JUDGMENT H.P. Asthana, J. - This is Plaintiff's appeal and arises out of a suit for injunction restraining the Defendant from allowing his sweeper to use the chabutra for the purpose of cleaning his drop latrine which is towards the south-west of the house of the Defendant. The house of the Defendant is to the north of the chabutra which admittedly belongs to the Plaintiff. It was alleged by the Plaintiff that the Defendant had built a drop latrine in 1945 and was using his chabutra for the purpose of cleaning it which amounted to a nuisance and which was determental to his interest. The Defendant pleaded that the latrine in dispute was an old one and that he had acquired an easement over the chabutra. The learned Munsif did not frame any issue whether the Defendant had acquired the right of easement over the chabutra in dispute. The issue which was framed by him and which is issue No. 2 is as follows: Whether the mori and roshandan and sandas are new or old? If old, whether Defendant has acquired right of easement regarding them. 2. It appears from a perusal of this judgment, that he found that the Defendant had not acquired any easement over the chabutra in dispute. Accordingly he decreed the claim for injunction and prohibited the Defendant from allowing the use of the chabutra for the purpose of cleaning the latrine. He also ordered the Defendant to place wooden or iron purdah over the window of sandas so as to hide it from the view of the chabutra. The Defendant filed an appeal against this decision. It was contended in appeal that the question whether the Defendant had a right to use the chabutra for the purpose of getting his latrine cleaned had already been decided in an earlier suit No. 520 of 1936 between the same parties against the Plaintiff and the matter was therefore res judicata between the parties. This contention found favour with the lower appellate court and accordingly the appeal was allowed to this extent that the suit of the Plaintiff for injunction restraining the Defendant from the use of the disputed chabutra for the purpose of cleaning his latrine was dismissed. The order of the trial court directing the Defendant to cover the window of the latrine with a wooden or iron purdah was however confirmed. 3. The order of the trial court directing the Defendant to cover the window of the latrine with a wooden or iron purdah was however confirmed. 3. It has been contended before me in appeal that the finding of the lower appellate court that the matter in dispute was concluded by the decision in suit No. 520 of 1936 and was res judicata was incorrect. In order to decide the question whether the decision in suit No. 520 of 1936 is res judicata in the present case it is necessary to examine the pleadings and the issues which were framed in that case and also the points which were decided there. It appears from an examination of the plaint of that suit that the Plaintiff had alleged there that the Defendant had opened a new window in his sandas on account of which there was great nuisance. He also alleged there that Defendant wanted to create a right of easement over the Plaintiff's land for the purpose of cleaning this latrine. The written statement which was filed in that case is not on the record. It however appears from a copy of the judgment of the learned Munsif who decided that case that the Defendant pleaded there that the Plaintiff was not owner of the dispute land, that the disputed constructions were old ones and that the suit was barred by limitation. It does not appear from this judgment that the Defendant pleaded there that he had acquired any easement by prescription or easement of necessity over the disputed land. The issues which were framed in that suit are as follows: 1. Is Plaintiff owner of the disputed land shown with red colour in the map accompanied with the plaint does it belong to the Plaintiff? 2. How old are the parnalas, roba (window) in suit? Are they liable to be closed? 3. Is the suit barred by Articles 142 and 144 of the Limitation Act? 4. It will appear from an examination of the above issues hat no issue was framed in that suit on the question whether the Defendant had acquired any easement over the chabutra of the Plaintiff for the purpose of getting his latrine cleaned. It also does not appear from the judgment itself that this question was either considered by the learned Munsif or decided by him. It also does not appear from the judgment itself that this question was either considered by the learned Munsif or decided by him. In order to decide whether any particular matter is res judicata it is necessary to refer to Section 11 of the CPC which runs as follows: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. 5. It will appear from the above provision that before any decision can operate as res-judicata there must be an issue on that point in a previously instituted suit and parties must have been heard on that issue and then the question has been decided. As has already been pointed out above there was neither any issue on the question of easement in suit No. 520 of 1936 nor this question was decided in that suit. I do not think that the mere allegation by the Plaintiff in his plaint that the Defendant wanted to create an easement over their land is sufficient to hold that the question of easement was in dispute between the parties and had been heard and decided. In Midnapore Zamindary Co. Ltd. Vs. Chandra Singha Dudhuria and Others, AIR 1939 Cal 1 it was held that where a point was actually raised in pleadings but was not put into issue and was not argued before the Judge, raising of such point in subsequent suit will not be barred by principle of const ructive res-judicata. 6. In Moti Ram v. Karim 1933 A.W.R.(H.C.) 273 it was held by Mukerji, J. that where a question was raised but not decided no constructive res-judicata can arise. 7. In view of the above decisions and also in view of the fact that in the earlier suit No. 520 of 1936 there was no issue on the question of easement over the Plaintiff's land nor such question was decided I am of opinion that the finding of the lower appellate court that the decision in suit No. 520 of 1936 operates as ret-judicata in the present case is not correct. 8. The trial court found that the Defendant had not acquired any easement over the chabutra of the Plaintiff. The lower appellate court has not given any clear finding on this point. In order to establish easement it was necessary for the Defendant to establish that the chabutra in dispute had been used by his sweeper continuously for a period of twenty years for the purpose of cleaning the latrine in dispute. There is no evidence on this point. The lower appellate court has observed as follows on this aspect of the question: When once it is found that the sandas or the drop latrine was in existence in 1936 it is obvious that the same must have been used as such continuously and to clean the same the sweeper had to pass over and across the Respondent's chabutra to reach the window. 9. The present suit was filed in 1946 and even if the chabutra in dispute was used by the Defendant's sweeper from 1936 it could confirm any easement in favour of the Defendant. 10. The result is that this appeal is allowed and the decree passed by the lower appellate court is set aside and that of the trial court is restored. The Appellant shall get his costs of the lower court as well as of this Court from the Respondent. 11. I do not consider it is a fit case to grant leave for special appeal as in my opinion no question of law is involved in it. I therefore refused to grant leave for special appeal.