CHERUKURU MUSALY Vs. CHERUKURU LAKSHUMAYYA

JUDGEMENT

(1.) The principal question of law now raised was not raised in the Courts below. It is now contended that the case is governed by Art. 32 and not by Art. 120 of the Schedule to the Limitation Act relying on Soman Gope V/s. Raghubir Ojha (1896) I.L.R. 24 C 160, and Sharoop Dass Mondal V/s. Joggeshsur Roy Chowduri (1899) I.L.R. 26 C. 564. These cases, however, are clearly distinguishable. As, in the present case, the parties are co-owners of the laud in question and not landlords, we think Art. 120 of the Limitation Act applies and not Art. 32. It is next argued that a mandatory injunction should not have been granted.

(2.) Here, however, the plaintiffs objected and the defendants first commenced to obstruct the joint way and have continually been objecting since. Moreover, it is clear that unless the obstructions are removed the way which is common not only to the plaintiffs but to others cannot be used for the purposes for which it was set apart to the great injury and damage of all the co-owners except the defendants.

(3.) We think, therefore, that the decree is right, and we dismiss the appeal with costs.