RAJGRIHI RAI Vs. RAM REKHA RAI

JUDGEMENT

(1.) This second appeal at the instance of the defendants arises out of a suit filed by the plaintiff-respondent No. 1, claiming public way and customary right of easement and prescription and also for removal of the encroachment made by the defendants and they be restrained from interfering with the plaintiff and others in the use of that public way. The suit of the plaintiff having succeeded from both the Courts below, the present appeal has been filed by the defendants.

(2.) At the time of admission of the present appeal, the sole question framed was whether the suit is maintainable in view of Section 19 of the Bihar Public Land Encroachment Act, 1956 (hereinafter referred to as the 'Act'). No other question was formulated.

(3.) Mr. Mazumdar, learned senior counsel appearing an behalf of the appellants, contended that he will not press the point formulated in this appeal in view of the amendment of Section 19 of the Act, which has been repealed by 1976 Ordinance. He, however, submitted that the most important question in this case, which has not been formulated, is whether a right of passage could at all be claimed by the plaintiff, otherwise than on village custom or by exercise of the said right as a matter of course for more than twenty years. According to the learned counsel, the Courts below have recorded a finding that at present there is a Gall which in being used by the plaintiff and the defendants and that there has been an encroachment by defendants over the same, and, therefore, the plaintiff's suit should be decreed. This finding is mainly based on the pleader commissioner's report who had gone on the spot and had found the existence of a Gali. Mr. Mazumdar, therefore, submits that the Courts below have failed to record any finding on this vital question, on the basis of which only such a suit can be decreed. Learned counsel appearing for the plaintiff-respondent, on the other hand, submitted that this Court having not framed any other question for decision, it should refrain from entertaining the argument now being urged at the time of hearing of this appeal in view of the provision of Section 100 of the Code of Civil Procedure, as it now stands. My attention has also been drawn to a Division Bench decision of this Court in the case of Zafar Alam v. Nizam and Ors. reported in 1986 PLJR 333, which slates that the proviso to Section 100(5) of the Code of Civil Procedure carves, out an exception to the main provision and the appellant can only be allowed to argue on the substantial question not formulated in exceptional circumstances,