1. This second appeal is by defendant 1 against the judgment of affrmance. The plaintiffs originally prayed by way of reliefs 1 and 2 as follows:-

(i) that the Court be pleased to pass a decree for permanent injunction, restraining the defendants from obstructing the suit land from user as a path or passage by construction of a wall over it or by any other manner in plaintiffs favour against defendants 1 and 2;

(ii) that if in the meantime, the defendants complete the obstruction, the decree may be passed to remove the obstruction and to bring the suit land to its original condition, prohibiting the defendants permanently from obstructing the suit land, in plaintiffs favour against defendants 1 and 2.

2. It seems, the plaint was later amended and after relief (ii) (mentioned above) the relief (ia) was allowed to be added, which is as follows :

"ia. that the Court may be pleased to pass a decree declaring that the plaintiffs got title and possession as their Kast land or in the alternative got customary right of easement and are entitled to recover possession by removal of the structure made by the defendants."

3. Thus, the suit was for a declaration of title and recovery of possession with relief of permanent and mandatory injuction with respect to the suit land and alternatively, plaintiffs pleaded customary right of easement. The suit land is only an area of 6 Dhurs forming part of Municipal Khesra No. 18498. This disputed portion is on north west portion of the plot in mohalla Mufti in the town of Darbhanga.

4. The plaintiffs case was that the suit plot originally belonged to defendant 2, which was his Minhai land. According to the plaintiffs this suit plot i.e. 18498 along with other plots was settled with the mother of the plaintiffs by defendant 2 under a registered Patta dated 10th March, 1950 and since then the mother of the plaintiffs came in possession and constructed a house thereon. According to the plaintiffs the house was built on 9 dhurs 11 dhurkies of the suit plot along with other plots and on the north west portion of the suit plot privy was made and according to the plaintiffs this portion of the suit plot in dispute was left for the passage for Mehtar to clean the privy and for the use of the passers - by of the locality and other needs of the personal necessity. According to the plaintiffs since 1950 the suit land in dispute had been in use in the manner aforesaid.

5. The plaintiffs further case was that though by the aforesaid registered patta, the entire plot i.e. 18498 measuring 15 dhurs 11 Dhurkies was settled to their mother, but by oversight only 10 Dhurs was described as the area of the plot in the registered Patta. According to the plaintiffs the defendants l and 2 in collusion with each other put a Tatti on the suit land and obstructed the passage to privy and thereafter defendant 1 started digging foundation over the suit land and began to construct a brick wall in the month of December, 1974 which necessitated filing of the present suit.

6. The plaintiffs claim that although they had title and possession over the same on the basis of the registered Patta dated 10th March, 1950, yet even if it was deemed to be a State property, the plaintiffs have got customary right of path over the same.

7. It is pertinent to note here that the State of Bihar was also made a party as defendant 3.

8. The suit was contested only by defendant 1 and defendant 3 (State of Bihar). They filed their separate written statements. According to the State of Bihar (defendant 3) the suit land had vested in the State of Bihar and neither the plaintiffs nor defendants 1 and 2 had any right, title or interest in the suit land.

9. The contesting defendant 1, inter alia, pleaded that the plaintiffs mother did not get the settlement of the entire suit plot by the Patta dated 10 March, 1950. The defence of defendant 1 was that the suit land was never in possession of the plaintiffs mother or even to the plaintiffs. Accordin