Lawrence Jenkins, C.J.
1. This appeal arises out of a suit brought for a declaration of the plaintiff's right and title to the land of a pathway and for a declaration that the defendant Municipality has no pathway over that land, and has no right to interfere with that path way in any way and for compensation.
2. What led to this plaint was that the Municipality of Howrah, deeming it necessary to repair the bank of a tank belonging to the plaintiff within their jurisdiction, had, after giving the statutory notice required by the Bengal Municipal Act (III of 1884), undertaken this work of repair, and for the purpose of carrying it into effect had used the soil of the pathway to which the plaint refers and of which the plaintiff claims- to be the owner. The Municipality's defence, as formulated in its written statement, was, not that the pathway was vested in it, but that what it did was justified by its statutory powers, and this plea is reiterated throughout the written statement. It is not a stray expression but the refrain of the written statement is this the Municipality was entitled to do.' Thus in the third paragraph it is alleged that the defendant Corporation having acted bona fide in the exercise of its statutory powers and in the discharge of its statutory duties and in no way in excess or in contravention of them, this Court has no jurisdiction to entertain this suit and again in paragraph 6 it is alleged that upon the plaintiff's own showing in the plaint the pathway mentioned in the 3rd paragraph thereof comes under the purview of Section 203 of the Bengal Municipal Act, whenever and as soon as the said pathway becomes dangerous to passengers, whoever they may be, nor was this limited tone of defence extended by the issues raised before the Munsif, for when they come to be examined they really are issues based on the written statement. There is no suggestion in these issues, when fairly read, that the pathway was a road that had become vested in the Municipality. The learned Munsif, no doubt, refers to the user of the right, and the indication in his judgment is that the use had been by the tenants of Babu Jogendra Nath Bose who was an adjoining owner. Having regard to that user he comes to the conclusion as a fact that it did not make the disputed pathway a public pathway. In the view he took, he passed a decree in the plaintiff's favour for one rupee, and also directed that the plaintiff's title5 to the land be declared. An appeal was preferred which was heard by the District Judge, and the whole of the trouble arises from the following expression to be found in that judgment. The learned Judge says; there is a very strong body of evidence that there is a public right of way over the land but that does not disprove the presumption as to the plaintiff's title.' What precisely the learned Judge meant by that, I do not feel sure, bat at any rate it is only fair to him to assume that no argument such as was addressed to Mr. Justice Brett with success was advanced, because it is incredible that the Judge should have come to the view he did and still have disregarded the provisions of Section 30. The result of the hearing in the lower appellate Court was that the deeree for damages was confirmed but the declaration of the plaintiff's title was stated to be subject to the public right of way shown to exist over the disputed land.
3. On appeal to this Court, the case came before Mr. Justice Brett who considered that there was a finding of the learned Judge that the pathway, as to which this dispute has arisen, was a road within the meaning of the Bengal Municipal Act of 1884, and that as such it became vested in and belonged to the Commissioner in accordance with the provisions of Section 30 of that Act. He accordingly dismissed the suit with costs, that decree being in effect the result of the two appeals that had been preferred to the High Court. Prom this decree of dismissal the present appeal has been preferred by the plaintiff : and it has been contended before us that the learned Judge of this Court should not have dismissed the suit inasmuch as this involved the disposal of the suit on a point that had never been raised in the written statement, and never had been put in issue between the parties. In my opinion, that contention is well-founded. In order to establish that the public have a right of way over any road, street, square, court, alley, or passage,' to use the words of Clause 13 of Section 6, it is obviously necessary that evidence directed to that point should be led and that the person against whom that evidence is direct-' ed should have a fair opportunity of meeting it by evidence on his side. A question of that kind is not to be determined by reference to some casual expression in the evidence or in the judgment of the lower appellate Court, but can only de determined with propriety v hen the question involved has been put in issue, at a time which enables both sides to lead evidence on the subject. That has not been done in this case; and it was wrong to dismiss the suit on that ground. I think that the case could only be decided on the issues on which the parties went to trial. On those issues it was assumed, rightly or wrongly, it is not for us to any, that the plaintiff was entitled to the pathway, and the Municipality's defence was that it acted in exercise of their statutory rights. The only question then is what would be the correct decree to pass. In the circumstance I do not think that there should be any declaration. I think the proper decree will be to award the plaintiff the damages that were given him by the Court of first instance and the lower appellate Court, that is to say, one rupee.
4. The plaintiff must have his costs of the appeals in the High Court. We make no order as to the costs in the lower Court.
5. I agree.