JUDGMENT :

The appellants in the appeal have called in question the judgment and decree passed by learned District Judge, Jagatsinghpur in R.F.A. No. 19 of 2012.

2. These appellants as the plaintiffs have filed C.S. No. 83 of 2007 in the court of learned Civil Judge (Jr. Division), Jagatsinghpur. The suit having been dismissed, they had carried the first appeal which has also been dismissed.

3. The case of the plaintiffs is that the suit land under ‘Bagayat’ Kisam stands recorded jointly in the name of the defendants. The plaintiff no. 1 to 3 are the recorded owners in possession of the land under plot No. 146 measuring Ac. 0.17 decimals; plot no. 148 measuring Ac.0.20 decimals and plot no. 155 measuring Ac. 0.019 decimals under Khata no. 160 of village Bandilo. They being brothers claim to have 5 annas 4 pais share each over the same which is said to have been so noted in the record of right. It is stated that the land covered under plot no. 146 and 145 are the homestead and land under plot no. 148 is used as ‘Gharabari’. Plaintiff no. 4 and 5 are the sons of plaintiff no. 1, whereas plaintiff no. 6 and 7 are the sons of plaintiff no. 2 and 3 respectively. It is stated that plaintiff no. 8 had purchased the land under plot no. 147 to an extent of Ac. 0.01 decimals from Sapani Bhoi, Bipin Bhoi and Aparti Bhoi by registered sale-deed dated 23.02.1998. The plaintiff no. 9 and 10 are the sons of plaintiff no. 8. Plaintiff no. 11 claims to have purchased land under plot no. 137 of an area of Ac. 0.08 decimals from one Lingaraj Bhoi by registered sale-deed dated 25.08.2003. The land under plot no. 330 is said to have become a part of river embankment and used by public including the parties to the suit to approach the main road.

It is their further case that the land covered under plot no. 137, 137, 145, 146, 147 and 155 are in a compact block and public road runs over plot no. 133 which is connected to the land under plot no. 330 and these plaintiffs who are the owners of above land have no alternative way except through the suit land to approach the main public road. The suit land thus is said to be the only path for those lands owners to the came to the public road, which was also being used by their vendors. They also say that a well is there over the suit land which the plaintiffs are using as was being used by their vendors for so many years. In view of all these, the plaintiffs claim that though suit land stands recorded in the name of the defendants, they being the owners of land under plot nos. 137, 147, 146, 148 and 155 have been using the same as aforesaid. They filed the suit apprehending infringement of in their exercise of their right of easement and user of the suit land as path way.

4. The defendants have raised the plea of maintainability; the suit land being not properly described as required under the provision of order-7 rule 3 of the Code of Civil Procedure. It is their specific case that one Bhikari Bhoi was the owner in possession of the suit land who had transferred the same in favour of their father Kanhei Bhoi, by registered sale-deed in the year, 1951 followed by delivery of possession. The defendants stated that they have their residential house over the suit plot and have been residing therein with their family members. It is stated that during consolidation operation, no such claim of right of easement has been advanced by the plaintiffs. They have denied the existence of any passage over the land under plot no. 136. It is specifically stated, there is no linkage between land under plot no. 146 and 155 with the suit land as also with the land under plot no. 137 which intervenes the land under plot no. 146, 155 of the suit land. It is their case that the plaintiff no. 11 purchased the land under plot no. 137 only in the year 2003. They further state that plaintiff no. 1 to 11 are in possession of the land under their respective plots and they have their separate access from those lands to the main road. The