JUDGMENT Kidwai, J. - This appeal arises out of a suit instituted by Saktu against Mangu, now dead and represented by the Appellants, claiming that Mangu had obstructed a public road and there after a right of passage leading from the main public road to his house by erecting Nands and putting in pegs at various places shown in the site plan accompanying the plaint. The reliefs claimed were that a permanent injunction should be issued to the Defendant not to stop the passage of the Plaintiff and to dig up the nands constructed by him and the pegs planted by him. It was also prayed that a nali which was said to have been altered in its direction should be ordered to be restored to its original position. 2. The Defendant pleaded that his hands and pegs had been existing for a long time at the place at which they were: that the house in respect of which the Plaintiff sought the right of passage had been constructed very recently and that the nali had always existed at the place where it was. 3. The learned Munsif framed four issues, the first of which was "Has the Plaintiff a right of prescriptive easement in respect of the alleged nali and the alleged Rasta in suit? If so, its effect." The trial court found that the Plaintiff's house in respect of which the right of way was sought was an old house: that the constructions were new and that the nali had also been diverted within recent times. An injunction was accordingly issued restraining the Defendant from interfering with the right of way, directing the cattle through and the pegs to be removed and directing the nali to be restored to its old position. 4. The Defendant appealed and the learned Civil Judge of Sitapur upheld the decision of the Munsif and dismissed the appeal. The Defendant having died in the meanwhile, his heirs have now come up in second appeal to this Court. 5. 4. The Defendant appealed and the learned Civil Judge of Sitapur upheld the decision of the Munsif and dismissed the appeal. The Defendant having died in the meanwhile, his heirs have now come up in second appeal to this Court. 5. It is contended by the learned Counsel for the Appellants that: (1) According to the Commissioner's plan as well as according to the plaint itself, a portion of the route along which rasta is claimed is a public road and the claim based upon prescriptive right with regard to this portion is not valid; (2) That an occupier of a house cannot claim a prescriptive right of easement against the landlord or against another occupier in respect of land belonging to the same landlord: and (3) That the courts below have mis-appreciated the evidence which has been adduced. 6. The plea raised in the first ground is not contained in the grounds of appeal. It was not taken in the lower appellate court, nor was it taken in the trial court. The plaint makes it clear that there were separate kinds of rights claimed, one was in respect of the use of a public thoroughfare and the other was in respect of the use of a piece of land which was not a part of the public thoroughfare, but over which the Plaintiff claimed that he had a right to pass. When the issues were being framed, his counsel stated that he claimed prescriptive right of easement in respect of the rasta and the nali and thereupon an issue was framed in the terms which I have already, stated. 7. It will be seen from the pleadings that at no time was the existence of the public thoroughfare along a portion of the route over which the Plaintiff claimed a right disputed and the map prepared by the Commissioner makes it perfectly clear that there is such a public road. The real dispute turned upon the land connecting this portion of the public road with the piece of land lying in front of the door of the Plaintiff. The case of one party was that he had been using this for at least 28 years; while the case of the other party was that the Plaintiff's new house was built only two years ago and, therefore, there could be no prescriptive right. The case of one party was that he had been using this for at least 28 years; while the case of the other party was that the Plaintiff's new house was built only two years ago and, therefore, there could be no prescriptive right. The dispute, therefore, centered round the question as to the length of time for which the right to use the piece of land had been enjoyed. Obviously this dispute had nothing to do with the portion of the land admitted to be a public road. It was for this reason that the issue was framed in this way, but it did not affect the trial of the real point in controversy. In any case the plea not having been taken in any of the courts below and it not being merely a question of law, but depending to a great extent upon the form of the pleadings, which can always be amended it cannot be allowed to be taken in second appeal. 8. With regard to the claim by a tenant against a landlord the learned Counsel for the Appellants relied upon a Full Bench decision reported in Udit Singh and Ors. v. Kashi Ram I.L.R All. 185, Bahadur v. Khushi Ram and Ors. 11 A.L.J. 990, Radha Kishun and Others Vs. Sundar Mal and Others, AIR 1934 Patna 11 , and other cases, to which it is not necessary to refer. 