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3. The trial court on the materials placed by both sides forming conclusions that the pathway existing through the plaint property has a width of 8 feet, that the defendant has crystalised a right of easement by prescription over that pathway by continuous use without obstruction, and, that the interference over the pathway by defendant imputed by plaintiffs had taken before institution of the suit in which no mandatory injunction was  sought for non-suited the plaintiffs. Suit was however dismissed with some directions namely., that the report and plan prepared by Commissioner shall form part of the decree, defendant has to maintain height difference at all time between the road and adjoining plaint schedule property on either sides as noted in the above report and plan of Commissioner and that in the event of the defendant reclaiming plaint schedule property disturbing the width and height difference noted in Ext.C1 report plaintiffs shall have a right to institute a fresh suit. Suit dismissed with directions as aforesaid was challenged in appeal by plaintiffs. In that appeal plaintiff moved an amendment application seeking an additional relief of mandatory injunction for removal of the culvert put up by the defendant beside the pathway. The appeal was allowed and reversing the decree of dismissal the case was remitted with some observations/directions. In fact, entering certain  findings, the case was remitted for fresh disposal, after affording opportunity to the defendant to file written statement to the amended plaint, and, also both sides to lead further evidence in support of their respective case. Against that order of remission passed by the learned District Judge defendant has come up with this appeal.

6. The defendant had raised divergent and contradictory defences, one destroying the other, that the plaintiffs are not the owners of the property and then, their entitlement for a right of prescriptive easement over a pathway having a width of 10 feet running through the plaint schedule property. He has not raised any counterclaim to sustain the claim of prescriptive easement which was one among the two contentions. What are the issues raised in the suit by the  Munsiff have been stated supra. So much so,any observation made by learned Munsiff with respect to the right of easement claimed by defendant over the pathway running through the property or its width cannot be considered as a conclusive finding over such claim, which was never raised as an issue in the suit, but, only a challenge putforth to resist the entitlement of plaintiffs to get the equitable relief canvassed by them in the suit. Right of easement claimed by defendant to resist the suit claim of injunction if so found tenable and acceptable on the materials placed at best can only form acceptance of a defence projected, and in a suit of this nature where no counterclaim for declaration of right of easement is claimed by plaintiffs, no conclusive finding on the right so claimed can be entered by the court when on the pleadings of the parties no issue thereof was raised for adjudication. Even an incohate right, which has not matured into a full right for use of  the pathway by defendant if established would be sufficient to non-suit the plaintiffs when their suit is only for injunction. In such a suit entitlement of plaintiffs to the equitable relief thereof depends on the question whether there has been an invasion or threatening to plaintiffs' right to or enjoyment of their property by the act or deed of the defendant against whom the injunction is sought for. Where the defendant shows that he has a legal right to enjoy any portion of the plaint property whatever be restrictive right of such enjoyment he need not further show his entitlement for declaration of such right in that suit to resist the injunction applied for. So whatever observations made by learned Munsiff with respect to the right of easement by prescription claimed by defendant over the pathway can only be considered as having been made with respect to the acceptance of the defence presented by him and not of a finding as if the  defendant has a right of prescriptive easement over any portion of the suit property. Whether he has a right of prescriptive easement would arise for consideration only on raising an issue thereof and its determination by the court. Otherwise the claim of easement made by defendant can be appreciated only as a defence to resist the suit claim. On materials placed tentative opinion over acceptance of that defence alone is called for especially where the suit is filed for injunction alone.

7. Learned Munsiff had issued directions to treat Ext.C1 report and C1(a) plan as part of the decree while dismissing the suit, after holding that the pathway running through plaint property has a width of 8 feet which is not the width described by the plaintiffs or defendant.The rough sketch prepared by the Commissioner,Ext.C1((a)would have no relevance in identifying or determining the pathway if that become essential at a later stage.  Commissioner conducted inspection soon after the institution of the suit. Features noticed by him at the site were reported by him in Ext.C1 report. Even the description of pathway stated by him in that report which are quoted in the judgment of the Munsiff would serve no purpose for its identification. Identification of pathway in relation to the rest of the plaint property and preparing of plan by a surveyor after measurement of the property would be absolutely essential where parties have disputes regarding width, and also height from the rest of the plaint property lying on its two sides on account of alleged dumping of soil by the defendant. I have adverted to the aforesaid aspects only to point out the need for taking out such a Commission to identify the pathway to consider the issues arising for adjudication and also entitlement of plaintiffs for the relief canvassed.

8. So far as the challenge raised against the  order of remission passed in appeal by the learned District Judge, I do not find any merit. Commission report would indicate tampering with pathway took place three days prior to the institution of the suit. Plaintiffs failed to seek a decree of mandatory injunction but only sought for a perpetual injunction and the suit after trial led to its dismissal, cannot be a ground to deny the amendment sought to seek a decree of mandatory injunction. Amendment thereof allowed by the learned District Judge in the given facts of the case is only proper and correct. As rightly contended by learned counsel for plaintiffs no prejudice or hardship has been caused to the defendant by such amendment as his right to file a written statement and resist the claim thereunder leading evidence is still protected and ensured. Plaintiffs are admittedly the owners of plaint property. Whatever be the right claimed by defendant to use the pathway, that too for  vehicular traffic in exercise of his alleged right of easement by prescription what is the width of the pathway and its height from the rest of the property and whether defendant has tampered with plaint property constructing culverts, dumping of soil etc and whether such acts could be treated as acts done for maintenance of the pathway in exercise of the right of easement claimed, are all matters that can be decided only on the materials produced in the case. Even assuming that defendant has a right of prescriptive easement over the pathway no conclusion as such could be formed that construction of culverts, dumping of soil, if such acts have been done by him over the pathway, are acts done in exercise of maintaining the pathway and that is protected under section 22 of the Indian Easement Act. What was the nature of pathway previously what acts were done by defendant over such pathway and whether such acts could be treated as acts done for maintaining the  pathway in exercise of his right for use of the pathway, provided he has a right of easement by prescription by long and continuous use, are questions to be looked into and decided in the suit to consider the entitlement of plaintiffs and the reliefs canvassed under the amended plaint by which injunction both perpetual and mandatory are claimed.