1. The question involved in this appeal is whether the plaintiff is entitled to claim a certain lane marked L in the plan prepared by the Commissioner. It was argued before us that we cannot entertain this appeal and Durga Chowdhrani v. Jewahir Singh Chowdhri 18 C. 23 : 17 I.A. 122. was cited to us. The point, as argued before us, however, is that the learned Judge has misconstrued a document on which both parties rely. The misconstruction of a document is a matter which has always been considered as capable of being corrected in second appeal.
2. It is argued before us that the document was clearly in favour of the appellant. The relevant portions are paragraphs 5 and 6. The lane seems, no doubt, to be referred to as forming the boundary of the portion which is allotted to the defendants. This fact has been considered by the District Judge. He, however, refers to the fact that the lane is not mentioned in paragraph 6 of the partition deed which specifies the portions of the family property allotted to the plaintiff. The dispute arises because the lane is not definitely allotted either to the predecessor-in-title of the plaintiff or to those of the defendants : nor is the lane specifically mentioned as having been left joint.
3. We have had the benefit of very elaborate arguments on this question. In the result we are not prepared to say that the learned District Judge was wrong in considering that the plaintiff had not shown that the partition deed gave him any title to the lane. The partition deed is ambiguous. The appellant cannot succeed unless he can show that the document is in his favour.
4. We must point out that the learned District Judge has not considered the question whether the defendants have acquired any right of way over the lane by prescription. Had we differed from him in the construction of Exhibit A this would have necessitated our calling for a fresh finding. This is a matter on which their Lordships of the Privy Council expressed, themselves in the following terms :
The Courts below, in appealable cases, by forbearing from deciding on all the issues joined, not infrequently oblige this Committee to recommend that a cause be remanded which might otherwise be finally decided on appeal. This is certainly a serious evil to the parties litigant, as it may involve the expense of a second appeal as well as that of another hearing below. It is much to be desired, therefore, that in appealable cases the Courts below should, as far as may be practicable, pronounce their opinions on all the important points.' Tarakant Bannerjee v. Puddomoney Dossee 10 M.I.A. 476 : 5 W.R. 63 : 19 Eng. Rep. 1052.
5. For the reasons indicated we think there is no reason to interfere and dismiss the appeal with costs.