of the suit land irrespective of the nature and status of his title on that path which may be determined in the original suit. Thus the O.Ps are under an obligation not to disturb the free movement of the petitioner from his suit land by using the suit path towards his egress and ingress into his suit land.” Based on these observations, the said temporary/interim mandatory injunction has been issued. Thus the O.Ps are under an obligation not to disturb the free movement of the petitioner from his suit land by using the suit path towards his egress and ingress into his suit land.” Based on these observations, the said temporary/interim mandatory injunction has been issued. 6. Being aggrieved, an appeal under Order 43 Rule (1)(r) of the CPC was preferred by the appellant herein being Misc. Appeal No.05 of 2016. The said appeal has been dismissed by the order dated 06.10.2016 by affirming the prima facie observation and order of temporary mandatory injunction passed by the trial court. While dismissing the appeal, the appellate court has observed thus: “On perusal of the documents in the L.C. Record I find that there is a registered agreement supports existence of a path allowing the predecessor of the respondent to use certain well described land as path way and that document was created after settlement of family dispute and in the said agreement by the side of the path there was provisions from construction of wall by the side of a drain. It appears that it is a permanent settlement of the parties of the agreement and not an agreement made only for the limited time of their life and the respondent while purchasing the suit land got the said path way as his entry and exit from his house and that pathway is the only ingress and egress. It also appears that after the settlement by agreement the predecessor of the appellants had got no interest in the path way.” 7. Mr. K.N. Bhattacharji, learned senior counsel appearing for the petitioners has submitted that the premises under which the judgment of affirmation has been passed is grossly contrary to the prima facie materials placed by the plaintiff. Mr. Bhattacharji, learned senior counsel has categorically stated that the path as referred in the suit is not part of the schedule-land. Mr. K.N. Bhattacharji, learned senior counsel appearing for the petitioners has submitted that the premises under which the judgment of affirmation has been passed is grossly contrary to the prima facie materials placed by the plaintiff. Mr. Bhattacharji, learned senior counsel has categorically stated that the path as referred in the suit is not part of the schedule-land. In this regard, he has referred to the schedule to show that the so called path, according to the plaintiff, exists in the southern boundary and entry for the southern boundary as made in the plaint is extracted hereunder: “Ingress and egress path and Tarun Singha & others” Thus the plaintiff has himself admitted that the said path is not part of the schedule-land and hence by granting temporary injunction in respect of the path which is not part of the schedule and has not been described in the plaint or in the petition, the trial court has committed serious illegality. 8. Mr. K.N. Bhattacharji, learned senior counsel has further submitted that the observation of the appellate court that for the settlement as recorded in the registered agreement the predecessor of the appellants had got no interest in the pathway is entirely beyond records and not supported by any prima facie material. Mr. Bhattacharji, learned senior counsel has submitted that the said agreement was an arrangement in personem between the two brothers without transferring the title of the land and but for exclusive use of one of the brothers and that right is not heritable or the right as created under the said agreement is not to be exercised by any other person. Thereafter Mr. Bhattacharji, learned senior counsel has strongly submitted that by granting the temporary mandatory injunction of this nature, the final relief has almost been given. Such order is beyond the jurisdiction of the court. Such relief can only be granted after adjudication of the suit. To support his contention, Mr. Bhattacharji, learned senior counsel has relied on a decision of the apex court in Metro Marins and Another vs. Bonus Watch Co. Such order is beyond the jurisdiction of the court. Such relief can only be granted after adjudication of the suit. To support his contention, Mr. Bhattacharji, learned senior counsel has relied on a decision of the apex court in Metro Marins and Another vs. Bonus Watch Co. Pvt. Ltd. And others reported in AIR 2005 SC 1444, where the apex court had occasion to observe on restating the law as laid down in Dorab Caswasji Warden vs. Coomi Sorab Warden and Others reported in (1990) 2 SCC 117 that an interim mandatory injunction can be granted in exceptional cases coming within the exceptions notice in Dorab Caswasji Warden vs. Coomi Sorab Warden and Others. Unless such exceptional case is made out, no interim mandatory injunction can be issued directing restitution of possession. 9. Mr. S. Deb, learned senior counsel appearing for the plaintiff-respondent has contended that under Article 227 of the Constitution of India, the scope of interference is highly circumscribed inasmuch as the court would only consider two aspects viz., (i) Whether the court which passed the order had the jurisdiction or the jurisdiction has been exercised within the limits of law and (ii) Whether by such exercise the failure of justice has been caused or not. 10. Mr. S. Deb, learned senior counsel appearing for the respondent has referred to the registered agreement where the following clauses are available: “Whereas, for a long time, there was dispute over the boundary, path and drain between both the parties. Presently, in the mediation of well wishers of both the parties and after discussion, the said dispute have been dissolved under the following terms and conditions so that in future no trouble may arise between the parties, hence, this deed of agreement has been executed between the parties. At present, the house where the First Party is there, and for entering into that house, there is a path, on the East of which a pucca drain is there. At present, the house where the First Party is there, and for entering into