1. This is an appeal under Rule 1 of Order XLIII, Civil P. C. by the plaintiff in O. S. 249 of 1969 on the file of the Principal Munsiff, at Shimoga. He is aggrieved by an order of remand made by the Additional Civil Judge, Shimoga, in R. A. 188 of 1972.
2. The suit as laid by the appellant was for an injunction restraining the defendant from making use of his open space in order to effect repairs to his own building. The suit was resisted by the respondent on the ground that he was entitled to such a right by prescription. The trial court framed two issues, and they are:
(1) Whether the plaintiff proves that he was in exclusive possession of the plaint schedule land at the time of suit?
(2) Whether the plaintiff is entitled to the permanent injunction sought against the defendant?
3. The plea of the defendant that ha had a prescriptive right as contended, has been exhaustively considered by the learned Munsiff in the context of issue No. 2. Indeed, parties have led evidence on a proper understanding of their respective cases. The suit was decreed by the trial court. On appeal, the learned Civil Judge, after making some general observations as to the cases of the parties, found fault with the trial court for not having framed an issue bearing on the plea of the defendant that he had acquired an easementary right to make use of the open space of the plaintiff in respect of which the injunction had been granted.
4. I have been taken through the judgment of the trial court, and it is seen from the discussion relevant to issue No. 2 that the entire evidence bearing on the plea of the defendant relative to the easementary right had been exhaustively considered. In such a situation, it seems to me that the proper course for the first appellate court to have followed was the one prescribed under Rule 24 of Order XLI, Civil P. C, instead of setting aside the entire judgment and decree and remanding the case for fresh trial on the basis of an alleged omission to frame an issue. That such is the proper course, is indicated by an enunciation of the Supreme Court in Kameswaramma v. Subba Rao, : 2SCR208 . The elucidation reads thus :
'Where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.'
Viewed in the light of the above enunciation, the learned Civil Judge must be held to have not properly exercised the jurisdiction vested in him as an appellate court. The judgment, therefore, is clearly unsustainable.
5. For the foregoing reasons, this appeal succeeds and is accordingly allowed. The judgment of the learned Civil Judge is set aside and the matter stands remitted to that court for the disposal of the appeal on merits in the light of the observations made herein. No costs.
6. Appeal allowed.