1. The Judge of the lower appellate Court has passed a most careless decree. The suit was in the alternative for declaratory decree as regards so much of present plots Nos. 185 and 202 as may correspond with old plots Nos.286 and 288, and, in the alternative, for possession. The lower appellate Court casually passed a decree in favour of the plaintiff's claim but made no mention whether a declaratory decree was granted or one for possession. Further, at the very commencement of his judgment he wrote that no portion of old plot No. 286 was included in the present plots Nos. 185 and 202, and yet this matter was not cleared up in the lower appellate Court's decree. Matters are left in such a way as to lead to further litigation. As usually happens, the plaintiff litigant on paying the court-fee believed that after that it was the business of the Court to find out what his rights were. The prayer was entirely indefinite and the trial Court ought to have returned the plaint for a specific map and a specific prayer as to what exact area of the plots of the present notation the plaintiffs desired a declaration about or possession. In the decree of the lower appellate Court the matter is left as vague as it was in the unsatisfactory prayer at the end of the plaint. It is much to be desired that civil Courts would pay attention to the decree which they prepare in order to avoid further litigation and not consider that their task is completed once they have played about with the contention of the parties and conflicting rulings.
2. Just like the prayer the plaint is also vague and the plaintiffs hedge between a claim outright as owners and a claim by way of easement to use the land as bandh and bhita land. They have purposely done this because the land is no longer used as bandh or bhita and they did not desire to disclose the true facts of easement for fear that the easement not having been used may not be granted to them. A plaintiff who is purposely vague in hopes of his case being misunderstood by the Court in his favour ought to be carefully examined and tied down to definite pleadings. It is to be regretted that this was not done in this case.
3. The trial Court dismissed the suit. The lower appellate Court has held that the land which that Court has not defined nor particularised was used for the purposes of bandh, that is to throw mud dug out of the plaintiff's tank in plot No. 186. It is obvious from the evidence that since 1881 at least this land has not served the purpose of a bandh and that the plaintiffs have been too lazy to deepen the tank and throw earth out. The plaintiffs themselves had realized this and had applied in 1926 to the zamindar for lease of this very land. The defendants are lessees from the zamindar and the usual trick was played of barring the jurisdiction of the revenue Court by purposely omitting the zamindar from the array of parties as defendants. Such evasion would not be possible now, but this suit was filed prior to the passing of the Tenancy Act, 1926.
4. The lower appellate Court itself arrived at the true finding that the land was to be used as bandh and for that purpose there was a license of the zamindar to the plaintiffs to make use of the land. When, however, that Court started inquiring as to the use of the land and possession within the last twelve years of the suit it was easily satisfied by an allegation of the plaintiffs that they had scraped grass over this land. To hold possession as-resting with the plaintiffs on such a ground is childish. Wherever there is any grass on parti land a villager would sit down to scrape it. Such scraping of grass does not indicate any possession particularly where the land as held by the lower appellate Court itself was given for a special purpose of throwing up earth from the tank. The land not having been used as a bandh since 1881 in which year in the settlement the land is entered as parti qadimi, the plaintiffs have no right to possession of the land. The lower appellate Court was entirely wrong. I set aside his decree, restore the decree of the trial Court and dismiss the plaintiffs' suit with costs of all the Courts.