C.M. Lodha, J.
1. This is a plaintiff's second appeal arising out of a suit for injunction to restrain the defendants from constructing a temple or any other building on the land in dispute measuring 22' 6' (east-west) x 18' 6' (north-south) shown in red pencil dotted lines in the plan Ex. 4. The plaintiff's 'Nohara' is towards the west of this plot of land a distance of about 10'. The plaintiff's case is that the strip of land 10' in width lying between the constructed portion of his Nohara' and the piece of land in question is a part of his property and he had left out the same while constructing the 'Nohara'. His allegation is that the plot in dispute is a part of the public street over which he has a right of free access and is entitled to get the defendants restrained from raising any construction over it. The defendants who have been sued in a representative capacity pleaded inter-alia that the land in question was granted to the villagers some time in the year 1949 A.D. by the then Jagirdar of the village for the purpose of constructing a temple, and that foundations for the temple had been then led but due to certain difficulties the construction of the temple could not be completed They also pleaded that the plot in question is not a part of the public street and the plaintiff has no right to pass over it.
2. After recording the evidence produced by the parties the learned Munsiff' Nimbahera dismissed the plaintiff's suit. The appeal filed by the plaintiff was also dismissed by the learned Civil Judge, Partabgarh. Hence this second appeal.
3. The main points which arise in the case and on which depends the result of the suit had neither been made the subject matter of any issue, nor any findings have been given thereon. The first point which arises for decision is whether the defendants who represent the villagers of the village Dhanet where the land in question is situated were granted by the Jodhsingh, the then Jagirdar of village Dhanet for the purpose of raising a village temple, & thereby the defendants had acquired a title to the land in dispute? The next question is that in case the defendants failed to prove their title to the land in dispute by grant from the Jagirdar can they be said to have acquired any right to it by virtue of the foundations of the temple having been laid in the land in question, some time in the year 1949 A.D.? Another question of considerable importance in the case is whether the plot of land in question is a part of the public street and the plaintiff is entitled to restrain the defendants from j raising any construction over it
4. It does appear to me from the evidence produced by the parties that the foundations of the temple were undoubtedly laid more than 20 years before the filing of the suit. What is the effect of the same, is, however, a point on which a finding is called for.
5. After having heard learned Counsel for the parties and after having perused the relevant record, I have come to the conclusion that the judgments and decrees of the court below cannot be sustained and the case calls for a fresh decision after trial on certain relevant issues which have not been framed. I, therefore, frame the following three additional issues:
(1) Was the land in question granted to the villagers of the village Dhanet by Thakur Jodh Singh for the purpose of constructing a village temple and consequently the defendants have acquired title to it?
(2) Have the defendants as acquired a title to the land in dispute by adverse possession by laying foundations for the temple in the land more than 20 years before the filing of the suit?
(3) Is the land in dispute a part of public street and the plaintiff is entitled to restrain the defendants from raising any construction over it?
6. The result is that the judgments and decrees of the courts below are set aside and the case is sent Back to the trial court for recording evidence of the parties on the additional three issues mentioned above. After recording additional evidence the trial court will give its decision on all the issues afresh and dispose of the case in light of its findings on all the issues. In the circumstances, the parties are left to bear their own costs so far, Costs hereafter will be in the discretion of the court below.
7. Both the parties agree that till the suit is disposed of by the trial court, both of them will maintain status quo and the defendants shall not raise any construction over the land in dispute.