G. N. SABHAHIT, J. ( 1 ) THIS appeal by original defendant-2 is directed against the judgment and decree dated 13-6-1974 passed by the learned Civil Judge, Dharwad, in R. A. No. 170/70 on his file dismissing the appeal and confirming the judgment and decree passed by the Principal Munsiff, Dharwad on 23-10-1970 in O. S. No. 153/68 on his file decreeing the suit of the plaintiffs as prayed for. ( 2 ) PLAINTIFFS 1 to 8 are the permanent residents of Shivalli village in dharwad District having their houses in chikmath lane of Shivalli village. The original defendant is the father of the second defendant. They are members of a joint family. ( 3 ) ACCORDING to plaintiffs, 'a' and 'b' properties shown in the plaint sketch are open sites. The suit way shown as 'cd' is the connecting link to the main road for the plaintiffs and the members of their family and the persons residing in that area. Since the defendants started obstructing the way they instituted the suit for declaration that they have the right of way by custom as also by prescription and as an easement of necessity. The suit was resisted by the defendants. According to them, the plaintiffs had no such right. The suit was not maintainable. The trial Court framed the following issues as arising from the pleadings. 1. Do the plaintiffs prove that they and their ancestors have used the suit way marked in'red at 'cd' in plaint sketch openly, peacefully and without any interruption from time immemorial and have acquired a right of way by prescription on the said portion ? 2. Do the plaintiffs further prove that user of this way is an absolute necessity for them ? 3. Do the defendants prove that till recently the plaintiffs had access to the roads shown as southern-western boundaries of the plaint sketch by another way and not through the disputed portion ? 4. Whether defendants are entitled to compensatory costs ? 5. Whether the suit as framed is not maintainable ? 6. To what relief?the trial Court appreciating the evidence on record answered issue numbers 1 and 2 in the affirmative. It found issue no. 3 in the negative as also issue Mo. 4. Whether defendants are entitled to compensatory costs ? 5. Whether the suit as framed is not maintainable ? 6. To what relief?the trial Court appreciating the evidence on record answered issue numbers 1 and 2 in the affirmative. It found issue no. 3 in the negative as also issue Mo. 5 and on issue No. 4 the Court held that the suit was maintainable and in that view the trial Court decreed the suit of the plaintiffs as prayed for declaring that the plaintiffs have acquired aright of way over 'cd' by prescription and restraining defendant 2 by a peimanent injunction not to obstruct the plaintiffs in their peaceful use of 'cd' road in property 'b'. Aggrieved by the said judgment and decree defendant-2 went up in appeal before the Civil Judge, Dharwad, in R A. No. 170/70. The learned Civil Judge raised the following points as arising for his consideration : 1. Whether the plaintiffs-respondents have acquired an easementary right by way of prescription over the suit 'b' property for using 'cd' way therein shown in the suit sketch ? 2. Whether the plaintiffs-respondents are using the, CD way by way of easement of necessity ? 3. Whether the suit is not maitainable? 4 ). What order ? the learned Civil Judge re-assessing the evidence on record answered points nos. 1 and 2 in the affirmative. Under point No. 3 he held that the suit was maintainable and in that view he dismissed the appeal of the original second defendant confirming the judgment and decree of the trial Court. In this context it may be mentioned here that the first defendant died during pendency of the suit and the second defendant continued the proceeding as he was the legal heir of the first defendant. ( 4 ) AGGRIEVED by the judgment and decree of the appellate Court. the second defendant has come up in second appeal before this Court. ( 5 ) THE learned Counsel Shri Gunjal appearing for the appellants raised a preliminary objection that the suit was not maintainable as the suit was instituted by different persons and as such they could not seek remedy by way of right of way by prescription; if at all they had to claim the way by custom or by grant. ( 5 ) THE learned Counsel Shri Gunjal appearing for the appellants raised a preliminary objection that the suit was not maintainable as the suit was instituted by different persons and as such they could not seek remedy by way of right of way by prescription; if at all they had to claim the way by custom or by grant. So, he submitted that the Courts below were in error in giving relief on the basis of easement of necessity or easement acquired by prescription. As against that the learned Advocate appearing for the respondents generally argued supporting