JUDGMENT This second appeal by M. Chandra Babu Singh arises out of a suit instituted against him by Kh. Nadiachand Singh claiming declaration that the latter has a right of passage, based on easement, over a strip of pathway measuring 130 x 8. Another prayer made was for a decree directing the defendant to remove the fencing which he had set up in the pathway in such a manner that only 4 of it in width was available for use by the plaintiff. The suit was decreed by the trial Court on 24-12-1964 and an appeal taken by the defendant to the Court of District Judge was dismissed on 18-2-1966. In this second appeal the correctness of the decrees made by the two Courts below is challenged. 2. The plaintiff had attached to the plaint a plan showing the pathway in dispute, which is marked XY therein, as also the plots and other properties surrounding that pathway including his own house on the west of it (the pathway) it was alleged in the plaint that the plaintiff had been using the pathway both for his personal passage and for taking his bullock carts along it to his house for a period of more than 20 years and that too quite openly, uninterruptedly, and as of right. On that account, he pleaded, he had acquired right of easement over the pathway for the said two purposes. It was on 28-10-1961, it was alleged, that the defendant engaged some labourers and put up a fence enclosing one half of the path width-wise to the great inconvenience of the plaintiff. The suit was instituted on 1-12-1961. 3. The defendant resisted the suit by denying that the plaintiff had a right of way over a path as wide as 8. It was alleged that the pathway runs through the patta land of the defendant and the plaintiff was out to take undue advantage of a part of that land for using it as a pathway instead of making his own arrangement for egress from and ingress to his own house. It was specifically denied that the plaintiff had ever used the pathway for plying bullock carts. Issue was joined with the plaintiff on the point that the latter had been using the pathway in dispute for a period exceeding 20 years. It was specifically denied that the plaintiff had ever used the pathway for plying bullock carts. Issue was joined with the plaintiff on the point that the latter had been using the pathway in dispute for a period exceeding 20 years. The defendant had purchased the land over which the disputed pathway lies on 4-6-1956 from its previous owner Leirenjao Singh. In para 11 of the written statement he (the defendant) had alleged that the plaintiff had requested him for user of the pathway for a short period until he could fill up a portion of the pond adjoining his house on the east for making a pathway over it, that he (the defendant) acceded to the request made, and that when he found that the plaintiff was not taking any steps to fill up the pond he stopped him from using the pathway in dispute. 4. The trial Court settled six issues between the parties. But we are concerned in this appeal only with three of them. They are in the following terms: x x x x x x 3. Whether the plaintiff has been using the suit pathway for both bullock carts and foot path for more than 20 years openly and uninterruptedly as of fight by right of easement? 3 (a) Has the defendant raised fencing over the pathway? 4. Is the pathway 8 in breadth? The trial Court held that the pathway which the plaintiff had been using is 8 in breadth, that the defendant had encloses one-half of it widthwise by setting up a fencing in October 1961, and that the plaintiff had acquired an easement over the entire pathway both for himself and for taking his bullock carts over it.These findings of the trial Court were affirmed by the learned District Judge in the judgment dated 18-2-1966 by which he dismissed the appeal of defendant. 5. The only point which Shri Ibotombi Singh urged on behalf of the appellant in this Court was that all the requirements Set out in Section 26 of the Limitation Act (IX of 1908) for acquisition of absolute and indefeasible right of easement have not been established in this case and as such the suit merited dismissal. His contention, to be precise, was that the plaintiffs user of the pathway had not been peaceably enjoyed for a period of more than 20 years. His contention, to be precise, was that the plaintiffs user of the pathway had not been peaceably enjoyed for a period of more than 20 years. In support of that contention, he invited the Courts attention to the litigation which had cropped up between the plaintiff and Leirenjao Singh, the previous owner of the plot over which the pathway runs, and canvassed on the basis thereof that the plaintiff cannot be said to have enjoyed the pathway peaceably for a period of 20 years or more. It was admitted on behalf of the plaintiff that the latter had filed a case against Leirenjao Singh in the Court of Sub-Deputy Collector, Imphal West, complaining of some obstruction occasioned by Leirenjao Singh in the matter of user of the pathway by him for his cart. Ext. A/1 is a certified copy of the order dated 5-3-1953 made by the Sub-Deputy Collector. It is a brief order. The officer held on going through the report of the Circle Amin that the action of Leirenjao Singh in blocking the pathway was not reasonable inasmuch as the pathway had been in existence for a long time and the plaintiff had been using it continuously. Leirenjao Singh was