Judgment S.C.Misra, J. 1. This appeal is by the defendants. The suit was brought for partition of an orchard bearing Khesra Nos. 465, 466, 470, 472, 504, 505, 506, 507, 509 and 510 of Khata No. 48 in village Barauli in the district of Gaya. According to the plaintiffs,-the plaintiffs and their ancestors and defendants Nos. 1 to 5 and their ancestors and the landlord, namely, late Rameshwar Prasad Narain Singh, father of defendants Nos. 14, 15 and husband of defendant No. 16, decided that there should be in the village a place where Barat parties might stay. For that reason, they selected a plot near plot No. 468, which was Devi Asthan. Hence, the plaintiffs and defendants Nos. 1 to 5 agreed to contribute their lands as mentioned in Sch. A, measuring 1.44 acres. Then an orchard was planted. This was done in 1335 Fs., corresponding to 1928. After the orchard was ready, the parties who contributed their land came in joint possession of the orchard and enjoyed the usufruct according to their respective shares. There were certain changes in the shares due to sales and inheritance of the lands the details of which are given in Schedule B of the plaint. In Baisakh 1363 Fs., some persons cut some trees from the orchard as mentioned in Schedule D of the plaint and they did not distribute the timber to the plaintiffs according to the share. They finally refused to do so on the 24th of June, 1956. Hence, the suit. 2. Defendants Nos. 1 to 5 filed one set of written statement supporting the case of the plaintiffs. Defendants Nos. 6 to it having got a clue of transfer from defendants 14 to 16 filed another set of written. statement and defendants Nos. 14 to 16, the ex-landlords, filed another set of written statement. They have raised more or less identical pleas. They denied the allegation of the plaintiffs. According to them, the ex-landlord Rameshwar Prasad Narain Singh had an orchard near the Devi Asthan and he extended it by taking lands from the tenants by exchange or surrenders or auction purchase etc. He planted trees in these lands and also constructed boundary ridges all round the land in the year 1332 Fs. He was in exclusive possession of the orchard, and after his death, defendants Nos. 14 and 15 came in possession of the orchard in question. He planted trees in these lands and also constructed boundary ridges all round the land in the year 1332 Fs. He was in exclusive possession of the orchard, and after his death, defendants Nos. 14 and 15 came in possession of the orchard in question. They remained so till the 6th of July, 1956 when they sold it to defendants Nos. 6 to 11 by registered sale deed for valuable consideration and from that time onwards defendants Nos. 6 to 11 were in possession of the orchard in question. 3. . The trial Court did not accept the defence story of the acquisition of land from the tenants, as alleged by defendants Nos. 14 and 15. It held that the plaintiffs had title to the suit land and there was unity of title and possession. Accordingly, a preliminary decree was ordered to be drawn up in accordance with the shares as given in Schedule B to the plaint. The shares of defendants Nos. 14 to 16 were to go to defendants Nos. 6 to 11 who claim to have purchased the shares of these defendants. The trees given in Schedule D of the plaint were also to be divided according to the shares of the parties as given in Schedule B of the plaint. The share in trees of defendants Nos. 14 to 16 and their descendants, who were also parties to the suit, were to go to defendants Nos. 6 to 11. An order was passed for the appointment of a pleader commissioner on the petition of the plaintiffs to carve out separate takhtas for the parties. It was also directed that the pleader commissioner would allot the trees to the parties on whose land they stood so that the trees might not have to be cut down. In case the number of trees in any particular land exceeded the proportionate share of a particular party, the party who would be allotted more trees would have to pay their money value to compensate others. On appeal from the judgment it was held by the learned Subordinate Judge, Gaya, that the finding of the learned Munsif in favour of the plaintiffs and defendants Nos. 1 to 5 that they contributed certain plots of their land near the Devi Asthan, on which the orchard was raised, rested on good evidence and they had title to the suit plots. 1 to 5 that they contributed certain plots of their land near the Devi Asthan, on which the orchard was raised, rested on good evidence and they had title to the suit plots. They had also unity of title and possession and hence the plaintiffs were entitled to a decree for partition in the case and the question of limitation did not arise. It was further held that the claim of the plaintiffs that they should be entitled to trees standing on the lands after assessing their value in proportion to the respective areas contributed by them could not be allowed. They had not made out any such case in the plaint that there was an agreement between the plaintiffs and defendants Nos. 1 to 5 and their ancestors and the ancestors of defendants Nos. 14 to 16 that all parties would have a share in the timber of the trees irrespective of the fact on whose land the trees stood. Accordingly, he modified the decree and directed that "the trees would go along with the lands over which they stood." He disallowed the claim of the plaintiff, therefore, for partitioning the trees in the manner as claimed by them. The defendants other than defendants Nos. 1 to 5, who are respondents, have come up in appeal. 4. . The trial Court did not accept the defence story of the acquisition of land from the tenants, as alleged by defendants Nos. 14 and 15. It held that the plaintiffs had title to the suit land and there was unity of title and possession. Accordingly, a preliminary decree was ordered to be drawn up in accordance with the shares as given in Schedule B to the plaint. The shares of defendants Nos. 14 to 16 were to go to defendants Nos. 6 to 11 who claim to have purchased the shares of these defendants. The trees given in Schedule D of the plaint were also to be divided according to the shares of the parties as given in Schedule B of the plaint. The share in trees of defendants Nos. 14 to 16 and their descendants, who were also parties to the suit, were to go to defendants Nos. 6 to 11. An order was passed for the appointment of a pleader commissioner on the petition of the plaintiffs to carve out separate takhtas for the parties. The share in trees of defendants Nos. 14 to 16 and their descendants, who were also parties to the suit, were to go to defendants Nos. 6 to 11. An order was passed for the appointment of a pleader commissioner on the petition of the plaintiffs to carve out separate takhtas for the parties. It was also