the judgment and decree of the first appellate court. ( 6 ) THE point, therefore, that arises for my consideration is whether the plaintiffs in the present suit could acquire right of way by way of prescription as also by way of easement of necessity. ( 7 ) THE learned advocate for the appellant relied upon a decision of the Orissa high Court in the case of Harihar ram v. Beda Ram (1), wherein it is clearly laid down thus : "the right of way claimed in the instant case is on behalf of the villagers of Gureipaii who arc certain portions of the public. Such rights of way commonly have their origin in custom. There is no other legal way to claim a right of passage by certain portions of the public like the villagers of Gureipaii. The different kinds of rights of way which are available to be acquired and the manner of such acquisitions have been enumerated in judicial decisions. I will extract one passage from the case of Pran Nath Kundu v. Emperor, air 1930 Cal. 286, which runs as follows :"in India just as much as in england there are three distinct rights of way. First there are private rights in the strict sense of the term vested in particular individuals or owners of particular tenements and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons; certain portions of the public such as the freemen of the city, tenants of a manor or the inhabitants of a parish village. Such rights commonly have their origin in custom. Secondly, there are rights belonging to certain classes of persons; certain portions of the public such as the freemen of the city, tenants of a manor or the inhabitants of a parish village. Such rights commonly have their origin in custom. Thirdly, (here are public rights in the full sense of the term which exist for the benefit of all the King's subjects and the source of these is ordinarily dedication. Thus, it becomes clear that Jaw is settled that when a particular section of the public claim a light of way, they can either claim it as under custom or plead it as a public way and they cannot claim it as an easement acquired by prescription or by necessity. The same proposition is laid down by the High Court of Patna in the case of brij Bhukan Kalwar v. S. D. O. Sivan (2), (Special Bench ). Therein it is specifically pointed out that the right of easement is a right for a man in respect of his tenement to take some profit out of the tenement of another man. The case-law on the point is reviewed in the decision. ( 8 ) KATIAR on Easements and Licences 1975, 8th Edn. at page 412 under para 96 has observed that a private right of way is a right to utilise the servient tenement as a means of access to. or egress from, the dominant tenement for the beneficial enjoyment of the tenement, that is, for some purpose connected with the enjoyment of the dominant tenement, according to the nature of that tenement. Speaking about user in common with the public in para 105 he observes : "the mere user of a way in common with the general public cannot establish an easement of way". Thus it is obvious that a section of the public cannot claim right of way by way of prescription or by way of absolute necessity. The approach of the Courts below therefore, in my considered view, is not legal and correct ( 9 ) THE learned advocate appearing for the respondents, however invited my attention to para 3 of the plaint wherein it is averred 'the ancestors of the plaintiffs used the suit way openly, peacefully without any interruption from time immemorial', which indicates that they are claiming the right of way by custom. Hence, he submitted that the trial Court ought to have raised an issue on the aspect whether the plaintiffs proved the alleged right of way over 'cd' by custom" as alleged in para 3 of the plaint. There is no such issue raised by the trial Court. Hence, the plaintiffs are prejudiced obviously in proving the custom which they have specifically averred in the plaint. The learned counsel for the appellant had no objection to raise the issue and to remand the case. ( 10 ) IN the result, therefore, the ap. pellant is entitled to succeed. ( 11 ) THE appeal is allowed, The judgments and decrees of the Courts below are set aride and the trial Court is directed to raise a specific issue, "whether the plaintiffs prove the alleged right of way over 'cd' by custom" and then delete the issue regarding easement by prescription and necessity. The trial Court is further directed to give opportunity to parties to adduce additional evidence if they so desire on the new issue raised and then dispose of the suit in accordance with law. Accordingly the suit is remanded back to the trial Court with the above observations and the parties are directed to be present before the trial Court on 16-2-1981 to take further instructions, No costs. --- *** --- .