Judgment Prabhat Kumar Sinha, J. 1. Following two substantial questions of law were formulated by this court while admitting this appeal, namely "(1) Whether court of appeal below acted illegally in discarding the pleader commissioners report and depending upon Amins report not appointed by the court and based his judgment on the same; (2) Whether the lower appellate court acted illegally in reversing the judgment of the trial (court) without considering the materials considered by the trial court." 2. At the outset it may be mentioned that there was also a cross appeal which stands dismissed. 3. When this appeal was taken up for consideration it was pointed out to the learned counsel that the learned first appellate court had taken into consideration the report of the Pleader Commissioner. The first appellate court appears to have discussed this aspect of the matter in paragraph 39 of the judgment observing that it appeared that the learned Pleader Commissioner had not made scientific measurements. In the opinion of the learned appellate court the learned Pleader Commissioner had prepared the report to "tally" the claim of the plaintiffs. Other points in the report of the Pleader Commissioner have also been discussed. However, in paragraph 40 of the judgment the learned first appellate court has again discussed the evidence of D.W. 7, Pleader Commissioner, who had inspected the disputed plot on the direction of the District Judge, Purnia in Miscellaneous Appeal no. 16 of 1983 in which he was directed to measure the extent of the construction made by defendant no. 1 at that time. His report was Exhibit-D and Exhibit-E was the sketch map prepared by him which have been taken into account by the first appellate court. This being the case of encroachment made in the gali (passage) claimed by the plaintiffs to be their purchased land, the learned first appellate court found, by reading the Exhibits that the total length of the land falling in between the lands of both the parties was 170 ft, east to north and the width of the lane between the northern wall of the defendants house under construction and the plaintiffs southern wall was 3 5". On the basis of this report also the learned first appellate court did not find that any encroachment was made in the lane. On the basis of this report also the learned first appellate court did not find that any encroachment was made in the lane. The learned first appellate court, however, has not discussed the report of the Amin though that has been touched in paragraph 5 of the judgment of the trial court. 4. In view of this situation, the learned counsel for the appellants as well for the respondents agreed that no question of law as formulated at no. 1 was involved in this appeal. 5. Therefore, this appeal has to be considered in the light of the substantial question of law no. 2 formulated by this court. 6. In brief, the case of the parties may first be enumerated. 7. But before proceeding to discuss the materials on record in regard to the aforesaid, I will address myself to the order of this court dated 20.7.1998 in relation to an Inter Locutory Application no. 6819 of 1998 (at flag Q). This court had ordered that this application would be considered at the time of hearing. In course of hearing I also heard the learned counsel for both the sides on this application. 8. This is an application under Order 41 Rule 27 of the Code.of Civil Procedure filed by the appellants who had claimed that respondent no. 1 had encroached upon Schedule B land (passage) which was on plot no. 930 purchased by appellant no. 1. It was averred therein that during the pendency of this second appeal the respondent no. 1 had filed Title Suit no. 124 of 1993 against the State of Bihar and Purnia Municipality and under Order of this court in Civil Revision no. 2128 of 1994 the plaintiffs also were added as party. It was submitted that land in plot no. 935 (the lane in controversy) belonging to the Municipality was encroached upon by respondent no. 1, and the Municipality had filed Suit no. 1 of 1993-94 against respondent no. 1 in a land encroachment case in which by order dated 19.2.1998 the respondent no. 1 was directed to remove the encroachment within fifteen days. The prayer was to admit that order, Annexure 1 to the petition and Annexure-2, which was notice for removal of encroachment, in evidence. 9. The order under Annexure-1 to the application was passed by the Subdivisional Officer, Sadar at Purnia. That relates to plot no. 1 was directed to remove the encroachment within fifteen days. The prayer was to admit that order, Annexure 1 to the petition and Annexure-2, which was notice for removal of encroachment, in evidence. 9. The order under Annexure-1 to the application was passed by the Subdivisional Officer, Sadar at Purnia. That relates to plot no. 935 claimed by the Municipality, and not plot no. 930. That order was passed by an Executive Court during the pendency of this appeal. When the matter is pending in a competent court including the High Court, a decision in such a proceeding cannot influence the court. For these twin reasons, I do not think that this application can be allowed. The application, therefore, stands rejected. 10. Now coming to the appeal in hand, first I will take up the cases of the respective parties. 