examined by the defendant M. Chandra Babu Singh in the trial Court as his witness. During his examination-in-chief all that Leirenjao Singh happened to depose was that he had sold the ingkhol (homestead land) to the defendant when it was lying vacant and that the plaintiff "uses only a foot path." What the witness meant to convey by the latter part of the statement was that the plaintiff had no right to use the pathway for taking his bullock cart over it. It is to be noted that the witness did not affirm in examination-in-chief that the width of the pathway was only 4 or that the plaintiff had not been using the entire width of 8 for his foot path. The statement that he made in examination-in-chief is not without a background. During cross-examination he deposed that the plaintiff had been living in the ingkhol adjoining the pathway for the last 27 or 28 years, that the pathway in dispute partly lies through the ingkhol belonging to the defendant and partly through the ingkhol owned by him (the witness), and that about 3 of the pathway (obviously in width) runs through his ingkhol. He denied the suggestions, put to him by the plaintiffs counsel that the plaintiff had been plying a bullock cart over the pathway in dispute though he admitted at the same time that there was dispute between him and the plaintiffs mother-in-law "regarding plying of bullock cart in this path." Therefore, the controversy in 1953 before the Sub-Deputy Collector must have Centred round the point whether the plaintiff could take his bullock cart over the pathway. It had nothing to do with the user of the pathway by the plaintiff personally or with the dimensions of the pathway. It is for these reasons that during his examination-in-chief in the present suit this important witness of the defendant could not either deny that the width of the pathway is 8 or that the plaintiff is entitled personally to the user of the whole of that pathway. However, the fact remains that there was some dispute between the plaintiff and the witness in the year 1953 respecting the user of the pathway for taking bullock cart along it. 6. This brings us to the consideration of the question whether the litigation of 1953 robs user of the pathway by the plaintiff of the character of its being "peaceably." The expression "peaceably" used in Section 26 of the Limitation Act is not defined in the Act though it has been the subject of some judicial pronouncements. The prescriptive right of an easement, it is well settled, can be acquired only when the user is, inter alia nec vi that is to say, without violence. The word "peaceably" therefore, would imply that the dominant owner has neither been obliged to resort to physical force himself at any time during the period of enjoyment, nor had he been prevented by use of physical force by the servient owner in his enjoyment of such right. A Division Bench of the Madras High Court held in the case of Muthu Goudan v. Anantha Goudan, AIR 1916 Mad 1001 (2), that mere verbal disputes by a servient owner, which do not cause interruption or obstruction to the enjoyment of an easement by the dominant owner, do not prevent its enjoyment from being peaceable so as to bar the acquisition of a prescriptive title thereto. Sadasiva Aiyar, J., observed in that case that the expression "peaceable enjoyment" means that the dominant owner has neither been obliged to resort to physical force himself at any time to exercise his right within the 20 years expiring within two years of the suit, nor had he been prevented by the use of physical force by the servient owner in his enjoyment. Bakewell, J., observed in the same case that the words "peaceably" and "openly" indicate the manner in which the dominant owner must conduct himself in his use of enjoyment of the servient tenement. The conduct of the servient owner he added, is immaterial except so far as it goes to show the nature of the user by the dominant owner. The noise and clamour on the part of the servient owner, he stated further, only go to show that the user was not secret. These observations of the Madras High Court were cited with approval by the Lahore High Court in the case of Ram Sarup v. Abdul Haq, AIR 1931 Lah 395. Tek Chand, J. held in that case that a mere denial by the defendant of the plaintiffs alleged right and his unsuccessful attempt to have this right negatived in Courts of law do not affect the plaintiffs acquisition of easement. In that case the defendant Abdul Haq had instituted a suit against Prabhu Dial, father of plaintiff Ram Sarup, in the year 1916 for an injunction praying that seven doors and two parnalas of Prabhu Dial opening on his land should be closed. The suit of Abdul Haq was dismissed. A few years thereafter Abdul Haq constructed a wall obstructing the seven doors and 3 parnalas of Ram Sarup, and as a consequence the latter filed a suit against Abdul Haq for removal of that wall on the basis that he had acquired right of easement respecting the doors and the parnalas. Abdul Haq set up the defence that the enjoyment of easement by Ram Sarup and his father had not been peaceable because he had filed a suit in 1916 against Prabhu Dial claiming the closure of the doors and the parnalas. Repelling the contention, the High Court held that the unsuccessful attempt on the part of Abdul Haq in the year 1916 for closure of the doors and parnalas did not affect the plaintiffs acquisition of easement. Repelling the contention, the High Court held that the unsuccessful attempt on the part of Abdul Haq in the year 1916 for closure of the doors and parnalas did not affect the plaintiffs acquisition of easement. Reference may also usefully be made to the case of Kurvarbai v. Jamsedj, AIR 1919 Bom 94, wherein it was held that obstruction or opposition to the enjoyment of a right of easement must find expression in something done on the servient tenement itself and that mere protest on the part of the servient owner does not amount to interruption. 