JUDGMENT Kamlesh Sharing, J—Admittedly, the appellant/plaintiff and proforma respondents/defendants are owners in possession of the land comprised in Khasra No. 1232 situated in Mauza Arhal, Tehsil Rohru, District Shimla, which was purchased on their name by their father 23 years before the filing of the suit, out of which the present appeal has arisen. The suit was filed by the appellant/plaintiff against late Shri Chiba and respondent/ defendant No 1 for permanent prohibitory injunction restraining them from obstructing or hindering the path described in the plaint claiming that he alongwith proforma respondents/defendants has been using it as of right since they had purchased their land but on 30th April, 1981 the path was obstructed by respondents/defendants by pelting stones on them. During the pendency of the appeal in this Court Shri Chiba has died and his legal representatives have been brought on record as respondents/ defendants 1 (a), I (c) to I (f). The path in dispute, as stated in the plaint, runs through the land comprised in Khasra Nos. 618/127, 125 and 510/293/127 situated in Chak Gangtoli belonging to the respondents/ defendants. 2. The respondents/defendants had resisted the suit and denied that there existed any path which the appellant/plaintiff and proforma respondents/defendants had been using, as alleged by them According to them, on 30th April, 1981, the appellant/plaintiff and proforma respondents/ defendants wanted to lead a new path through their land, to which they objected The matter was also reported to the police and on spot inspection it was found that there was no path from their land. 3. The trial Court rejected the defence of the respondents/ defendants and decreed the suit holding that there exists the path in dispute, which the appellant/plaintiff and proforma defendants/respondents had been using for the last many years. It was also found by the trial Court that the respondents/defendants had been interfering with the right of the appellant/plaintiff and proforma respondents/defendants by obstructing the path in dispute. It was also found by the trial Court that the respondents/defendants had been interfering with the right of the appellant/plaintiff and proforma respondents/defendants by obstructing the path in dispute. The Additional District Judge set aside the findings of the trial Court on the grounds, inter alia, that neither there are pleadings nor proof that the appellant/plaintiff had acquired easementary rights by prescription over the path in dispute, According to him, simple use of the path in dispute for the last 23 years without any objection by the respondents/defendants does not establish that the path in dispute has been used as of right On the scrutiny of oral and documentary evidence produced on record, the Additional District Judge has come to the conclusion that it is not proved by the appellant/plaintiff that he or his predecessor had been using the path in dispute without interruption for more than 20 years ending within two years next before the institution of the suit. He has rejected oral evidence produced by the appellant/plaintiff on the ground that the witnesses produced by the appellant/plaintiff are either chance witnesses or interested witnesses, 4. This Court has heard the learned Counsel for the parties and gone through the record. 5. Mr. Bhupender Gupta, appearing for the plaintiff, has urged that the findings of fact arrived at by the Additional District Judge are vitiated on the substantial question of law that the Additional District Judge has misread and mis-interpreted the pleadings and the evidence on record and has also applied wrong tests for coming to the conclusion that the ingredients of section 15 of the Easements Act (hereinafter called the Act) have neither been pleaded nor proved by the appellant/plaintiff. For making this submission he has relied upon Budhwanti and another v Gulab Chand Prasad, AJR 1987 SC 1484 ; Dilbagrai Punjabi v. Sharad Chandra AIR 1988 SC 18-8 and Jagdish Singh v. Natthu Singh, AJR 1992 SC 1604. In these judgments the Apex Court of the country has held that findings of fact are vitiated by non-consideration of relevant and material evidence or by applying essentially wrong approach and wrong tests or based on conjectures and in such cases the High Court has the jurisdiction to interfere in regular second appeal under section 100, C. P. C. 6. In these judgments the Apex Court of the country has held that findings of fact are vitiated by non-consideration of relevant and material evidence or by applying essentially wrong approach and wrong tests or based on conjectures and in such cases the High Court has the jurisdiction to interfere in regular second appeal under section 100, C. P. C. 6. This Court finds substance in this submission as the findings of the Additional District Judge in Para 9 of the judgment that ingredients of easement by prescription are not pleaded, are factually incorrect. It is not in dispute that the essential ingredients of easement by prescription as envisaged under section i 5 of the Act are that the enjoyment of this right should be open, peaceful, uninterrupted and as of right for a period of 20 years ending within two years next before the institution of the suit. These ingredients are contained in Para 2 of the plaint, which is as under: — "2........................This path was used by the plain tiffs father and now by the plaintiff and proforma defendants for coming and going from and to their above land and house and also for taking luggage and other necessities of life on Mule backs and by other means to and from their above house as of right for the last 23 years period The defendants No. J and 2 never objected the use of the said path through their land mentioned above." 