11. Smt. Nilima Mandal wife of Shri Shailendra Kumar Mandal, who are plaintiffs had brought Title Suit No. 133 of 1982 mainly against defendant no. 1, Bachchraj Nahar (parties to be referred as plaintiffs and defendants as in original suit) stating therein that one Kun Kun Pathak who was having title over more or less 5 kathas and 2.5 dhurs land, the description given, sold the same to one Madan Mohan Das by a registered deed of sale dated 20.1.1926 whereafter purchasers came in possession and constructed their shop on the eastern point of land facing municipal road and also constructed residential house adjacent west, leaving a 3 wide passage close south to the shop and the building which passage ran east to west, and was 4 wide at its western end which entire property he sold to the plaintiffs in the name of plaintiff no. 1 by registered deed of sale dated 29.12.1962, giving full description of the land (Schedule A to the plaint). On the western edge of passage the plaintiffs constructed a soakpit of their lavatory, as shown in the plan and took water connection from the concerned department duly sanctioned by the Purnia Municipality having stop cock and the chamber for water on a portion of passage at its eastern end, without any objection by the defendants. 12. The land at the southern boundary of the plaintiffs land belonged to Ishan Chand Ghosh, father of Sujash Kumar Ghosh (defendant no. 2) who sold the land in his share to defendant no. 12. The land at the southern boundary of the plaintiffs land belonged to Ishan Chand Ghosh, father of Sujash Kumar Ghosh (defendant no. 2) who sold the land in his share to defendant no. 1 by registered deed of sale dated 5.5.1982 which the vendor had got. in a partition decree in Title Suit no. 402 of 1971 in which northern boundary of the land was shown as lane, thereafter "Kalpana Store" (shop of the plaintiff). 13. Subsequently, in a proceeding under section 144 of the Code of Criminal Procedure, between the two parties the defendant no. 1 claimed that the aforesaid passage was included in the land of the defendant. It has been claimed that defendant no. 1 encroached land at the southern extremity of the passage at its western end, as also encroached land in the middle portion of the passage whereafter they started construction of Pucca building. The plaintiffs prayed for a decree of declaration that the suit land fully mentioned in Schedule B of the plaint (the passage portion) was part and parcel of plaintiffs purchased land and that the defendants had no right, title or interest in that, who had started construction over the land of the plaintiffs. Further relief was that defendant first party be permanently restrained not to interfere or to do any construction over the suit land (passage land) even after the disposal of the suit, as well for demolition of the construction already made by encroachment. 14. The defendant no. 1 has made out a case that Kun Kun Pathak was owner of land measuring 5 kathas and 2.5 dhurs and he had sold the land with house to Madan Mohan Das showing house of Ishan Chand Ghosh on the southern boundary. Madan Mohan Das came in possession over the land and constructed shop and building, but denied that he had left any passage out of the purchased land. It was claimed that the passage to the south of the plaintiffs land was exclusive property of Ishan Chand Ghosh which was being used by Madan Mohan Das, and later by the plaintiffs, with express permission of Ishan Chand Ghosh, therefore Madan Mohan Das could not have sold the passage to the plaintiffs. It was claimed that the passage to the south of the plaintiffs land was exclusive property of Ishan Chand Ghosh which was being used by Madan Mohan Das, and later by the plaintiffs, with express permission of Ishan Chand Ghosh, therefore Madan Mohan Das could not have sold the passage to the plaintiffs. However, it is claimed that though Madan Mohan Das had purchased 5 kathas and 2.5 dhurs of land by registered kewala (Exhibit-C/1) but he sold an area of 5 katha 19 dhurs to the plaintiffs (Exhibit-2). It is claimed that soakpit was constructed and stop cock and chamber for water connection were installed with permission of defendant no. 2. It was claimed that defendant no. 1 had purchased the land from defendant no. 2 which also included the (passage) land. It was admitted that in the partition decree, the northern boundary of the land allotted to the vendor of defendant no. 1 was shown as lane and also admitted that when defendant no. 1 submitted plan for construction of the house over purchased land, he had left 3 wide land to the north of proposed construction, meaning thereby the passage in question. It was also claimed that the land purchased by the plaintiffs had now been recorded in Municipal Survey under plot no. 930 having an area of 5 katha 10 dhurs. It was denied that the defendant no. 1 had encroached upon the passage land. 15. The learned trial court had decreed the suit with cost, and awarded compensation of Rs. 100/- for the encroached portion of the land in favour of plaintiffs, whereas that judgment and decree has been set aside by the learned first appellate court. The learned first appellate court has mainly relied on the following points for arriving at its conclusion. 16. Madan Mohan Das, who was the vendor of the plaintiffs vide sale deed (Exhibit-C/1) dated 20.1.1928 had purchased 5 kathas and 2 and Vz dhurs of the land, but Madan Mohan Das through Exhibit-2 had sold the same land, which is also clear from the evidence on record, but giving area of 5 kathas and 19 dhurs. 