KRISHNA CHANDRA BANIK Vs. KRISHNA CHANDRA CHUCKERBUTTY

JUDGEMENT

(1.) We are of opinion that the judgment of the lower appellate Court in this case must be reversed, and the case remanded to that Court for re-trial. The facts are these:--The plaintiff sued for opening a road by the removal of a cowshed built thereon by the defendant. The plaintiff alleged that he and the inmates of his family had a right of user over the lands in suit. The defendant's case was that over the land in suit the plaintiff never had any right; that the lands in suit were not of the character stated by the plaintiff but were partly rent-paying and partly homestead lands, &c., of defendants. Upon these pleadings the first Court put in issue "Whether the path in suit had been in use from a long time through the lands in suit; and whether the defendants have closed the same; and whether the path can be opened by destroying the house raised by the defendant." The first Court found as a fact upon the evidence that the path was "formerly" used by the inmates of the plaintiff's house, and that the plaintiff's case was true, and the first Court accordingly decreed that the plaintiff had a right of user over the lands in suit.

(2.) On appeal to the lower appellate Court that Court put in issue "whether the path in suit was 'formerly' used by the plaintiff, respondent, and whether the appellant by erecting a house upon the path has closed and obstructed it." The lower appellate Court proceeded upon the Ameen's report as showing "that the plaintiff had a right to pass towards the south through the way in suit, which was a short cut," and stating that it considered the decision of the Munsiff correct, affirmed it.

(3.) From this decision the defendant appeals specially. He abandons his first ground in the petition of special appeal and does not press the second or the fourth ground. On the third ground however he urges that the lower appellate Court has not found whether the plaintiff had such uninterrupted user as would entitle him to a decree, and that the Ameen's report does not prove a right of user to be with plaintiff.