1. This is an appeal from a decision of the learned District Judge of Hooghly, dated the 10th May 1913, modifying the decision of the Munsif, third Court, at Howrah. The plaintiffs brought their suit against the defendant, the Chairman of the Municipal Commissioners of Howrah, for a declaration that a certain pathway was a private pathway and that the defendant Municipality had no right or control of any kind over the said pathway and further, for an injunction restraining the defendant Municipality from interfering in any way with the control of the said pathway. The case obviously raised two questions: first of all, whether the pathway vested in the Municipality and, secondly, if it was not so vested, whether the Municipality had any right of control over it. Those two defences were distinctly raised in the written statement filed by the defendant Municipality. The case went for trial before the learned Munsif and the Munsif found that the pathway was, what he called, a private pathway. The case then went on appeal to the learned' District Judge. The learned District Judge first of all found that the pathway was not vested in the Municipality. He raised for his own decision--and quite rightly--the question also as to whether the pathway was under the control of the Municipality as provided for by the Act. But the learned Judge refrained from deciding that question.
2. The first question is, 'is this pathway vested in the Municipality under Section 30 of the Bengal Municipal Act?' That depends upon the construction of the section. The section has been amended by recent legislation and it is argued that by reason of that amendment the Statute operates to vest all roads, whether private or not, within the limits of the Municipality. That view is supported by two unreported decisions, both by a single Judge of this Court. On the other hand, in a considered judgment of Mr. Justice Mookerjee in the case of Chairman of the Howrah Municipality v. Khetra Krishna Mitter 33 C. 1290 at p. 1304 : 10 C.W.N. 1044, 4 C.L.J. 343, the learned Judge has put what to my mind is the only possible construction of Section 80. I agree with the learned Judge in the view he has expressed there as to the meaning of the section. Any other view, I think, is altogether outside the range of argument. I have no doubt that the conclusion arrived at by the learned Judge of the Court below on the facts found by him, that the pathway does not vest in the Municipality, is right.
3. Then comes the other question. The learned Judge has not found whether the public have or have not a right to go over the pathway in question. If the public have a right to go over the private pathway, then the Municipality, under certain later sections of the Act, have been given the power of control, the difference being that, in the case of roads vested in the Municipality, they are the body responsible for lighting, watering, sewering and clearing the roads and, in the other case, where the road is not so vested in the Municipality, they have only the power of control to prevent the road from becoming a nuisance or the rights of the public from being interfered with. The learned Judge has failed to consider that case altogether, and he has made a declaration that this is a private pathway. It is quite clear that it is essential for the proper disposal of the case that the learned Judge should find whether this is a road within the meaning of Section 6, Clause (13), of the Act, that is, a road over which the public have a right to go. If they have, then the Municipality have a right of control as conferred by the later sections of the Act and any declaration or injunction that should be awarded against the Municipality in that view would be subject, of course, to the right of control conferred on the Municipality by the later sections of the Act. The learned Judge in this case has also refrained from granting an injunction. We have not had the cross-appeal opened before us. It may or may not be a proper case in which an injunction should be granted, or it may be that a declaration will satisfy all the requirements of the present case. But, however that may be, the second part of the case, which is an essential portion of it, namely, as to whether this is a private road not vested in the Municipality but over which the public have a right to go, and, therefore, the Municipality have a right of control under the later sections of the Act, has not been considered or decided by the learned Judge of the lower Appellate Court. The present case must, therefore, go back to the lower Appellate Court to have the appeal re-heard by the learned District Judge. Costs will abide the result of the re-hearing before the learned Judge of the lower Appellate Court.
4. I agree.