P L D 1961 Dacca 65 (PLP)

This appeal is directed against the judgment and decree, dated 27‑3‑58 passed by Mr. M. E. Ali, Subordinate Judge, Jessore, in Title Appeal No. 47 of 1957, reversing those of Mr. A. A. Joardar, Munsif, 3rd, Court, Narail, dated 19‑3‑57, in Title Suit No. 43 of 1954, and sending the case back on remand to the trial Court for a fresh trial in the light of the observations made by the Subordinate Judge.

2. The suit out of which this appeal arises, was one for a declaration that the plaintiffs have a right of passage over the place marked A. B. C. and D. in the sketch map appended to the plaint, which is situated on the eastern side of plots Nos. 59 and 60 of C. S, Khatian No. 39, and for perpetual injunction against the defendants or, in the alternative, for partition if it is found that the plaintiffs have no right of passage over the land indicated above.

3. The plaintiffs' case, as set out in the light is as follows :‑ The suit land appellants to jama of Rs. 33‑9‑6 which originally belonged to the predecessors of the predecessors of the plaintiffs defendants and pro forma defendants. The land described in schedule Ka to the plaint is the homestead of the plaintiffs and defendants from the time of their predecessors. 2 annas share of the aforesaid jama belonged to the pro forma defendant No. 27 from the time of his predecessor who leased out the same to the plaintiffs Malik Barati patta at a jama of Rs. 7‑12‑0 and thus the plaintiffs got 2 annas of the jama in suit and further got 2 arenas by inheritance from Tarini Mandal, their total share being 4 annas. Defendants Nos. 1‑9 have got 2 annas, defendants Nos. 10‑11‑2 arenas, defendants Nos. 13‑15 2 annas, defendant No. 16 has got 2 annas, defendants Nos. 17‑20 have got 1 anna 6 gds. 2 kara and 2 kranti share, defendant No. 21 has got 1 anna 6 gds. 2 kara 2 kranti and defendants Nos. 22‑26 have got 1 anna 6 gds. 2 kara and 2 kranti share. The plaintiffs and the defendants have been living in ka schedule lands from the time of their predecessors but there has never been any partition amongst them by metes and bounds. For convenience of posses sion defendants Nos.1‑16 have been in exclusive possession of the land of C. S. plot No, 58 appertaining to their 8 annas share, defendants Nos. 17‑203 of the land of C. S. plot No. 56 in their 1 anna 6 gds. 2 kara 2 kranti share, defendants Nos. 21‑‑‑26, of the land of C. S. plot No. 57 in their 2 arenas 13 gds. 1 kara 1 kranti share and the plaintiffs have been in exclu sive possession of C. S. Plot No.

55. The plaintiffs and defendants have also got their separate homesteads in the C. S. plots referred to above. Defendants Nos. 1‑16, it is alleged, have been possessing C. S. plots Nos. 59 and 60 as appertaining to their home stead. The plaintiffs also possessed C. S. plots Nos. 54 and 61 as appertaining to their homestead; and defendants Nos. 21‑26 possessed C. S. plots Nos. 9 and 11 as appertaining to their homestead. To the North of the land of schedule ka runs a village Raiat which has been recorded in C. S. plot No.

10. The homestead and palan land of defendants Nos. 1‑16 are to the contiguous south of this Raiat ; and the plaintiff's' homestead is to the contiguous south of the homestead of defendants Nos. 1‑10 C. S. plot No. 54, which is in possession of the plaintiffs, is a big pit and the plaintiffs have extended their homestead of dag No. 55 over this plot by filling it up with earth. Likewise defendants Nos. 1‑16 have extended their homestead upon dags Nos. 59 and

60. Thus while the plaintiffs and defendants were in separate possession of the lands of schedule Ka, it was agreed by all the co‑sharers that a 5 cubit wide pathway be kept open for going to the aforesaid raiat in dag No. 10 from the plaintiffs' homestead by the eastern boundary of plots Nos. 59 and 60 and by the southern and eastern boundaries of plot No. 61, and it was so kept open. The plaintiffs have been exercising their right of passage over the disputed pathway for more than 20 years and it is the only pathway through which they go from their house to different places. Defendants Nos. 1‑16 have been trying to block the said pathway by throwing earth on it and they are also trying to include this pathway in their homestead by shifting their huts thereon. So, the plaintiffs are entitled to get a declaration of their right of way over the disputed pathway. It is further alleged that if the defendants deny the plaintiffs' right of way over the disputed land in the ka schedule land; then the plaintiffs pray that there should be a partition of the said land by metes and bounds after realising the necessary court‑fees from them in case their prayer for declaration of their right of passage over the pathway fails. It is further alleged that the cause of action of this suit arose on the 15th of Balsakh, 1360 B. S., corresponding to the 28th of April 1954, when the defendants attempted to raise the level of the disputed pathway by throwing earth thereon.

