HAKIM MAHMUD HASAN Vs. LAMBA PRASAD

JUDGEMENT

(1.) This is an appeal on behalf of the defendants arising out of a suit brought by seven Hindus for a declaration that the Hindu residents of Nanauta have a right to take out their processions with all paraphernalia along a route over the defendants land as also to pass that way and take out their carts by that way and for the removal of certain doors which have been fixed by the defendants obstructing this right and for a perpetual, injunction restraining them from offering any such obstruction in future. It is denied that there was any public way along this path and the defendants also took other technical pleas as to the maintainability of the suit. Both the Courts below have recorded a finding that there was a public right of way across this land. The trial Court went into the question at considerable length and discussed all the important oral and documentary pieces of evidence. The lower appellate Court has not discussed the documentary evidence in the same manner, but has remarked: The learned Munsif has discussed at very commendable length the entire documentary evidence on the record and I consider it a mere repetition to discuss it here again. I need only add that I agree with the lower Court that the documentary evidence overwhelmingly proves that the disputed way is a public way.

(2.) He has referred to some evidence, but not to all the pieces of the documentary evidence. In my opinion the finding must be taken as a finding of fact and is not viciated by the mere circumstance that certain documentary evidence has not been referred to in the judgment. In particular, the lower appellate Court has not referred to a written compromise entered into by certain leading Hindus and certain leading Mohamedans, dated 14 October 1927. The next point urged in order to get round the finding of fact is that the lower appellate Court has made certain assumptions in the opening portion of the judgment and his finding is based on these assumptions. No doubt the lower appellate Court has begun its judgment in a very unhappy manner by saying them; there is a public way, that the public of Nanauta used that way and took their carts, etc., on that way and that the Hindu residents also took their religious processions, etc., by that way. But I am satisfied that this way of stating the facts was due to carelessness of the learned Judge who apparently meant that that wan the plaintiffs case and that these were the allegations because he went on to refer to the defendants case and then to the findings of the trial Court and then stated the points which were for determination. In spite of the mistaken way of beginning the judgment, I do not think that there was really any such confusion in the mind of the lower appellate Court. I, must therefore take it that the finding of fact is binding upon me and must be accepted in second appeal.

(3.) The next point urged is that the written compromise which was by way of an amicable settlement of the dispute between the two communities estops the plaintiffs from maintaining the present suit. It may be very unfortunate that a compromise arrived at some years ago which might have been acted upon between the parties and which might have been considered to be very satisfactory and fair, is not now accepted by one community. But the question is whether the compromise can legally bind that community. The first serious difficulty in the way of the defendants is that there was no express plea in the written statement that this compromise had the effect of estoppel. There was a reference in para. 9 to what took place in 1927, but there was no plea that the written compromise was binding on the present plaintiffs. Accordingly no specific issue was framed on this question by the trial Court, though the trial Court, no doubt, referred to this compromise in its judgment. But it did not go into the question of the binding nature of the com-promise because it felt that the point not having been raised in the written statement, the plaintiffs had no opportunity to give evidence that the Hindu residents of Nanauta had not signed the compromise representing all the Hindus of Nanauta. In the grounds of appeal before the lower appellate Court the point was not expressly taken that the compromise operated as an estoppel. Accordingly the lower appellate Court has not discussed the question and it does not appear that the point was expressly pressed before it because it is not contained in the abbreviated grounds mentioned in the judgment. In these circumstances I do not thirik that it would be proper to allow this point to be raised in second appeal in the form in which it is taken.