” The defendant in Title Suit No. 17/2003 of the Court of the learned Civil Judge at Nalbari has preferred this appeal challenging the judgment and decree dated 17.01.2006 whereby the suit filed by the plaintiff was decreed in entirety.

2. Plaintiff, Krishna Kumar Bharatia instituted Title Suit No. 3/2003 in the Court of the learned Civil Judge, Nalbari stating that he and the defendants as well as proforma defendants have descended from a common ancestor and they are governed by Mitakshara School of Hindu Law. During the time of his father, a deed of partial partition was executed on 17.03.1972 amongst all the co-sharers, including the ancestors of defendants where upon their respective shares were amicably separated and accordingly, they started exclusively enjoying the same. The said partition deed was duly registered being Deed No. 2049/1972 and in paragraph 2 thereof, it was noted that there is a common path leading from N.T. Road, which ends in the premises shown in the enclosed map to the plaint. This common path was being used by all the parties for necessity, including for performance of their religious rites. But in the year 2002, the defendant Nos. 1, 2, 3 and 4 created obstruction so as to restrain the plaintiff from making use of the common path. Under such circumstances, plaintiff approached the learned Executive Magistrate leading to registration of Case No. 70M/2002 under Section 133, Cr.P.C. and an order was passed for removal of the obstruction on 03.05.2002.

3. Even thereafter, the defendants were creating obstruction and so, plaintiff was compelled to institute the suit for declaration of his right and title to use the common path described in Schedule to the plaint along with consequential relief of prohibitory injunction against the defendants.

4. On being summoned, the defendant Nos. 1, 2, 3 and 4 submitted a joint written statement wherein they took a specific plea that even after execution of the Partition Deed, they continued exclusively using the approach road as their own and the plaintiff did not have any claim to the same. To obviate any scope of dispute in future Gobordan Das, father of the plaintiff was requested to relinquish his right over the approach road and accordingly, plaintiff by a letter dated 18.11.1975 relinquished his right to use the path and since then the answering defendants have been exclusively using the approach road. In the written statement, the defendant specifically denied the averments made in the plaint and stated that the plaintiff does not have any necessity of the approach road and so the suit is liable to be dismissed.

5. Upon perusal of such pleadings of the parties, the learned trial Court framed as many as 10 issues as follows:

(1) Whether the suit is maintainable?

(2) Whether there is a cause of action for the suit?

(3) Whether the suit is bad for non joinder of necessary parties?

(4) Whether the suit is bad for estoppel, acquisance and waiver?

(5) Whether proper court fee has been paid?

(6) Whether the plaintiff has relinquished his request to use common path?

(7) Whether plaintiff has title over the common path after relinquishment of his right to use the common path?

(8) Whether there is public temple/mandir inside the premises?

(9) Whether the plaintiff has joint right, title and joint possession upon the use of the common path?

(10) Whether the alleged common path is own property of the defendant?

6. In course of trial, the plaintiff examined 3 witnesses, who were cross-examined by the defendants and the defendants also examined 3 witnesses in their favour, who were duly cross-examined by the plaintiff side. After perusal of the evidence and exhibits adduced by the parties, the learned trial Court by his impugned judgment and decree dated 17.01.2006 declared right and title of the plaintiff to make use of the common path described in the Schedule to the plaint along with the defendants. The learned trial Court also issued a permanent decree of injunction restra