16. Madan Mohan Das, who was the vendor of the plaintiffs vide sale deed (Exhibit-C/1) dated 20.1.1928 had purchased 5 kathas and 2 and Vz dhurs of the land, but Madan Mohan Das through Exhibit-2 had sold the same land, which is also clear from the evidence on record, but giving area of 5 kathas and 19 dhurs. The argument of the first appellate court is that Madan Mohan Das could not have sold more land than what he had acquired by Exhibit -C/1 which negatived the claim of the plaintiffs that out of his own land the vendor had left out the passage to the southern side of the land. 17. In so far as this point is concerned, the learned first appellate court also has stated that Sri Basudeo Mandal, Advocate Commissioner, had also furnished a report that the house and shop of the plaintiffs stood on 5 katha and 5 dhurs of land. It is also on the record that in the Municipal Survey Khatian the land of the plaintiffs was recorded under plot no. 930 measuring 5 katha 10 dhurs whereas the passage or lane was recorded under Municipal Plot no. 935. The judgments of lower courts also admitted that in Exhibit-C/1 it was mentioned that the measurement of land was being mentioned approximately, without measuring the same. The argument of the learned first appellate court is that even if approximate area was given, that could differ by one or two dhurs of land but not as many as 16 and ½ dhurs of land. 18. However, this point is not very important because no evidence has come nor it has been considered in either of the judgments of lower courts as to whether, if the plaintiffs had more land in possession (at least 5 kathas and 10 dhurs as per Municipal Survey) than could have been sold to them by Madan Mohan Das, on which side of the plot excess area did lie. Obviously, as per evidence, plaintiffs are shown to have more land, as per report of Sri Basudeo Mandal, aforesaid, or as per Municipal Survey. 19. Second point for disagreeing with the decision of the lower court was that the learned first appellate court had led much stress upon the boundary shown in Exhibit-C/1 and in Exhibit-2. Obviously, as per evidence, plaintiffs are shown to have more land, as per report of Sri Basudeo Mandal, aforesaid, or as per Municipal Survey. 19. Second point for disagreeing with the decision of the lower court was that the learned first appellate court had led much stress upon the boundary shown in Exhibit-C/1 and in Exhibit-2. In Exhibit-C/1 in the southern boundary of the land purchased by Madan Mohan Das was shown the land of Ishan Chand Ghosh from whose branch defendant no. 1 had purchased the land in the south. Similar was the situation with Exhibit-2,, the sale deed through which the plaintiffs had purchased the land from Madan Mohan Das. The argument was that since not the lane but land of Ishan Chand Ghose was shown on the southern boundary, it manifestly showed that the passage appertained to the land of Ishan Chand Das which was, ultimately, purchased by defendant no. 1. 20. But there is a fallacy in this argument. The claim of the plaintiffs is that out of their purchased land they had left out a passage, 3 wide at eastern extremity and 4 wide at western extremity. It was the only passage enabling them to go to their house behind the Kalpana Store, a shop of plaintiffs, or for the tenants of the plaintiffs to reach their residential portion and for the inhabitants of a Rest house of the plaintiffs as it has come on the record that they also were running a rest house in a portion of their house. If the plaintiffs claim the passage to be their own land then, naturally, the two documents would show the land of Ishan Chand Ghosh at the southern boundary of their land, not the lane. 21. The learned first appellate court has discussed the evidences of the witnesses who by and large have supported the case of the parties who had called them to take oath as witnesses. Answer to this controversy, however, can be ascertained from other materials on the record. 22. It is admitted position that the lands of Ishan Chand Ghosh were subject matter of a partition suit bearing no. 402 of 1971. The admitted position of defendants is that 14 decimals of the land had fallen to the share of Sujash Kumar Ghosh, the vendor of defendant no. 1, in the partition decree. 22. It is admitted position that the lands of Ishan Chand Ghosh were subject matter of a partition suit bearing no. 402 of 1971. The admitted position of defendants is that 14 decimals of the land had fallen to the share of Sujash Kumar Ghosh, the vendor of defendant no. 1, in the partition decree. In that regard in the decree (Exhibit-5) in the northern boundary of the land allotted to Sujash Kumar Ghosh, the lane was shown. If the lane was not at the boundary, but inside the boundary, then in the partition suit to which all the sharers were parties including vendor of defendant no. 1, they would not have allowed the lane to be shown at the northern boundary of the land. 23. Material, in this regard, also is Exhibit-C which in the list of documents has been shown to be original registered sale deed dated 5.5.1982 executed by Sujash Kumar Ghosh which, however, appears to have been signed by the learned Munsif as Exhibit-C-1. In this document there is clear cutting by pen in the boundary of the land purchased by the defendant no.1, on the north side, but admitted position is that before the cutting the narration had depicted "lane thereafter" and the rest was "M/s Kalpana Store of Sri Shailendra Kumar Mandal." At the end of the typed portion of the recitals of the document there is a note written by hand which