3. Defendants Nos. 1 and 10 have filed a joint written statement denying the allegations made in the plaint and challeng ing the maintainability of the suit on various grounds including non joinder of necessary parties and limitation. The said defendants also contended that the homestead lands, and other lands were partitioned amongst the co‑sharers about 100 years ago ; but the halat in dag No. 10 remained under water at least for 10 months in a year and it used as a, boat passage at that time ; that the pit dag No. 54 is still a pit and the plaintiffs and defendants Nos. 17‑26 and 27 had raised earth from dag Nos 54 ; that the land of dag No. 59 is in possession of defendants Nos. 13‑15 and that the dag No. 60 is in possession of defendants Nos. 1‑9 ; and that the defendants Nos. 10‑12 have no interest in these dags. The defence also categorically denied the existence of any pathway in dag No. 61, which is lower by 4 cubits from the plaintiffs' homestead, and the contention of the contesting defendants is that it was the plaintiffs who threw earth on it in order to show that it is a pathway.

4. Defendants Nos. 21 and 23 filed one separate written statement ; and defendants Nos. 2 and 3 also filed another separate written statement. They, however, supported the case of the plaintiffs. The learned Munsif framed the following issues :‑ "(1) Have the plaintiffs any cause of action ? (2) Is the suit barred by limitation ? (3) Is the suit bad for defect of parties ? (4) Have the plaintiffs got any right, title and possession of the suit land ? If so, are they entitled to get a decree for con firmation of their right of way ? (6) To what relief, if any, are the plaintiffs entitled ?" On a consideration of the evidence on record, the learned Munsif dismissed the suit holding that the suit was bad for defect of parties ; that the suit was barred by limitation ; and that the plaintiffs had no right, title and possession in the disputed land as claimed and as such, they could not get any decla ration for confirmation of their right of way over the disputed land.

5. On appeal by the plaintiffs, the learned Subordinate Judge reversed the judgment and decree of the learned Munsif and remanded the case to the trial Court for fresh trial after framing issues on the alternative prayer of the plaintiffs for partition of the disputed land and after giving them an opportunity to have a local investigation made in the case and to amend the plaint etc. Hence this appeal by the defendants Nos. 1 and 10.

6. Mr. S. C. Dutta, the learned Advocate who has appeared on behalf of the defendant‑appellants, has contended that the learned Subordinate Judge committed an error in law in remanding the suit for fresh trial on all the points raised by the parties inasmuch as the alternative prayer for partition of the disputed land was not pressed by the plaintiffs at the hearing of the suit and the plaintiffs were guilty of laches and negligence in not applying for local investigation. He has further contended that the remand order is bad in law inasmuch as the learned Subordinate Judge did not decide the appeal on merits in regard to the plaintiffs' prayer for declaration of their right of way over the disputed land. Mr. B. C. Das appearing for the plaintiff -respondents has, however, contended that the learned Subordinate Judge was perfectly justified, in the facts and circumstances of the case and for the ends of justice, to remand the suit for a fresh trial.

7. It appears that this was a suit for declaration of plaintiffs' right of way over the lands marked A, B, C and D in the sketch map appended to the plaint and, in the alternative, for partition of the ka schedule land and for having this pathway allotted to the plaintiffs' share. From the issues framed by the learned Munsif' it appears that he did not frame any issue on the alternative prayer for the plaintiffs for partition of the ka schedule land by metes and bounds and as such it seems from the judgment of the trial Court that the learned Munsif did not take any evidence on that alternative prayer and did not decide that point. He dismissed the suit after deciding the question of limitation and non‑joinder of parties with regard to the plaintiffs' prayer for declaration of their right of way and holding that the plaintiffs had no right of way over the disputed land.

8. It would, however, appear from order No. 42, dated 11‑3‑57, that after the plaintiffs' case was closed and before the defendants adduced evidence, the plaintiffs filed a petition praying for making partition of the ka schedule land by metes and bounds, if their prayer for declaration of their right of way over the disputed land failed and they paid ad valorem court‑fees of Rs.

