1. In these eases the issue which is material for us to consider was framed in the Court of first instance in this way: 'Have the plaintiff and his co-villagers their alleged right of way by necessity, grant or prescription.' Evidence was taken with regard to that issue. When the cases came before the learned Judge in the First Appellate Court, he came to the conclusion that the issue which was really material had not been stated in the Court below; and consequently he framed the issue himself, which was in these terms, 'Have the plaintiffs acquired the right of user over the disputed path by virtue of any custom.' He purported to act under Order XLT, Rule 24, Civil Procedure Code, which I need not read; but he purported to deal with it as the re-settling of the issues; and, thereupon, as he thought, having re-settled the issues, he dealt with the cases upon the evidence as it stood, without taking any further evidence or remanding the cases for further evidence. In my judgment, with great respect to the learned Judge, I think he made a mistake. I do not say for a moment that he made a mistake when he said that this was the real issue between the parties. What I mean by saying that he made a mistake is that he did not realise that he was not re-settling the issues, but was framing an entirely new issue which was quite different from any one of those which were tried by the learned Munsif. Therefore he came within Order XLI, Rule 25, Code of Civil Procedure, which runs in these terms: 'where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits.' That is what the learned Judge thought in these cases. Evidently he came to the conclusion that that was the issue which was essential for the right decision of the eases-then what were his powers? The Appellate Court may if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal preferred, and in such case shall direct such Court to take the additional evidence required.' I think that is the course which the learned Judge ought to have taken.
2. Mr. Justice Mullick has directed as follows: 'The Subordinate Judge's decree will he set aside and the case will be remanded to him with a direction that he would send down the 2nd and 3rd issues framed by him to the Court of First Instance for a finding returnable within two months of the record reaching the latter Court. It will be open to both parties to adduce such additional evidence as they may require. On receipt of the First Court's finding the Lower Appellate Court will dispose of the appeal without delay.' I think that is a proper and right order to make in these cases. The result will be that in my judgment both the3e appeals will be dismissed and Mr. Justice Mullick's order will stand. Inasmuch as neither side has succeeded, there will be no order for costs of these appeals.
3. I agree.