JUDGMENT Sen, J. - This appeal arises out of a suit for a declaration that a certain strip of land constitutes a passage over which the Plaintiff has a right of way, for an order directing the Defendants to remove an obstruction erected by them on the passage and for an injunction upon them restraining them from interfering with the Plaintiff's right of way. There was also a claim to a right of passage of the drainage water from the Plaintiff's land along a strip by the side of this pathway. The trial Court dismissed the suit and on appeal, the learned District Judge has decreed it.only so far as the pathway is concerned. The Defendants now appeal. There is no appeal or cross-objection regarding the claim to a right of passage of water. The dispute between the parties now relates only to the pathway. There seems to have been some misapprehension in both the Courts below regarding the basis of the claim of the Plaintiff and regarding the law relating to easements. The trial Court has found that a pathway as described by the Plaintiff had existed several years ago but that no trace of it could now be found, that for the last 12 or 14 years the passage had not been used and that it has been abandoned. On these findings, the learned Munsif has dismissed the suit. The learned District Judge in allowing the appeal from the learned Munsif's judgment says this: -- The commissioner found no signs that the path claimed had been used recently. That may be so. It is dear that the permissive way to the south in the more convenient Bat the path which was acknowledged to exist in 1278 M. E (or 1916 A.D.) is still used, at its eastern end, by other occupants of this block, and it is clear that it was kept open for the convenience of the various householders at the time of partition. If the Plaintiff has once in the last twenty years openly walked out of his house in an easterly direction that is sufficient assertion of a right inherent in the use of his home. There appears to have been no attempt until recently to block the way. The Plaintiff is entitled to an injunction in order to keep it open. 2. There appears to have been no attempt until recently to block the way. The Plaintiff is entitled to an injunction in order to keep it open. 2. Learned Advocate for the Appellants contends that the Plaintiff's claim being based on prescription it has become barred as the right has not been exercised for more than two years prior to the suit. He refers me to the provisions of sec. 26 of the Indian Limitation Act and argues that the learned Judge took an erroneous view of the law when he said that the Plaintiff was entitled to succeed if he had walked along the pathway once in the period of 20 years. 3. Now, easements may be acquired in various ways and the exact legal position of a person claiming an easement would depend upon the manner in which he has acquired the right. If the Plaintiff's claim is based on statutory prescription, i.e., if he seeks the assistance of the provisions of sec. 26 of the Indian Limitation Act to establish his right, then certainly his claim will fail unless he can prove that he enjoyed this right up to a period ending within two years of the suit. In such a case not only must the Plaintiff prove that he enjoyed the right of way peaceably, openly and as of right -- nec vi, nec clam, nec precario -- and as an easement without interruption for a period of twenty years but he must also show that this period of 20 years' enjoyment extended up to a time within two years of the suit. If it can be shown that for a period of two years prior to the suit the Plaintiff did not enjoy the right the suit will fail. I am not unmindful of the distinction between user of the right and enjoyment of the right. The distinction was pointed out in the case of Koylash Chunder Ghosh v. Sonatun Chung Barooie. ILR 7 cal. 132 (1881) Garth, C.J., said in that case -- The 26th section of the Limitation Act only renders it necessary, so far as we can see, that the enjoyment of the right claimed should have continued till within two years before suit. The section Bays not a word as to any actual user or exercise of the right within two years. The section Bays not a word as to any actual user or exercise of the right within two years. It is obvious to us that the enjoyment intended by the section means something very different from actual user. In order to establish the right, the enjoyment of it must continue for twenty years; but in the case of discontinuous easements, this does not mean that actual user in to continue for the whole period of twenty years. 4. If, however, the Plaintiff in this case be treated as claiming under sec. 26 of the Limitation Act it will not be enough for him to show that during the last 20 years he once used the passage. He must show that he enjoyed the right till within two years of the suit. The view taken by the learned Judge would be entirely wrong in a case where a right of way is claimed by prescription under sec. 26 of the Indian Limitation Act. An easement by prescription or long user can, however, be acquired otherwise than by the aid of sec. 26 of the Indian Limitation Act, for instance, if a person can show that he has enjoyed a right of way over some one else's land from time immemorial in such a way as to lead to the presumption of a grant of such right, then he would be entitled to succeed in his claim to such a right of way as an easement and it would not be necessary for him in such a case to establish that he has enjoyed this right within two years of the suit. This was the view taken by the Privy Council in the case of Maharani Rajroop Koer v. Syed Abdul Hossein.L.R. 7 I.A. 240 (1880) The Plaintiff's rights cannot be properly determined unless one ascertains the basis on which he claims these rights. I have been through the plaint. It is tainted with all the defects characteristic of Mofussil draftsmanship, but it seems clear that the Plaintiff is claiming this right on the basis of long user for over 100 years. I have been through the plaint. It is tainted with all the defects characteristic of Mofussil draftsmanship, but it seems clear that the Plaintiff is claiming this right on the basis of long user for over 100 years. After alleging that he and the Defendants and their predecessors have used the adjoining plots of land as their dwelling places for over 100 years he goes on to say: -- No body has any personal right or interest in the said pathway or drain, neither does the Plaintiff claim any personal interest therein But the Plaintiff has been using the same as ghata (pathway) without any obstruction 'out of necessity' and 'by long user' and residing in the dwelling house for more than 100 years in succession to his predecessor in interest. 5. Now the use of the words "out of necessity" in the plaint has in my opinion no meaning. An easement of necessity can only arise when there has been a severance of tenements. There is no allegation in the plaint of any severance of tenements. It is not suggested in the plaint that by reason of a partition or splitting up of land this pathway has become a necessity. The allegation is that this pathway has been in existence from time immemorial and that it has been serving all the adjoining tenements or plots of land. Without an amendment of the plaint the Plaintiff could not be allowed to claim this right of passage as an easement of necessity and no amendment was ever prayed for at any time. The Courts below do not appear to have appreciated the true legal meaning of the term "easement of necessity." Further, the lower Appellate Court was wrong in coming to a finding that the pathway " was kept open for the convenience of the various house-holders at the time of partition." The Plaintiff has not pleaded this as origin of the right which he claims. He has not pleaded any partition at all. The lower Appellate Court should not have made out a case for the Plaintiff the foundation for which is not to be found in the plaint. 6. The only legal basis of the claim alleged in the plaint is that of long user. He has not pleaded any partition at all. The lower Appellate Court should not have made out a case for the Plaintiff the foundation for which is not to be found in the plaint. 6. The only legal basis of the claim alleged in the plaint is that of long user. The Court will have to decide upon the evidence whether there has been long user of such a description as would give rise to a presumption of a grant of this right of way. If the Court feels justified in making such a presumption then the Plaintiff's claim will not be defeated by the mere fact that the right has not been enjoyed for two years prior to the suit because sec. 26 of the Limitation Act will have no application to such a case. If upon the evidence a grant cannot be presumed then the Court will decide whether the Plaintiff's claim can succeed on the basis of the statutory prescription provided for in sec. 26 of the Indian Limitation Act, i.e., the Court will decide whether the Plaintiff has succeeded in proving that he has enjoyed this right nec vi nec clam nec precario and as an easement for a period of twenty years ending within two years of the suit. 7. The decree passed by the learned District Judge is set aside and the case is remanded to him for re-hearing in the light of the observations made above. The costs of this appeal will abide the result.