K.N. Saikia, J. - (1.)THE Appellants instituted Title Suit No. 25/85 against the Defendants and the members of the Sundari Mohan Seva Sadan Trust Board for declaration that since the time of their predecessors the Plaintiffs had absolute easement right to the path described in Schedule I and to the part thereof described in Schedule II of the plaint for passage of their men and carriages and that the Defendants had no right to hinder the Plaintiffs' use of, or their passage along, that path; for declaration that the Defendants had no right to transform or block or deface either by dumping earth or in any other way the aforesaid path or part thereof; for confirmation of Plaintiffs' possession of the suit path; for removal of the obstructions and delivery of khas possession of the path; and for injunction retraining the Defendants from transforming or obstructing the aforesaid path or part thereof.
(2.)THE Plaintiffs' case was that they purchased their homesteads in dags No. 400 and 385 of second R.S. Patta No. 59 under Pargana Barakpar, Mouza Tarapur Part II from Tek Bahadur, Ram Singha and others in 1953. The Chencoree Tea Company was the owner of the land and the Plaintiffs, as their predecessors, used to pay rent to the tea estate regularly. The suit path was the only path that connected the Plaintiffs' homestead and the P.W.D. road. Their vendors used the path publicly, continuously and without any opposition for more than 20 years and the Plaintiffs had also been using the same path for passage of persons and carriages to and from the P.W.D. road to the north of their homestead and thereby they acquired easement right thereto. They further stated that the suit path was the only outlet from their residences to the P.W.D. road on the north and they claimed easement right over the path by virtue of their predecessors easement right and that the Defendants had no right to put any obstacles, block or deface or transform the said path or any part thereof. It was stated that a few years after the Plaintiffs purchased their homesteads, the Defendant No. 1 built her residence to the east of the path and had railed one pucca building named as 'Sundari Seva Bhavan' with the help of Defendant No. 2, her employee and attempted to include the path into her compound, raised bamboo fence enclosing part of the path described in Schedule II thereby hindering Plaintiffs' passage along the path.
The Defendants denied the allegations and stated that Defendant No. 1 was the owner and occupier of 10 Bighas of land in Dag No. 400 of the suit patta and constructed a two storied building for the Sundari Mohan Seva Sadan Hospital and also purchased 3 Bighas from Defendant No. 3 and had been in occupation of the said land and there was a path 2 cubits in breadth to the western side of the homestead exclusively used by the Defendants. In 1962 when the Defendant Nos. 1 and 10 were detained under the preventive Detention Act, the Plaintiffs connected a path from their homestead with the said path by cutting a (Sic)la and also widened the same, but when Defendant 1 and 10 were released from detention they developed the said hospital and re -occupied their path which neither the Plaintiff nor their vendors had any right to use.

(3.)THE learned trial court took the suit to be one for declaration of customary right of way in the suit path and framed the following issues:
(1) Is there any cause of action for the suit?

(2) Is the suit maintainable in its present form?

(3) Have the Plaintiffs acquired the right of easement as claimed?

(4) Does the suit suffer from defect of parties?

(5) To what relief, if any, are the Plaintiffs entitled to? At the trial the Plaintiffs examined 7, while the Defendants examined 2, witnesses. The trial court decided issue Nos. 1, 2 and 3 in favour of the Plaintiffs and hold that by virtue of their purchase the Plaintiffs acquired the customary right of way over the suit path and they had the cause of action for the suit which was maintainable; that the landlords were not necessary parties to the suit; and the Plaintiffs having acquired their easement right over the suit path, the Defendants were to remove all obstructions from the Schedule II part of the path and as a result the suit was decreed.

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