Judgment 1. This second appeal by the plaintiffs arises out of a suit for declaration of their title to and confirmation of possession or in the alternative for recovery of possession in respect of 1 khata 2 1/2 dhurs of land appertaining to plot No. 1193 of khata No. 49 in village Rampur, Police Station Sarlakhi, District Darbhanga, or for a declaration that the plaintiff had acquired a right of way over the aforesaid land. 2. Briefly stated the plaintiffs case is as follows:- It is said that the parties are descendants from the same common ancestor. In the year 1919, the plaintiffs purchased lands of Plot No. 1189 from one Mossamat Somani. This plot is situate immediately north of Plot No. 1193 of village Rampur in the district of Darbhanga. To the south of Plot No. 1193, there is a District Board road running east to west, over Plot No. 1226. Plot No. 1193 belongs to the defendants, Mossamat Somani, it is said, had exchanged 1 katha, 2 1/2 dhurs of land of Plot Nos. 1229, 1230 and 1231 with the defendants for an equal area thereof out of Plot No. 1193. This took place in the year 1919, as a result of which the plaintiffs, when, they purchased the land of Plot No. 1189 from Mossamat Somani, became entitled to and came into possession of 1 katha 2 1/2 dhurs of land of Plot No. 1193. The plaintiffs state that they used these lands partly as passage from their house up to the public road over Plot No. 1226 and partly as their Bari and a place to keep their cattle and for them Nads and Khutas. They, therefore, prayed for a declaration of their title to these lands and for possession. They also asked for permanent injunction against the defendants restraining them from interfering with their rights. By an amendment of the plaint, the plaintiffs further made an alternative claim to the effect that if it be found that the plaintiffs had no title or possession as a result thereof over the lands in question, the plaintiffs, having exercised a right of way over the lands since the year 1919, had acquired a right of easement by open and uninterrupted user for more than twenty years and a declaration to that effect was, therefore prayed for. 3. The defendants characterise the story of exchange as a concoction. 3. The defendants characterise the story of exchange as a concoction. They deny the alleged title and possession of the plaintiffs over any portion of Plot No. 1193. The plaintiffs case of user of right of way is also denied. It is said that there is an alternative passage toward the west of the plaintiffs house which runs north to south and meets the public road on Plot No. 1226 and the plaintiffs are said to have been using this passage in order to come to the public road. It is said that the plaintiffs have closed that passage and want to create a new route through Plot No. 1193. 4. Both the courts below have found against the plaintiffs with regard to the story of exchange set up by them as also on the question of possession of the lands which were said to be the subject-matter of exchange. The trial court, however, found that although the plaintiffs were not in possession of the lands as a result of the exchange, they had proved their alternative case of having exercised a right of way for the statutory period and in that view of the matter they were entitled to a decree in respect of their claim for easement. It decreed the suit in that respect and directed the removal of certain logs of wood which were alleged to have been kept by the defendants at the plot in question to block the passage. In appeal, however, the court below reversed the decree passed by the trial court. Hence this second appeal. 5. It appears from the judgement of the lower appellate court that it formulated two points for decision; first relating to the question of title or possession over Plot No. 1193 by virtue of the alleged exchange and second relating to the question of rights of passage. As stated earlier, on the first point the Additional Subordinate Judge who heard the appeal agreed with the trial court. With regard to the second one, the reason which led him to come to the conclusion contrary to that of the trial court is as follows:- . "The story of exchange has been found to be false. Consequently the story that any portion of Plot No. 1193 has been used as rasta, ipso facto becomes false..............". With regard to the second one, the reason which led him to come to the conclusion contrary to that of the trial court is as follows:- . "The story of exchange has been found to be false. Consequently the story that any portion of Plot No. 1193 has been used as rasta, ipso facto becomes false..............". He however, went on to examine whether the plaintiffs had ever used any portion of the plot as rasta. While doing so, he says "the facts necessary to make out a case of easement of necessity remained wanting" and "in the plaint neither any description was given nor any sketch map was appended to show the route of the alleged passage from Plot No. 1189 to Plot No. 1226 through Plot No. 1193. In a case of claim of easement of passage, it cannot be conceived that without giving any definite, direction of the passage, the plaintiffs can claim a relief. The plaintiffs cannot be granted a relief of passage so as to wander all over Plot No. 1193. As a matter of fact, this is what has happened in this suit". This is one circumstance which weighed with the learned Additional Subordinate Judge. The second is that there was an alternative passage available to the plaintiffs and the third, that in view of the admission of the plaintiffs, the story of any portion of Plot No. 1193 being used as a passage must be false because there are obstructions in between the house of the plaintiffs on Plot No. 1189 and the public road inasmuch as the bari of one Kashi Mahto appears to exist at the extremity of Plot No. 1193, which would not allow a bullock cart to pass through at the relevant place. 