7. It is correct that the words openly, peaceably and without interruption have not been used in the plaint but the words as of right for the last 23 years period* and *the defendants never objected the use of the path, purports to open, peaceable and uninterrupted use only. It is correct that the words openly, peaceably and without interruption have not been used in the plaint but the words as of right for the last 23 years period* and *the defendants never objected the use of the path, purports to open, peaceable and uninterrupted use only. Similarly, in his deposition in the Court, the appellant/plaintiff PW 1 has not uttered the words as of right but his statement that he and proforma defendants/ respondents had been using the path in dispute since they have purchased the land to which the defendants/respondents never objected, means that they have been using the path in dispute continuously in assertion of their right which was impliedly granted to them by the respondents/defendants by not raising any objection The inference drawn by the Additional District Judge from the statement of appellant/plaintiff that the appelant/ plaintiff was not using the path as of right is not correct For drawing this inference, the Additional District Judge has relied upon judgments in Phul Chand Narayandas and another v. Murarilal Nathulal, AIR /^( Madhya Bharat 89 and Sajjad AH v. Shahid Ali and another, AIR 195) All 316 These judgments lay down what are the ingredients to prove rig at of easement of way, one of them is that it must be enjoyed *as of right for the prescribed period and also that long user of the right raises a presumption in favour of the claimant that enjoyment has been as of right. 8 It is also correct that mere user of right of way by passing or repassing may not as such be conclusive evidence on the question whether the user has been of right or not, but on the other hand the persons who exercise the right need not openly proclaim that they are doing so because they have a right to do so, The true meaning of the expression as of right is that the enjoyment of the right should not be secret or by stealth or by sufferance or the leave and licence of another person. Therefore, the animus of the person exercising the right, which is a question of fact, is required to be determined from the circumstances proved on record of each case. Therefore, the animus of the person exercising the right, which is a question of fact, is required to be determined from the circumstances proved on record of each case. If positive evidence to prove this fact is not available, the Court is within its rights to draw a presumption from long continuous user of a right that such user which was open, peaceable and unobstructed must be in conscious exercise of the right The presumption is further fortified if the claimant does not have any licence or permission express or implied from the servient tenement to enjoy the right. (Please see : M. Ratanchand Chordia and others v Kasim Khaleeli, AIR. 1964 Mad 209 and Gayadhar Nayak and others v. Bhagahan Rout and others, AIR 1963 Orissa 155. 9 Applying these principles to the facts of the present case, it is admitted that the appellant/plaintiff and proforma respondents/defendants had purchased the land in March, 1958 and from the preponderance of evidence on record it is established that since then they have been continuously using the path in dispute which raises a presumption that their user which was open peaceable and unobstructed was in the conscious exercise of their right to use that path The absence of any objection to their such user by the respondents/defendants from March, 19^8 till 30th April, 1V81, which period is more than twenty years, further strengthens the presumption and inevitable conclusion is that the appellant/plaintiff and proforma respondents/defendants had acquired the right to use the path in dispute by prescription. 10. From the admission of the appellant/plaintiff that the house on the purchased land was constructed in the year 1960-62, the Additional District Judge was not right in drawing inference that the appellant/ plaintiff and proforma respondents/defendants or earlier their father had not been passing through the land of the respondents/defendants prior to the construction of the house. From the Jamabandi for the year 1977-78 Ext. P-4 on the record, it is clear that the area of the land purchased on the name of the appellant/plaintiff and proforma respondents/defendants by their father in March, 1958 is 10 bighas and 6 biswas and its nature is Kahali Abal from which it is proved that this land was being cultivated by the appellant/plaintiff and proforma respondents/defendants and earlier by their father since they purchased it. therefore, for going to their land they must be passing or repassing through the path in dispute. 