20. The learned Munsif by his order No. 43, dated 12‑3‑57. observed as follows :‑ "Heard pleaders of both the sides over the petition filed by plaintiffs for conversion of the suit into a suit for partition provided plaintiffs' prayer for prescriptive right of easement failed. The present suit is in respect of a pathway. 7 he plaintiffs prayed for a declaration that they have acquired prescriptive right of easement to the disputed pathway. The plaintiffs have an alternative prayer for partition no doubt. But till the close of their case they did not care to file court- fees upon their relief for partition. Moreover the suit is not valued for the purpose of partition. When the case of the plaintiffs was closed they filed court‑fees of Rs. 20 and laid much stress upon their prayer for partition with the saying that they have already advanced a prayer of line nature in their plaint, while the plaintiffs' witnesses were examined the pleader for the plaintiffs did not at all give any hint that they would press for their prayer for partition and consequently the defendants were not in a position to cross‑examine the plaintiffs' witnesses on point of partition inasmuch as they were not allowed to cross -examine plaintiffs' witnesses on that point because the prayer for partition was not then in existence legally. If this prayer of the plaintiffs is entertained the suit will practically face de novo trial. The defendants cannot be shut out from further cross‑examination of plaintiffs' witnesses and from filing further written statement. Admittedly the respective co‑sharers including the plaintiffs are in possession of the land of their respective shares from the time of their great grand‑father by amicable partition. Evidently this amicable partition is in existence for over 100 years. From equitable stand point of view at this stage the prayer for partition by metes and bounds cannot be entertained. The learned pleader for the plaintiffs referred to ruling reported in 4 C L J page 437 but I am of the opinion that this ruling has no bearing upon the present case. More over, the plaintiffs have not led any evidence on point of partition nor there is any prayer in anyone's deposition. Hence the plaintiffs' prayer for partition cannot be enter tained at this stage. Moreover plaintiffs' further suit for parti tion by metes and bounds will not be barred under the principles of limitation nor the subject‑matter will operate as res judicata between the parties. Hence plaintiffs' prayer for partition by accepting Court‑fees filed is rejected. Let the suit do proceed in usual course."

9. The learned Subordinate Judge, it appears, took into consideration the above observations of the learned Munsif as also the fact that there was already an alternative prayer for partition in the plaint and that the plaintiffs were guilty of laches and negligence in applying for local investigation. After con sidering all these facts, he held that the learned Munsif on the pleadings of the parties ought to have framed an issue on plaintiffs' alternative prayer for partition of the suit land and ought to have asked tie plaintiffs to value the suit on such prayer for the purpose of court‑fees as well as for jurisdiction Mr. Dutta has urged that the alternative prayer for partition was not at all pressed by the plaintiffs and, as such, issue on that was not framed, that the usual practice is that the lawyers of the parties suggest issues on the points which they would like to press and that no issue on the alternative prayer for partition having been suggested, it must be taken that the said prayer was not pressed and, therefore, the Court was not required to frame an issue on this point. I am, however, unable to accept this contention of Mr. Dutta. It is true that the usual practice in subordinate Courts is that the lawyers of the respective parties submit draft issues, but the Court is not bound to accept those draft issues, Order XIV, rule 1, sub‑rule (5) of the Code of Civil Procedure lays down that "At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend." It is, there fore, clear that it is the duty of the Court to frame issues on the pleadings of the parties and after examination of the parties, if necessary. There is nothing in the order‑sheet of the record to show that the plaintiffs did not press their alternative prayer for partition. On the other hand, Order XLII referred to above, clearly shows that the plaintiffs pressed the said prayer when their evidence was closed and before the defendants adduced evidence. They even put in the Court‑fees of Rs.

20. In view of the facts and circumstances of the case, tire learned Munsif ought to have entertained the plaintiffs' prayer which was made on the llth of March, 1957 as contained in the Order XLII. As this prayer was not a new one, it cannot be said by any stretch of imagination that if same was allowed, it would alter the nature of the suit. There was an alternative prayer in the plaint for partition of the Ka schedule land and when the said prayer was repeated during the hearing of the suit, the learned Munsif ought to have entertained it and directed the plaintiffs to value the suit for the purpose of partition and for determining the pecuniary jurisdiction. In my opinion the learned Subordi nate Judge was perfectly justified in remanding the case for fresh trial after framing an issue on the question of partition and after amending the plaint as directed by him. The conten tion of Mr. Dutta that the learned Judge acted illegally in not deciding the appeal on merits on the question of the plaintiffs' claim of right of way, does not appeal to me at all. In a case in which a right of way is claimed over certain land and defendants deny the existence of any such pathway, it is necessary that the location of the alleged pathway should be ascertained by a local investigation. As this had not been done, there, could not be any effective decision on the plaintiffs' alleged prayer C of right of way over the disputed land and, further, as the case was remanded to the trial Court for fresh hearing after framing of certain issue, it was not at all necessary for the learned Subordinate Judge t0 decide the appeal on merits so far as the question of right of way was concerned. So, I am not prepared to hold that the learned Subordinate Judge has committed any error in law in remanding the case to the trial Court for fresh trial. In the result, this appeal is dismissed with costs and the judgment and decree of the Court of appeal below are affirmed. A. H. Appeal dismissed.