SAMBHUNATH ROUT Vs. MALATI DHADA

JUDGEMENT

(1.) DEFENDANT No. 1 is the petitioner before this Court in this revision challenging the order passed by the learned Civil Judge (Jr. Divn.), Anandapur directing him to remove the obstruction from the path way and confirmed in appeal by the learned District Judge, Keonjhar, on an application under Order 39, Rules 1 and 2 C.P.C.

(2.) THE plaintiffs opp. parties have filed the suit for a declaration that they and the villagers have their easementary right ever the path way running on the scheduled lands and they have been using the said path way to the knowledge of the defendant No. 1 petitioner as a 'Rasta' to go to the river Baitarani for taking bath, getting drinking water and for other purposes from the time immemorial even though the said land has been recorded in the name of the petitioner and a prayer has also been made in the suit for a direction to the defendant No. 1 petitioner to remove the obstruction put by him on the said passage and for permanent injunction restraining him from obstructing the said passage. On an application filed by the opp. parties under Order 39, Rules 1 and 2 C.P.C. learned Civil Judge (Jr. Divn.) considering the case of both the parties, allowed the prayer and directed the petitioner to remove the obstruction from the passage to facilitate the opp. parties to use the said passage and not to interfere with their easementary right pending disposal of the suit. The petitioner challenged the said order before the learned District Judge, Keonjhar and the said appeal having been dismissed, the present revision has been filed.

(3.) LEARNED Counsel Sri Misra appearing on behalf of the petitioner submitted that in the present case to establish an easementary right, the plaintiffs - opp. parties have to prove a strong case for trial which should be of a higher standard than a prima facie case i.e. normally required for a prohibitory injunction. According to Sri Misra, since the opp. parties having not been able to prove a prima facie case even, orders passed by both the courts below are liable to be set aside. Sri S. S. Das, learned counsel for the opp. parties referring to the documents filed before the trial court submitted that not only the plaintiffs opp. parties have proved a prima facie case but also the documents show a strong case for trial and since orders have been passed taking into consideration these documents, this Court in exercise of the revisional jurisdiction should not interfere with the orders.