Heard Mr. K.A. Mazumdar, learned counsel for the appellant. Also heard Mrs. R. Choudhury, learned counsel for the respondents.

2. The appellant Musstt. Naju Begum Choudhury was the Defendant No. 1 in the Title Suit so preferred by the respondents in T.S. No. 105/1988. The aforesaid Suit was decreed in favour of the respondent/plaintiffs and on an appeal preferred against the Judgment & Decree, the same was upheld by the appellate Court in T.A. 52/1993 and against the concurrent findings, the present appeal has been preferred by the appellant.

3. The brief case of the respondent, as plaintiff, is that there was a path of 6 cubits in breadth and length of Dags No. 111, 112, 113 of 2nd RS Patta 59 of Mauza Ambikapur which is described in the Schedule B of the plaint. The said land was in existence since 02.06.1980 when the land of Patta No. 89 was amicably partitioned among the heirs of late Nasha Mia Choudhury by registered Deed No. 2672 dated 02.06.1980 for common use of path by co-pattadars. Since then, the said path was used by co-pattadars and neighbours without any interruption from any corner. The Defendant No. 1 who was co-sharer as well as also purchaser of some land of the said patta, got possession over the land in the year 1983 and she made construction of House on the aforesaid land and thereby created obstruction in the peaceful use of path by the plaintiff and others. Though the obstruction was removed at the intervention of Executive Magistrate followed by an apusnama dated 12.06.1987 but again on 19.05.1988, the Defendants No. 1, 2 and 3 had put obstruction by putting some bamboo fencing and refused to remove the obstruction inspite of requests made by the plaintiffs. It is stated that the aforesaid road was the only approach for ingress and outgress from their homestead and they are in very difficult position from getting out, from their houses and they have to go out of their home over the paddy field of others which again submerged in rainy season. It is, therefore, the respondents plaintiffs filed the title suit for a declaration that the plaintiffs have acquired the right of user over the land as path and for declaration that Defendants No. 1, 2 and 3 have no right, whatsoever, in any way, to obstruct the plaintiff from using the path and for a permanent mandatory injunction directing the Defendants No. 1 to 3, to remove all sort of obstructions.

4. Only the Defendant No.1 (appellant, herein) contested the suit by filing written statement denying all the averments made in the plaint as usual. It has been specifically stated that said Nasha Mia Choudhury was the owner of 5B 4K 11Ch of land pertaining to the suit land bearing Dag No. 111, 112, and 113, of Patta No. EP-59. After the death of Nasha Mia Choudhury, the suit land was partitioned amongst the legal heirs, i.e. 9 sons and 10 daughters by a registered Deed of Partition mentioning a path upto the share of sons only keeping the lands of daughters measuring about 2B 1K 2Ch in ejmali out of which, Defendant No. 1 got 4k 1ch 16g in her name. That apart, she also purchased some land from the co-sharers in the suit patta and became the owner and possession of 14K 7Ch and 12g in the aforesaid Dag.

5. It is further stated that as the aforesaid Deed of Partition and her purchased Deed, are silent about the path in between share of answering defendants and Sofia Begum, the present occupier of the land but in order to create a path, a case under section 133 of the Code of Criminal Procedure, 1973, was filed in the Court of Executive Magistrate on 18.02.1988 concealing the facts. Accordingly, it is submitted that the suit is liable to be dismissed.

6. Upon the pleadings, the learned trial Court framed the following issues:

(i). Is there any cause of action for the Suit?

(ii). Is the Suit maintainable in its present form and manner?

(iii). Is the Suit barred by limitation?

(iv) Is the Suit is properly valued and stamped?

(v) Whether the Suit is bad for defec