1. This is an appeal from an order of the Subordinate Judge of Hoogly, dated the 10th March 1916. The order is an order of remand made in a suit brought by the plaintiff to establish her right of way over certain plots of land belonging to the defendant Srimati Baseemati Debi, the appellant before us. In the trial cases the suit was treated by the learned Munsif and by the parties as a suit to establish an easement over the land in the nature of a right of way acquired by prescription under the provisions of Section 26 of the Indian Limitation Act or in the nature of a. right of way of necessity. In the Trial Court the plaintiff failed and the suit was dismissed. When the case came before the Court below, the learned Subordinate Judge concurred with the Munsif in holding that on the evidence on the record the plaintiff had failed to prove that she was entitled to a right of way either on the basis of prescription or on the basis of necessity. Looking at the pleadings and the issues I should have thought that when he came to that conclusion, the learned Subordinate Judge would have at once dismissed the appeal and confirmed the decree of the Munsif. Instead of doing this, however, he went on to discuss other questions which do not appear to have occurred to the parties on their legal advisers or to the Court at the trial. He suggested that even if there was no easement made out under the provisions of Section 26 or even if the claim in so far as it was dependent on that section was barred by limitation, not having been brought within two years of the time when the right of way was obstructed, nevertheless the plaintiff might have some title founded either on custom or grant or some right to use this way as a village road or even as a public road. If the plaint be read as a whole with reference to the statement of facts to be found there, it is quite clear that the plaintiff based her case either on Section 25 or on necessity and on no other ground. The Subordinate Judge refers to paragraph 7 of the plaint, which asserts generally that the plaintiff has acquired an indefeasible right of user to pass and re pass over the plots in dispute and that no one has a right to prevent her by putting up fences or in any other manner. That assertion, however, is merely a summary of the claim as it is put forward in the preceding paragraphs of the plaint. It is quite clear, as I have said, from the preceding paragraphs that the plaintiff's claim is founded either on prescription under the act or on necessity. The learned Judge further refers to issue No. 5 as that issue was framed by the Munsif. The issue runs as follows : Has the plaintiff a right of easement of way or of necessity over the disputed land.' It may be that reading the issue apart from the pleadings and apart from the allegations of facts on which the plaintiff founded her claim, it would be wide enough to cover questions of grant or custom or dedication. But it is an elementary rule that the determination of causes depends on the allegations and the proof. In one part of his judgment dealing with issue No. 5 the learned Munsif says: On the whole, the plaintiff's witnesses speak about the public user of the pathway which is not the plaintiff's case.' It is plain that the path was not claimed by the plaintiff as a village path or as a public path and the learned Subordinate Judge was not entitled to raise new points involving fresh evidence in appeal and to remand the case for the trial of questions which had never occurred to the parties previously.
2. It has been suggested by the learned Pleader who has appeared for the respondent that this order of remand made by the learned Subordinate Judge was not an order under Rule 23 of Order XLI from which an appeal would lie, but under Rule 25 of the same Order from which no appeal would lie. In form, however, the order is an order under Rule 23. The suit has been remitted to the Trial Court to be re-heard not only on the evidence already recorded but on such further evidence as the parties may desire to adduce. It may be that regard being had to the terms of Rule 23, this is not a case in which it was, strictly speaking, open to the learned Subordinate Judge to make an order under that rule. But whether the order was regularly made or irregularly made it appears to me to be in form and substance an order under that rule. That being so, the order must be treated as an order under Rule 23 from which an appeal lies. On this point I am unable to accept the contention of the learned Pleader for the respondent.
3. The result is that, in my opinion, the order of remand must be set aside and the suit remitted to the Court of the Subordinate Judge in order that the appeal to that Court may be finally disposed of with reference to the observation I have made. In setting aside that part of the judgment of the Subordinate Judge which remands the suit we leave untouched his findings on the. rest of the case. It may, therefore, be unnecessary in that Court to do more than to make a decree but, as I have said, it will be for the Subordinate Judge to dispose of the appeal. The appellant is entitled to the costs of this appeal. We assess the hearing-fee at three gold mohurs.
4. I agree.