This is an appeal filed by the plaintiff against the decree of the appellate Judge dismissing their suit for declaration of their easement right and for perpetual injunction restraining defendants from obstructing them in passing over a path way situate to the adjacent East of their home-stead which plaintiff No. 2 purchased from the defendant No. 1, Anath Bandhu Paul on 2.5.1965 AD by dint of a registered kabala.

2. The facts found are that the plaintiffs filed the suit after obtaining permission of the Court according to the provisions of Order 1 Rule 8 of CPC and they filed the suit for declaration of their right of easement, namely right of passing over a strip of land described in the plaint and for an injunction for removal of certain obstruction placed by the defendants 1, 2 and 3 on that path way. Plaintiffs case was that from time immemorial the passage was being used as path way by themselves and the people of the locality for egress and ingress without interruption and openly as of right, for over 50 years. They also claimed this path way as an easement of necessity as there is no other way to go out of their houses. It was alleged in the plaint that the defendants 1, 2 and 3 illegally blocked the path way by constructing a hut and also putting fencing at two portions portrayed in a hand sketch map appended under fourth schedule of the plaint.

3. The path way in dispute is situate to the adjacent West of the bank of a tank belonging to the Government and it runs from Bidya Mandir Road towards North and joined with another public road to the North of the tank and that this path way is situate between the West bank of the aforesaid tank and the home-stead of the plaintiffs.

4. The defendants filed separate written statements denying the alle­gations in the plaint. The substance of the defence is that there was no path way as claimed by the plaintiffs. It was stated that the land stated to be path way was actually a grave-yard.

5. Upon the pleadings the learned Munsiff framed 5 issues for deter­mination of the suit. The issues are :

(1) Has there any public path way over the suit land ? And whether the plaintiffs are entitled to a declaration of easement right over the suit property ?

(2) Whether the plaintiffs are entitled to a decree as prayed for ?

(3) To what relief or reliefs are the parties entitled to ?

(4) Have the plaintiffs paid proper court fee ?

(5) Is the suit land a Muslim grave yard ?

5. During trial issue No. 4 was not pressed and hence learned Munsiff decided the issue in favour of the plaintiffs. Issue No. 5 was also decided in favour of the plaintiffs as according to learned Munsiff it was admitted that the suit land was not situate within grave yard. But the remaining issues were decided against the plaintiffs, and learned Munsiff dismissed the suit mainly on the ground that there was no public or private path way as was alleged by the plaintiffs.

6. The first appellate Court also concurred with him and dismissed the appeal of the plaintiffs on the ground that suit was misconceived as on facts question of easement cannot arise and that the plaintiffs also failed to prove the existence of path way.

7. It is contended by Mr. AM Lodh, the learned senior counsel appearing on behalf of the appellants that the report of the Survey Com­missioner indicated that there was a path way between the home-stead of the plaintiffs and the western bank of the tank and there was no cogent ground to ignore the report of Survey Commissioner which has not only been supported by the evidence of plaintiffs but also by Ext. B 1 the kabala whereby defendant No. l, Anath Bandhu Paul purchased his home-stead. It has, therefore been argued that the finding of the appellate Court in this regard is vague and confusive. A scrutiny of these documentary evidence is therefore necessary.

8. The report of the Survey Commissioner which has been marked as Ext. C 1 shows that the land described in schedules of the plaint was a public passage. The insp

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