JUDGMENT
S.B. Sanyal, J.
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he will not press the point formulated in this appeal in view of the amendment of Section 19 of the Act, which has been repealed by 1976 Ordinance.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,
4. Before I consider the submissions of Mr. Mazumdar now raised, I must record reasons why I permitted him to raise the point not formulated and the exceptional circumstance therefor. On 12-2-1981, this second appeal was admitted and the question framed by this Court was “whether the suit could be held to be maintainable in view of Section 19 of the Bihar Public Land Encroachment Act, 1956 ? I will show on the basis of the arguments of the learned counsel that on that very day this question of law formulated did not arise at all. The suit was instituted in the year 1968 when there was no bar to institute a suit of this kind for removal of encroachment. The bar of Section 19 of the Act was created under Act 3 of 1972, when the suit was pending. By the amendment of 1975, Section 19 was repealed. Consequently, the position as obtained when the suit was filed was restored. It will, therefore, be observed that there was no question of law, much less substantial question of law, formulated by this Court at the time of admission of this appeal. This is one of the circumstances which has persuaded me to allow Mr. Mazumdar to raise his other points of law not formulated by this Court.
5. It is now well settled that in a case of night of public way on a private land or public land, one has to prove dedication or grant. The other way being right must be claimed by village custom or even by way of right and that the said right has been exercised for more than twenty years. See the decision in the case of Mistry Ali Mohammad Abdullah and Ors. v. Khawaja Abdul Qadus and Ors. AIR 1976 Jammu & Kashmir 23 and Lambodar Panda v. Ramesh Chandra . I have been taken through the appellate Court judgment. The appellate Count has nowhere recorded a finding that there was a village custom for more than twenty years pursuant to which the villagers were using the strip of land for egress and ingress to their respective houses to take them to the District Board road. It has been found that the path is not shown either in the cadastral survey map or in the revisional survey map nor there is any mention of this right in the registered document of 1928 (Ext. BO. Prom paragraph 24 of the trial Court judgment, I find that the plaintiff has failed to prove his alternative claim of easement by saying that the right of easement can be claimed on the land of others by continuous use of the same. The point urged before me by Mr. Mazumdar has, however, been taken in the grounds of appeal, which would be apparent from ground No. XI of the memorandum of the second appeal, where it has been stated that the onus on the plaintiff to adduce evidence of user or public passage from the time immemorial, and in this, case no such evidence was discussed in any of the judgment of both the Courts below and, therefore, the findings of public passage on the private land of defendants Ist party is vitiated in law and fit to be set aside. As I have stated earlier, there is no finding of either of the Courts below that the disputed land is a public land, nor there is any finding that this is a private land. The only finding is that noticed by the pleader commissioner. This is not enough to establish a right of passage.
6. In the light of the discussions made above, I allow the appeal, set aside the judgment and decree of the lower appellate Court and remand the appeal to the Court below to discuss the evidence on the point in the light of the two decisions referred to above and come to its own conclusion as to whether the strip of land in suit is a public land or a private land and that there is village custom existing from time immemorial, using the passage as a public passage by all the villagers, and if it is found to be a private land, then there has been a dedication or a grant or a right of easement has accrued to the villagers for using the said passage for more than twenty years. There will be no order as to costs.