7. Shri Ibotombi Singh relied upon certain observations at page 214, Twelfth Edition, of Gale on Easement to indicate the exact scope of the expression "peaceable." However, it was held in the case of Arzan v. Rakhal Chunder, (1884) ILR 10 Cal 214, that the words "peaceably and openly" are not used in the English Prescription Act and that they had been introduced into the Indian Act for the very purpose of preventing easement rights being acquired by stealth or by a constantly contested user. Since the word "peaceably" does not find mention in the English Prescription Act, we cannot derive much help from the treatises on easements by English authors. It was held by the Lahore High Court in the case of Ram Sarup, AIR 1931 Lal 395 (Supra) that the English decisions are based on the legal fiction, which found favour with English Jurists for a long time, that in cases of easements acquired by prescriptions the law presumed a grant and its accidental loss due to lapse of time. In India, on the other hand, it was observed the right depends upon positive enactments and it is not necessary that any presumption of a supposed grant and its subsequent loss need be made. Hence, it may not be safe for Indian Courts to rely upon the observations made by English Jurists on matters relating to easement because of differences in the historical background of the law in the two countries. Moreover, the views of English Jurists cannot prevail against the interpretation placed upon the expression "peaceably" by the High Courts of Madras, Bombay and Lahore. 8. Moreover, the views of English Jurists cannot prevail against the interpretation placed upon the expression "peaceably" by the High Courts of Madras, Bombay and Lahore. 8. In context of the interpretation placed by High Courts in India on the expression "peaceable", I feel satisfied that the litigation of 1953 which ended against Leirenjao Singh did not amount to interruption in the enjoyment of the right of way by the present plaintiff over the land in dispute or placing that enjoyment in the category of non-peaceable. It can bear repetition to state that the only dispute in 1953 was whether the plaintiff could take his bullock cart over the pathway. It was not the contention of Leirenjao Singh in that case that the plaintiff had no right of personal user of the pathway or that the width of the pathway was less than 8 feet. In his statement made in the trial Court on 21-5-1964 Leirenjao Singh affirmed that the plaintiff had been using the pathway for the last 27 or 28 years. He did not state further that the width of that pathway was less than 8 feet. It follows from his statement that the user of the pathway by the plaintiff had lasted for more than 20 years by 1-12-1961 when he filed the suit culminating in the present appeal. The testimony of the plaintiff and his unattached witnesses residing in the close proximity of the pathway in dispute proves beyond doubt that the plaintiff and his father-in-law had been using that pathway for a period of 40 to 50 years without obstruction,openly and peaceably, and that the width of the pathway has never been less than 8. It is also proved from the statements of the plaintiffs witnesses that the latter has all along been taking his bullock cart over, that pathway. The statement of Leirenjao Singh (D. W. 2) that the plaintiff had never used the pathway for his bullock cart is belied by the statement dated 4-10-1962 made by him before the Sub-divisional Magistrate, Imphal West. Ext.A/5 is the copy of that statement and in the portion marked "X" this witness had affirmed: "Since the dispute the bullock cart is parking in the courtyard of 1st party. Before it the bullock cart used to be taken in the courtyard on the disputed path with the agreement of 2nd party by hand. Ext.A/5 is the copy of that statement and in the portion marked "X" this witness had affirmed: "Since the dispute the bullock cart is parking in the courtyard of 1st party. Before it the bullock cart used to be taken in the courtyard on the disputed path with the agreement of 2nd party by hand. The width of a bullock cart is 6 feet." I would, therefore, hold, in agreement with the Courts below, that the contention of the defendant that the enjoyment in the present case cannot be considered as peaceable upto within two years before the suit, as there was dispute respecting the user of the pathway in 1953 for bullock cart as proved by the document Ext. A/1, is without substance. It is proved from the evidence on record that in 1953 the protest was only verbal and that too respecting only the right of taking the bullock cart along the pathway. Such a protest does not make the enjoyment of the right by the plaintiff as non-peaceable 9. In view of the findings recorded above the appeal fails and is dismissed with costs. Appeal dismissed.