states as follows:- "The cut made in page 2 in boundary northern side has been correctly made and signed by the vendor". Ashok Kumar Ghosh is one of the witnesses of the execution of this document who is D.W.5, and is brother of Sujash Kumar Ghosh. The definite case of the defendants is that the passage belonged to Ishan Chand Ghosh but the plaintiffs after their purchase and before their purchase their vendors were allowed passage to their house through that lane by Ishan Chand Ghosh, whereafter by the defendant no. 1. This witness had admitted that in the partition suit, in Schedule showed B the northern boundary of the land that fell in share of his brother, lane and thereafter Kalpana Store were shown. In cross-examination (paragraph 9) this witness also admitted that in Exhibit-C in the northern boundary the lane and thereafter Kalpana Store was shown but later lane was struck off at the direction of his brother. In cross-examination (paragraph 9) this witness also admitted that in Exhibit-C in the northern boundary the lane and thereafter Kalpana Store was shown but later lane was struck off at the direction of his brother. However, he admitted that when he had signed over the document as witness, that cutting was not there. But he also admitted that the cutting subsequently was made in his presence. However, this witness did not say as to at what stage or time the cutting was made. Even then, the cutting goes against the final decree passed by a competent civil court and, therefore, will be of little value. 24 Therefore, in so far as claim of title in between the plaintiffs and defendant no. 1 is concerned, the documents clearly do not favour claim of defendant no. 1. 25. The third point relied upon by the learned first appellate court was that it had come in evidence that this lane was used by other people also and for that Exhibits- F and F-1 were also pointed out which were representations made by the plaintiffs to the Executive Officer of Purnia Municipality relating to the alleged encroachment by defendant no. 1 over the passage. Learned first appellate court said that in these it was admitted that the passage was used by others also. However, this observation is not correct. Exhibit-F-1 follows Exhibit-F which was given earlier in which the plaintiffs claimed that in between the lands there existed a lane "which is being used by the residents of the north as a lone passage". Therefore, the claim clearly was that the passage was the only way for coming to their residential houses for the persons residing north to that passage. It also has come in evidence that the western extremities of the passage was closed by construction of a wall by a third person. 26. There is nothing on the record to show that this passage was or is being used by defendant no. 1 or earlier by his vendor for coming to their land, rather the evidence shows that this passage is the only access for the plaintiffs to go to their house situated behind Kalpana Stores and was also being used by his tenants and the inhabitants of the Rest House. 27. In so far as the conflict of title in between the plaintiffs and defendant no. 27. In so far as the conflict of title in between the plaintiffs and defendant no. 1 is concerned, evidently the learned first appellate court could not give cogent reasons for setting aside the decree of the trial court. However, there is one other aspect of the matter which appears to have escaped notice of both the lower courts. It has come in the judgment of the learned lower court at pages 18,19 and 20 that whereas land of plaintiffs was recorded under Municipal Survey plot no. 930 and that of defendant no. 1 under plot no. 936, the passage in question which is suit land was recorded under Municipal Plot no. 935. Therefore, this land has been recorded in Municipal Survey neither in the plot of the plaintiffs nor in the plot of defendants. It has come in the judgment the trial court that document was brought on the record to show that the disputed passage was recorded under Municipal Plot no. 935 in the name of Purnia Municipality. No doubt that it has also been mentioned that survey proceedings had not concluded. But since at that time the suit land was recorded in the name of Purnia Municipality with no evidence that any objection to that was filed either by the plaintiffs or the defendants, for deciding title it was essential to make the Purnia Municipality a party as, in such circumstances, this question could be decided in presence of the Purnia Municipality. That not having been done and the disputed land even tentatively standing in the name of Purnia Municipality and it not having been shown that such entry was ever disturbed, title to either plaintiffs or defendant no. 1 can not be granted in absence of Purnia Municipality. 