6. Learned Counsel for the appellants, in view of the concurrent findings of facts of the courts below with regard to the question of title and possession over the lands in question, as a result of exchange, has not challenged these findings. He has, however, urged that the lower appellate court was not justified in reversing the decree of the trial court in respect of the claim of the plaintiff of a right of easement. He has contended firstly that the court below has not at all considered the evidence of P. W. 4, the pleader-commissioner and his report (Ext. He has, however, urged that the lower appellate court was not justified in reversing the decree of the trial court in respect of the claim of the plaintiff of a right of easement. He has contended firstly that the court below has not at all considered the evidence of P. W. 4, the pleader-commissioner and his report (Ext. 3) and the evidence of P. W. 12, another pleader-commissioner and his report (Ext. 3/a), which prove the existence of passage on the land in question. He has next contended that while considering the point the court below has not considered the evidence of the plaintiffs witnesses for the purpose of finding out whether they proved the point relating to the right of way. Thirdly, it is urged, the court below has committed an error of record in reading the report (Ext. 3/a) of the pleader-commissioner (P. W. 12); Fourthly, it has not considered the question as to whether the obstruction put up in the shape of Tati in the bari of Kashi was a recent obstruction or not; Fifthly, the court below has not considered whether the alternative route was available to the plaintiffs ever since they construction their house in the year 1919. In respect of the last two points, it is also said, that the court below has not considered the reasoning given by the trial court for coming to the conclusion contrary to that of the appellate court. It has been lastly contended that the court below was wrong in drawing adverse inference against the plaintiffs for their failure to state the dimension or the exact route of the alleged passage. There appears to be substance in most of the contentions. 7. It is obvious from the judgment that the court below has not considered the evidence of the pleader-commissioner (P. W. 4) or his retort Exhibit 3. It may be mentioned that on a petition filed by the plaintiffs, he had been appointed to find out the features of the land in order that the application of the plaintiffs for an ad interim order of injunction could be properly disposed of. The report of the said commissioner was considered and the ad interim order of injunction was made absolute in preserve of both the parties. It appears that he was subsequently examined as P. W. 4. The report of the said commissioner was considered and the ad interim order of injunction was made absolute in preserve of both the parties. It appears that he was subsequently examined as P. W. 4. Learned Counsel for the respondents has pointed out that his report was made at a stage when proceeding was ex parte and for that reason it was of no value. The question, however, is different viz., whether the court below at all considered the evidence aforesaid. The question as to whether it should have placed reliance thereon is a matter on which I do not wish to express any opinion. That it was for the learned Judge to consider all the relevant evidence, cannot be disputed. It is said on behalf of the appellants that the evidence of the said Commissioner was important inasmuch as at that point of time when he had inspected the land, he had not found any obstruction. Be that as it may, there is no dispute that the evidence of the aforesaid pleader-commissioner is relevant to the question of the right of passage and for that reason in my view, it ought to have been considered. 8. With regard to the evidence of the second pleader-commissioner (P. W. 12) and his report (Ext. 3/a) learned counsel for the appellants has made a grievance that although the said Commissioner had found a passage to be existing on the land, his evidence to that effect has not been considered at all. Some parts of his report have been considered for the purpose of coming to the conclusion that there could not be existence of any passage. The court below has referred to the case map and the report (Ext. 3/a) and found out therefrom the physical feature of the land to show that the pleader-Commissioner had found the existence of a bari of Kashi Mahto which had a Tati obstructing the passage and it made it impossible for a bullock cart to pass. On this basis the court below said that there could not be any rasta. Learned Counsel has pointed out that assuming that a bullock-cart could not pass, upon the report of the pleader-commissioner, there was a rasta in existence through which at least pedestrians could pass and this aspect of the matter has not been considered by the court below. On this basis the court below said that there could not be any rasta. Learned Counsel has pointed out that assuming that a bullock-cart could not pass, upon the report of the pleader-commissioner, there was a rasta in existence through which at least pedestrians could pass and this aspect of the matter has not been considered by