JUDGMENT

D. DASH, J. - In this appeal under Section 100 of the Code of Civil Procedure (for short, called as “Code”), the appellant has called in question the judgment passed by the 1st Additional District Judge, Cuttack in R.F.A. No. 133 of 2010 followed by the decree, confirming the judgment and decree passed by the learned Civil Judge, Junior Division, First Court, Cuttack in C.S No.13 of 2007.

The appellant, as plaintiff, had filed the suit, for declaration of right of use of the land described in Schedule-‘B’ of the plaint as the pathway in coming over the land described in Schedule-‘A’ of the plaint and for permanent injunction. The suit having been dismissed, she had carried the appeal under Section 96 of the code, which has come to be heard and decided by the 1st Additional District Judge, Cuttack. Since no such fruitful result has yielded in the said first appeal in favour of the appellant, this appeal has been filed.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial Court.

3. The plaintiff’s case is that she is the owner in possession of the landed property described in Schedule-‘A’ of the pliant. This land had been purchased by the plaintiff from one Nrusingha Pradhan by registered sale deed dated 30.08.1988 for valuable consideration. It is asserted that since the time of purchase, she has been in possession of the same being so delivered by her vendor, namely, Nrusingha Pradhan. The land having been so mutated in her name, she has been paying the revenue to the State. It has been further pleaded that after purchase, the plaintiff has constructed a house over said Schedule-‘A’ land and is in occupation of the same.

It is the plaintiff’s specific case that her vendor and after him, she has been using both the pathway as available over the land assigned with plot nos. 91 and 92 under Khata No. 511, the property described in Schedule-‘B’ of the plaint. It is her case that said way is being used by the plaintiff to bring agricultural produce and other materials to her land over Schedule-‘A’ through carts and tractors. It is her further case that except the said pathway lying over the land under Schedule-‘B’, she has no other alternative land to have ingress and egress to her own land in Schedule-‘A’.

When on a fine morning towards the end of the month of January, 2007, some measurement works over the land under Schedule-‘B’ was undertake by the Government Officials with an intention to construct boundary wall closing the said pathway used by the plaintiff, she filed the suit.

For proper appreciation, description of the suit land in Schedule-‘B’ of the plaint, is shown hereunder:

“SCHEDULE ‘B’

District Cuttack, Mouza Nuahat, Tahasil Cuttack Sadar, Thana Cuttack Sadar, Khata No. 11 Plot No. 91 Ac. 1.23 decimals and plot No. 92 Ac. 0.16 decimals from out of both the plot a pathway exists towards the northern side of plot No. 87 stretching from west to east towards the southern side of plot No. 91 and 92 measuring 50 feet in length x 10 feet in breadth, approximately.”

4. The prayers made in the plaint are as under:

13. xx xx xx

(a) Let a decree be passed by declaring the right of the plaintiff to sue the pathway as described in Schedule-‘B’ land to come to the Schedule-‘A’ land;

(b) Let a decree be passed by restraining the defendants permanently not to obstruct the pathway as described in Schedule-‘B’ land in any manner.

Xx xx xx xx”

The first prayer relating to the declaration of right of the plaintiff to use the pathway as described in Schedule-‘B’ of the plaint concerns with a stretch of land towards the northern side of land under plot No. 87 stretching from west to east towards the southern side of land under plot Nos. 91, measuring 50 feet (L) X 10 feet(B).

5. The State-defendant no. 1 and its officials (defendant nos. 2 and 3), without filing the written statement, contested the su