28. Before turning to the other point that also has not been considered by the lower courts it is necessary to find out if there was any encroachment in the passage by the defendants. The learned appellate court has noticed that evidence of the plaintiff was vague about the area of encroachment. The findings of the learned trial court in this regard is also not based on conclusive evidence. Exhibit-D is the report of Nitaya Nand Arya, D.W. 7, who had measured the land as Advocate Commissioner, having been issued writ of commission in the related Miscellaneous Appeal no. The findings of the learned trial court in this regard is also not based on conclusive evidence. Exhibit-D is the report of Nitaya Nand Arya, D.W. 7, who had measured the land as Advocate Commissioner, having been issued writ of commission in the related Miscellaneous Appeal no. 16 of 1983 between the same parties then pending in the court of District Judge, Purnia. According to his evidence, the report (Exhibit-D) and Exhibit-D/1 (sketch map), it will appear that he had found 3 5" passage throughout, from the eastern extremity to the southern extremity. It has not been brought conclusively on the record in the evidence of the plaintiffs, j as to up to what point the lane was 3 wide from eastern extremity and how far it was 4 wide from western extremity, but since the passage throughout was found 3 and 5" broad, for the sake of deciding the dispute between the two parties permanently, it may be taken up that this passage was 3 5" throughout from east to west which was being enjoyed by the plaintiffs, his tenants, and the residents of Rest House and earlier by his vendor. The measurement given by the plaintiff also stands negated by the measurement of the lane by Advocate Commissioner who found its width to be 3 5" even at eastern end, though claimed less by the plaintiff. 29. As I have already stated, in view of the materials on record it is not possible in this case to decide the title but the plaintiffs have also claimed relief that the defendant first party be permanently restrained form interfering with the right of passage or from making any construction over the suit land even after disposal of the suit. This relief I will consider in connection with the width of lane 3 5" throughout. I have already- stated, in so far as claim of title only in between the plaintiffs and defendant no. 1 is concerned, the documents go in favour of the plaintiffs. If it could be held that the plaintiffs had title over the land, then the aforesaid relief could easily have been granted. 30. But even if it was held that the passage belonged to Ishan Chand Ghosh which land was purchased by defendant no. 1 is concerned, the documents go in favour of the plaintiffs. If it could be held that the plaintiffs had title over the land, then the aforesaid relief could easily have been granted. 30. But even if it was held that the passage belonged to Ishan Chand Ghosh which land was purchased by defendant no. 1, or the passage was a Municipal lane, admittedly since decades the vendors of the plaintiffs and after purchase the plaintiffs and others living to the north of the passage, had been allowed to use the same as only access to their residential portion. The defendant no. 1 also has admitted this in his written statement. Therefore, if this passage did not belong to the plaintiffs, they have acquired right of easement to use the passage as ingress or egress to and from the residential portion. Having acquired this right the defendants now cannot be allowed to interfere in the enjoyment of that right. 31. Obviously, the plaintiffs have not claimed the right of easement as they made out a case for their title. But from their pleading it is clear that they have claimed that they or their vendor had always been using the passage. Therefore, even if this land did not belong to them it is inherent from the pleading that a claim of right of easement was also made out and this right stands admitted by the defendant first party. Brother of his vendor as D.W. 6 also admitted this right. 32. The plaintiffs not having specifically claimed right of easement a question may arise as to whether that may be considered at this stage. Such a right can be claimed even if no specific averment was made in the pleadings but facts were there making out such a claim and evidence was also led on that point relating to use of the passage which right was admitted by the defendant no. 1, first party. No new evidence is required to hold that even if the land did not belong to the" plaintiffs, they have acquired right of easement to use the passage. Therefore, in such a situation this court can consider this plea even at appellate stage and grant relief. 1, first party. No new evidence is required to hold that even if the land did not belong to the" plaintiffs, they have acquired right of easement to use the passage. Therefore, in such a situation this court can consider this plea even at appellate stage and grant relief. In this regard the decision of this court in the case of Govind Yadav vs. Deoki Devi, 1980 B.L.J. 276 and a decision of the Apex Court in the case of Kameswaramma vs. Subbarao, A.I.R. 1963 S.C. 884 (paragraphs) may be referred to. 33. In view of the discussions aforesaid, the appeal is allowed and the judgment and decree of the first appellate court is hereby set aside. The suit is decreed in part and defendant first party is permanently restrained not to interfere, in any way, in the enjoyment of the right of passage concerned by the plaintiffs or the persons living adjacent north of the passage aforesaid which is the subject matter of the suit. Any encroachment if ever found in the passage aforesaid by defendant no. 1, that will be got removed by process of law. Since this finding and order is based upon right of easement of the plaintiffs, title of plaintiffs not having been declared, the plaintiffs while enjoying this right are also restrained from making any encroachment in any manner in the suit land, i.e., the passage in question till the plaintiffs get their title over the suit land declared by a competent court. A decree be drawn up accordingly. 34. The parties will bear their own cost.