the court below. Reading the discussion on the point and the judgment of the court below I do find that the court below has not applied its mind to the question as to whether the pleader-commissioners evidence and the report support the case of the plaintiff and whether it could be relied upon. Again it was the duty of the Court below to do it. 9. There is a slight error which is said to be an error of record committed by the lower appellate court in the reading of the Commissioners report (Ext. 3/a). The court below in paragraph 10 of its judgment said that "on the western end of Plot No. 1193 there is a dalan facing east. It occupied an area measuring about 1 katha 8 1/2 dhurs". Actually in the report it is said to occupy only 8 1/2 dhurs. This is an obvious error of record. The point has some importance because the lower appellate court has given the reason that the total area of Plot No. 1193 is only 1 katha 17 1/2 dhurs and it appears that the well, dalan, the Sahan, the khop and the khunta occupy so much of the area aforesaid that there could hardly be left 1 katha 2 1/2 dhurs, as claimed by the plaintiffs, to be used as passage. The court below has also relied on the statement of P. W. 15 in respect of certain areas being occupied in the manner aforesaid. The crux of the question was whether the plaintiffs had exercised a right of way on the land in question. Surely they could not have exercised such a right through the house or a dalan of a particular person. Whether or not they exercised such a right of passage through the open land was a matter for consideration of the court of appeal below. 10. There is substance in the contention that the oral evidence of the plaintiffs has not been considered in relation to the point of right of passage. Whether or not they exercised such a right of passage through the open land was a matter for consideration of the court of appeal below. 10. There is substance in the contention that the oral evidence of the plaintiffs has not been considered in relation to the point of right of passage. As I have quoted earlier, the lower appellate court seemed to think that since the story of exchange was found false, the claim of the right of user ipso facto failed. Perhaps in that view of the matter, it did not consider the evidence this from point of view while considering the second point at issue, namely the question of right of passage. 11. It is also true that the court below did not consider the reasonings which led the trial court to come to the conclusion that there was no alternative rasta available to the plaintiffs since the year 1919 up to the year 1963 when they purchased some portions of Plot No. 1187 which is contiguous west of Plot No. 1189 where the plaintiffs house had been constructed and to the west of Plot No. 1187 lies the alternative route, which comes to the south and joins the public road on Plot No. 1226. The court below has also not considered the reason given by the trial court. namely, that the Tati structure put up by Kashi was, upon the evidence, a recent construction and, therefore, of no avail to show that the plaintiffs had not been exercising the right of passage from 1919. 12. Learned Counsel for the appellants has placed reliance on two decisions in the cases of Ramhary Pal V/s. Nidhi Mahanty, 148 Ind Cas 431 = (AIR 1934 Pat 420) and Lakhi Kanto Roy V/s. Raj Chandra Saha, 46 Ind Cas 374 = (AIR 1919 Cal 976). The first case is of this very Court in which Fazl Ali. J. (as he then was) relied on a passage from Katiars Law of Easement borrowed from the well-known treatise on the same subject by Goddard to the following effect: "When the two termini are known, the right to the way does not fall merely for want of a defined track between them, and if the owner of the servient tenement does not point out the line of such way, the dominant owner must take the nearest way he can. If the owner of the servient tenement wishes to confine him to a particular track, he must set out a reasonable way, and then the person is not entitled to go out of the way merely because the way is rough, and there are ruts in it and so forth." In the other case, a Bench of the Calcutta High Court also held that if the plaintiff in a suit for a declaration of a right of way establishes the terminal from which and to which the way runs, is entitled to have his right of way declared and the right would be enjoyed in the way that the owners of the servient tenement point out as being the track over which the way should be enjoyed and if no track is pointed out, the plaintiff would be entitled to enjoy the right by nearest route. In view of the law laid down in these two cases, the lower appellate court was not correct in saying that the plaintiffs could not succeed in respect of their right of easement for the reason that they had not stated the right which was followed by the persons exercising the right of user. 13 In view of the aforesaid non-consideration of the evidence, error of record and the improper approach to the case in respect of the law governing such cases, the judgment of the lower appellate court cannot be sustained in so far as it reverses the decree of the trial court relating to the claim of the plaintiffs of a right of easement. It is, accordingly, set aside to that extent. The case is remanded to the court below to consider the entire evidence on record and come to a conclusion thereafter in respect of the plaintiffs claim of easement. 14. In the result, the appeal is allowed in part as indicated above. In the circumstances of the case, there will be no order as to costs.