11. The defence of the respondents/defendants that the path in dispute does not exist, has not been accepted by the Additional District Judge, but according to him, it had not been used by the appellant/plaintiff and proforma respondents/defendants as of right for the statutory period prescribed under section 15 of the Act- This Court finds that there is ample evidence on record to prove that the path in dispute did exist and it has been used by public at large To prove this, the most important and material evidence on record is Ext. Pi, which has not been considered by the Additional District Judge. It not only proves the existence and use of the path in dispute but also that the respondents/defendant have started obstructing it. This document Ext. P-f is copy of judgment of Gram/Nyaya Panchayat, Aral, Tehsil Rohru, District Shimla whereby respondent/defendant No. 2 Khindu Ram was held guilty of offence under section 2K3, i P- C and sentenced to pay a fine of Rs 75 for obstructing an old path which bad been in use of the general public and also for plying cattle and mules for going towards Rohru by constructing walls thereon Respondent/defendant No 2 Khindu Ram DW 1 in his cross examination has categorically admitted that the complaint filed by Ram Bahadur Gorkha was in respect of the path in dispute and he was fined Rs. 75 by the Gram Panchayat for obstructing it Though this judgment was given by the Gram Panchayat during the pendency of the suit, yet admittedly the respondents/defendants have accepted this decision and not challenged it in courts, which shows that they do not deny the facts stated therein that the path in dispute is in existence and has been in use of the general public since long. Had the Additional District Judge considered this document Ext. Had the Additional District Judge considered this document Ext. P-l, he would not have held that the land through which path in dispute passes, had been brought under cultivation about three years prior to the institution of the suit, therefore, the appellant/plaintiff and proforma respondents/defendants were prevented from using the path in dispute, which proves that they were not passing through the path in dispute within two years of the institution of the suit and their claim was barred under section 15 of the Act. Besides proving open, peaceable, uninterrupted and continuous use for more than 20 years, the appellant/ plaintiff has also established on record that the obstruction was caused within two years before the institution of the suit on 23rd May, I98J as such the ingredients that they have acquired right of easement of way by prescription over the path in dispute, as laid down in section 15 of the Act, have been established. 12. The relevant portion of section 15 of the Act is: — "..........,„... where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and the use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested." 13. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested." 13. While assessing the evidence produced by the appellant/plaintiff to hold that the appellant/plaintiff has not proved the user of the path in dispute for the statutory period, the Additional District Judge has applied wrong approach that all the witnesses must prove beyond reasonable doubt that the path in dispute was used by the appellant/plaintiff and others for more than twenty years The witnesses pertained to different periods during which they witnessed the use of the path in dispute by the appellant/plaintiff and others and preponderance of their evidence is that the use was during the period when the land was purchased ; the house was constructed thereon and thereafter till 23rd May, 1981, when obstruction was created, which comes to more than statutory period of twenty years The Additional District Judge is also not right in rejecting the statements of PW 2 Putlu, PW 4 Rikhi Ram, PW 5 Narain Dass and PW 6 Man Dass on the ground that they were chance witnesses or not disinterested witnesses because PW 2 Putlu had litigation with the respondents/defendants and other witnesses do not belong to the village where the path in dispute exists and they have deposed only in respect of use of path in dispute for carrying building material at some point of time From the fact the land was purchased in March, 1958, though the house thereon was constructed in the >ear 1960-62 and totality of evidence on record in respect of long user of the path in dispute the only conclusion which can be drawn, is that the appellant/plaintiff and proforma respondents/defendants had been using the path in dispute for more than statutory period of twenty years openly, peaceably, continuously, without interruption and as of right, therefore, they have acquired the easementary right of way over the path in dispute by prescription. 14. The result of above discussion is that the appeal is accepted, the decree and judgment dated 31st March, i987 of the Additional District Judge is set aside and the judgment and decree dated 30th May, 1985 of the trial Court is affirmed. No order as to costs. Appeal allowed.-