9. The first of the cases mentioned was based upon the English law. Mahmood, J. in his judgment points out that it was not given under the Easement Act, which allowed a right of easement not only to the owner, but also to the occupier as is clear from Section 4 of the Indian Easements Act. The present suit must be decided on the basis of Section 4 and Section 12 of the Indian Easements Act. Section 4 defines easement as a right which the owner or occupier of certain land possesses. Section 12 provides that an easement may be acquired by the owner of immoveable property or, on his behalf, by any person in possession of the same. Section 4 defines easement as a right which the owner or occupier of certain land possesses. Section 12 provides that an easement may be acquired by the owner of immoveable property or, on his behalf, by any person in possession of the same. Thus the English Law has not been enforced in India and a very common instance in which a tenant can claim easement against his landlord is the case of Sahan darwaza a right which was claimed in this suit by Mangu and which is nothing more than an easement acquired by long user by the occupier of a house against his own landlord, in land belonging to that landlord. Further all the three cases to which I have referred are cases of a tenant claiming against the landlord. The position of a house owner in an Indian village is not the same as that of a tenant. He is not the owner nor is he a lessee. His position is anomalous. It is a light even against the owner of the land to continue to occupy it so long as the house exists and is not abandoned. The right is, therefore, of a permanent nature and the occupier is not merely in temporary occupation but he can continue in occupation so long as his family does not die out or he does not voluntarily abandon the house. Any right of easement which he claims is a right for his better enjoyment of the property. It is not a right claimed on behalf of the land owner as is the case of a lessee claiming the right both under the English law as well as under the Indian law. The absurdity pointed out by the learned judges in the Full Bench case of Allahabad was that a person on behalf of the owner claimed a right against the owner himself in other property of the owner. The absurdity pointed out by the learned judges in the Full Bench case of Allahabad was that a person on behalf of the owner claimed a right against the owner himself in other property of the owner. As I have pointed out no such absurdity arises in a case of easement claimed by the occupier of a house in an Indian village, even if he claims a right of easement against the land owner himself When an occupier can claim such a right against the land owner himself, there is absolutely no reason why he should be debarred from claiming such a right against another occupier who at best is in no better a position than the landlord whose land he occupies. In these circumstances there is nothing to prevent an occupier claiming under the Indian Easements Act a right of easement even against the landlord or another occupier of land. This plea must, therefore, be overruled. 10. The third contention is concerned with an appraisement of the evidence. The learned Counsel for the Appellants has contended that the courts below have not given due weight to the fact of enmity existing between the Plaintiff and a close relation of the Defendant which according to the Defendant was the real reason for a false case being filed against them by the Plaintiff. The lower appellate court has considered the existence of this enmity and has found that it is proved. It has nevertheless proceeded to say as it was entitled to say, that the mere proof of enmity does not mean that all the witnesses have perjured themselves. Inspite therefore of the consideration of the question of enmity, it has not disbelieved the evidence of the Plaintiff. On the other hand the evidence of the Defendant has been rejected. The whole matter is one of the appraisement of the evidence and not a question of misappreciation of it. In second appeal it is not possible to interfere with a finding of fact, if it has even evidence which the court of second appeal might consider to be weak to support it. That being so, the findings on the question as to when the house of the Plaintiff was constructed and when these obstructions were raised are findings of fact which cannot be interfered with in second appeal. That being so, the findings on the question as to when the house of the Plaintiff was constructed and when these obstructions were raised are findings of fact which cannot be interfered with in second appeal. Similarly the finding as to the length of time for which the Plaintiff has been using this land, i.e., that it exceeds twenty years, is also a finding of fact with which there can be no interference in second appeal. 11. It was also contended by the learned Counsel for the Appellants that a suit for an injunction against an individual who obstructs a public road cannot be framed in the manner in which the present suit has been framed. It is contended that such a suit can only be brought u/s 91 of the CPC after obtaining the leave of the Advocate General. Sub-section (2) of Section 91 itself, however provides that nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions. In the present case the cause of action alleged by the Plaintiff was not the creation of any nuisance by the Defendant or the obstruction of the right of other persons to use a public road he instituted the suit merely to vindicate his private right, which no doubt was common to others also, to use a public road and to get removed an obstruction to that road. Apart from the right of the public, each individual member of the public has a right to use a public road and there is no reason why he should be restricted in the enforcement of his right to continue to use that road, merely because other members of the public do not choose to object to the obstruction of that road. It may be noticed that this plea also was not taken in any of the courts below, not has it been taken in the grounds of appeal to this Court. Nevertheless it is a plea purely of law and I have, therefore, considered it, but I do not find that the plea is sustainable. 12. The result, therefore, is that the appeal fails and is dismissed with costs.