directed that the pleader commissioner would allot the trees to the parties on whose land they stood so that the trees might not have to be cut down. In case the number of trees in any particular land exceeded the proportionate share of a particular party, the party who would be allotted more trees would have to pay their money value to compensate others. On appeal from the judgment it was held by the learned Subordinate Judge, Gaya, that the finding of the learned Munsif in favour of the plaintiffs and defendants Nos. 1 to 5 that they contributed certain plots of their land near the Devi Asthan, on which the orchard was raised, rested on good evidence and they had title to the suit plots. They had also unity of title and possession and hence the plaintiffs were entitled to a decree for partition in the case and the question of limitation did not arise. It was further held that the claim of the plaintiffs that they should be entitled to trees standing on the lands after assessing their value in proportion to the respective areas contributed by them could not be allowed. They had not made out any such case in the plaint that there was an agreement between the plaintiffs and defendants Nos. 1 to 5 and their ancestors and the ancestors of defendants Nos. 14 to 16 that all parties would have a share in the timber of the trees irrespective of the fact on whose land the trees stood. Accordingly, he modified the decree and directed that "the trees would go along with the lands over which they stood." He disallowed the claim of the plaintiff, therefore, for partitioning the trees in the manner as claimed by them. The defendants other than defendants Nos. 1 to 5, who are respondents, have come up in appeal. 5. Mr. Accordingly, he modified the decree and directed that "the trees would go along with the lands over which they stood." He disallowed the claim of the plaintiff, therefore, for partitioning the trees in the manner as claimed by them. The defendants other than defendants Nos. 1 to 5, who are respondents, have come up in appeal. 5. Mr. Kailash Roy has argued in the first place certain questions with regard to the consideration of the laggits filed on behalf of the ex-landlords showing that all the plots on which the orchard stood were the property of the ex-landlords. He has raised, incidentally, also other objections to the consideration by the Courts below of the documents filed on behalf of the contesting defendants. Since, however, this question has been gone into by the two Courts below and they have concurrently held that the lands claimed to have been given by the plaintiffs and defendants Nos. 1 to 5, in fact, were their property and not the property of the ex-landlords, that question must be taken to have been finally determined by the Court below. Mr. Roy has, however, advanced an argument based on order I, Rule 8, Code of Civil Procedure. He has contended that according to the plaintiffs own case the orchard was raised on the land given by the plaintiffs and the defendants Nos. 1 to 5 and Rameshwar Prasad Narain Singh, the ex-landlord, for the purpose of planting an orchard, the shade of the trees of which would be available to the members of the village community for resting Barat parties and holding other public functions of a similar nature and the plaintiffs and defendants Nos. 1 to 5 and the ex-landlord, who contributed various portions of the land, would be entitled to the fruits and the timber of the trees in proportion to the areas which they contributed. The Courts below were in error in not clarifying at least these matters in the judgment. The decree passed by the Court of appeal below might have the effect of not only demarcating the portion of the orchard which originally was the land of the plaintiffs and defendants Nos. The Courts below were in error in not clarifying at least these matters in the judgment. The decree passed by the Court of appeal below might have the effect of not only demarcating the portion of the orchard which originally was the land of the plaintiffs and defendants Nos. 1 to 5 but might further enable them to deprive the residents of the village of their right to utilise the space in the orchard for accommodating Barat parties or holding similar functions of a temporary nature round about the Devi Asthan. Such a decree could not be passed because, according to the plaintiffs own case, the members of the village community, being local public, being interested, if they were to be deprived of the privilege, the plaintiffs should have framed their suit under Order 1, Rule 8, Code of Civil Procedure, in which case alone the Court, if satisfied with the plaintiffs evidence, could pass such a decree. The argument is well founded and it is not necessary to refer to any particular decision although I may state that Mr. Kailash Roy referred to the decisions in the cases of Vasudeva Fadhi V/s. Maguni Devan, (1901) ILR 24 Mad 387 (PC) and Babaji Daso V/s. Jivaji Yeshvant, AIR 1930 Bom 333. Since in the present case the plaintiffs themselves pleaded that members of the village community were given the right to utilise the shade of the trees in this orchard for certain performances and that lasted for a period of more than twenty years as the dedication for that purpose was made in 1925 and the suit was brought much later in 1955, prima facie, the members of the village community must be deemed to have acquired the right of easement over this land. In any view, since the suit is not brought under Order 1, Rule 8, Code of Civil Procedure, the contention made by Mr. Kailash Roy must be taken to be sound in so far as it relates to the form of the decree. The other contention of Mr. Roy with regard to the rights of the contesting defendants to be in exclusive possession of the orchard cannot be accepted in view ef the finding of facts recorded by the Courts below. The necessary relief granted must be in this form that the plaintiffs and defendants Nos. The other contention of Mr. Roy with regard to the rights of the contesting defendants to be in exclusive possession of the orchard cannot be accepted in view ef the finding of facts recorded by the Courts below. The necessary relief granted must be in this form that the plaintiffs and defendants Nos. 1 to 5s land would be demarcated as directed by the Court of appeal below by pleader commissioner with reference to the plots of land contributed by them, but they would have no right to deprive the members of the village community to use the orchard as a whole irrespective of the independent shares of the various persons who contributed their land for the purpose specified in the plaint itself. Subject to this modification in the form of the decree, the appeal fails, but in the circumstances of the case parties must bear their own costs throughout P.K.Banerji, J. 6 I agree.