that house, there is a path, on the East of which a pucca drain is there. On the East of this drain, there will be pucca wall constructed by the First Party by his own expenditure which will be 44’x 4” straight from the gate of the house of the Second Party straight towards North and after that on the East of the said drain, 1’ will be deducted and thereafter, the First Party will constructed a pucca wall which will take a turn west wards 8’x9” and from there straight towards North 15’x8” pucca wall will run which will close the drain and the First Party will alone the owner of this wall. The First Party by his own expenditure will construct the said pucca wall and from the North boundary of this wall toward North 44’x 4” long pucca wall and toward that a drain will run which will be 1’ in breadth. The Second Party will along the owner of this drain and the said pucca wall and after that the pucca drain and path towards West and pucca wall on the West side of the path will belong to the First Party to which the Second Party will have no claim. On the East side of the said pucca wall, there is a drain in which the Second Party will alone by the owner and the First Party will have no claim of right or title. Each of the parties will not do any harm while doing any act on their respective lands. The path in entrance of the First Party measures 9’x 10” in breadth running from South end will run up to 44’x 4”, where the width of drain and path will be 7’x 11” and on the extreme end of North boundary, the width of the drain will be 5’x 10”. While doing the work of the wall by the First Party, the Second Party will not cause any harm. From today, the First Party will not have any claim on the land under possession or any other lands of the Second Party. To this effect, we have executed this deed of agreement from our own violation.” [Emphasis added] 11. While doing the work of the wall by the First Party, the Second Party will not cause any harm. From today, the First Party will not have any claim on the land under possession or any other lands of the Second Party. To this effect, we have executed this deed of agreement from our own violation.” [Emphasis added] 11. In the said agreement Binoy Krishna Paul has been referred as the first party whereas Bankim Chandra Paul has been referred as the second party. From the highlighted part of the extract of the said agreement the right of the plaintiff, if any, has to be inferred. Mr. Deb, learned senior counsel has submitted that this was a permanent settlement for ingress and egress from the land purchased by the plaintiff-respondent from the legal heirs of the first party, Binoy Krishna Paul. According to Mr. Deb, learned senior counsel that the said agreement is binding upon the legal heirs of Bankim Chandra Paul referred as the second party in the said registered agreement. Thus, he has contended that there is no infirmity in the orders passed by the courts below. 12. Having appreciated the submissions of the learned counsel for the petitioner and being alive of the jurisdictional limit under Article 227 of the Constitution of India, this court has found it apparently that that there is no mention of the pathway in the schedule which on the face of the records is for purpose of ingress and egress. One hand sketch map has however been placed with this petition to show that there exists one alternative path from the schedule-land for purpose of ingress and egress. But the said map has not been admitted by the plaintiff-respondent in the proceedings before the courts below. Mr. Deb, learned senior counsel appearing for the respondent has submitted that this cannot be relied for purpose of a prima facie case. 13. Relief of interlocutory mandatory injunction is 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 the full relief may be granted to compel of undoing the act or acts that that have been illegally done or the restoration of that status 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 face great injustice or irreparable harm. At the time of granting such relief the court shall measure the comparative in-convenience in the event of issuing the order of injunction. 14. In Dorab Caswasji Warden vs. Coomi Sorab Warden and Others reported in (1990) 2 SCC 117 , the apex court has observed as under: “The relief of interlocutory mandatory injunctions are thus 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...” 15. This court has also carefully read the sale deed by which the plaintiff-respondent purchased the suit land. There is no mention of the said pathway except while describing the southern boundary it has been described as the egress and ingress path. This is not a transfer of the said path, but it recognises the path. Whether that a description would create a right in favour of the plaintiff-respondent or not, is a matter of adjudication and at this stage this court would not make any observation inasmuch as that may affect the process of adjudication of the suit. Even no reliable prima facie material as to existence of the alternative path for ingress and egress from the suit land is available in the records of the trial court. 16. Having regard to all these aspects, this court does not find that the courts below have exercised the jurisdiction illegally or beyond their authority. Even no reliable prima facie material as to existence of the alternative path for ingress and egress from the suit land is available in the records of the trial court. 16. Having regard to all these aspects, this court does not find that the courts below have exercised the jurisdiction illegally or beyond their authority. However, this court is of the opinion that the temporary mandatory injunction as issued pending disposal of the suit is required to be modified. Without removing the brick wall or the gate that has been fixed, it is directed by this modified temporary mandatory injunction that the defendants shall keep the gate open for movement of the plaintiff or his men over the path as described on the southern boundary of the suit land. In terms thereof, this petition is disposed of. 17. Before parting with the records, the trial court is directed to expedite the adjudicatory process of the suit so that the suit can be disposed within 6(six) months after receipt of this copy of this order. There shall be no order as to costs.