D. M. PATNAIK, J. ( 1 ) THE sole point for decision in this appeal is, whether the respondent No. 1 has acquired a prescriptive right of easement of way over the disputed plots, morefully described in the schedules to the plaint as Ka, Kha, Ga and Gha, the same being the front courtyard (Danda) lying to the East of the respective residential houses of the plaintiff-appellants. The sole defendant claims that he has been using the disputed land as a passage from his house to the village road on the south. It is the concurrent finding of both the Courts below that the plaintiffs have title to the disputed lands in question. But the defendant having acquired easementary right of using the disputed lands as path, the plaintiffs' suit has been dismissed by the Courts below and therefore, the plaintiffs are in appeal before this Court. ( 2 ) MR. P. Kar, learned counsel for the appellants strenuously urged that the Courts below committed gross error in not considering the absence of materials with regard to user of the land as of right. It was further submitted that the defendant having not pleaded and proved such user as of right the Courts below should not have given a finding to that effect in his favour. Mr. Kar has relied on certain decisions which will be discussed in due course. Mr. S. Mishra (1), learned counsel for the respondents, on the other hand, supported the judgments of the Courts below. The rival contentions need examination. ( 3 ) THOUGH it is concurrently found by both the Courts below that the defendant has been using the disputed lands as a path, yet it has to be examined whether such user was as of right as has been held by the Courts below. The findings of the Courts below that the defendants have been using the land openly without interruption for more than twenty years should not be disturbed having been based on duly considered evidence on record and the admission of the plaintiffs in their evidence. But as rightly submitted by Mr. Kar, the essential element of acquiring the prescriptive right of easement is that the user must be as of right. But as rightly submitted by Mr. Kar, the essential element of acquiring the prescriptive right of easement is that the user must be as of right. The learned lower appellate Court has not discussed whether the defendants have been using the disputed lands as of right though it gave a finding of user only basing on the evidence that the same has been used openly without interruption and for more than the statutory period. It would be apposite at this stage to examine the significance of the evidence of the defendant who has been examined as D. W. 1. ( 4 ) IN para 2 of his examination, the defendant stated that they use to go to their field, village and public road through the suit land from their respective houses. He also stated that the land is used as a path way for goats and cattle. Marriage processions also used to pass through the suit land when occasions arise. Dead bodies are also being carried for cremation through the disputed lands. He admitted that the houses of the plaintiffs situate to the west of the suit lands. In para 7 he admitted that his agnates namely Maguni and Bhaskar etc. also pass through the suit land and also plaintiffs 1 to 3 use the disputed lands whenever they go out of their houses situate on plot No. 686. ( 5 ) IT is thus clear from the evidence of D. W. 1 that such user is not confined to the exclusive user by the defendant, but it is also used by all and sundry and also by the plaintiffs. It is proved that even the villagers use the suit lands for all purposes while coming to the houses of the plaintiffs or that of the defendant. In such a situation it would not be correct to hold that the defendant has been using the disputed land as of right. Mere uninterrupted and open enjoyment for more than the statutory period of 20 years will not by itself raise a presumption that the land is used as a path as of right. In such a situation it would not be correct to hold that the defendant has been using the disputed land as of right. Mere uninterrupted and open enjoyment for more than the statutory period of 20 years will not by itself raise a presumption that the land is used as a path as of right. " ( 6 ) QUOTING the relevant portion from the case of Khoda Buksh v. Tajuddin, reported in (1903) 8 Cal WN 359, a Bench of the Bombay High Court in the case of Ramachander Trimbak Joshi v. Hari Martand Joshi, reported in AIR 1929 Bom 144, held that before the Court finds the use of the land as of right it should consider the nature and character of the servant land, friendship and relationship between the servant and dominant owners and the circumstances under which user has taken place. ( 7 ) IT has been very appropriately held by the Bench in the case of Smt. Balley v. Rama Sankar Lal, reported in AIR 1975 All 461 that it is a common feature in Indian villages that people generally pass over the 'ridges' in between the two cultivated lands and by habit no agriculturist ever objects to it. It is held in that case that the owner of the land using the ridges between the adjoining fields of his neighbour for reaching the road cannot be presumed to have used it as of right, rather user can be presumed only to be permissive and no right of easement can be claimed on the basis of such user. The same is the case at hand, since the user is not exclusive to the defendant for the beneficial use of his tenament alone and the disputed lands are also used by other villagers including the plaintiffs. ( 8 ) THE above view of the Allahabad High Court was drawn from the decision in the case of Tukaram Rajaram Suple v. Sonba Chindhu Mali, reported in AIR 1959 Bom 63 , where the Court held that whether the user is of right is always a question of fact and the propriety of the rule that presumption from user should be that it is as of right, must depend upon the circumstances not only of each particular case but also of each particular country regard being had to the habits of the people of the country. The Court proceeded to observe that it would not be safe straight way to draw a presumption merely because the plaintiffs lead evidence to prove uninterrupted user for more than 20 years. It is for the Court to consider whether the presumption can reasonably be drawn looking to the circumstances of each case, such as nature and character of the serviant tenament and relationship of the parties and the circumstances and the manner in which the user has taken place. ( 9 ) MR. Kar has appropriately drawn my attention to para 5 of the judgment of this Court in the case of Khandeswar Champati v. Gokulananda Jena, reported in AIR 1965 Ori 91 . In the above case plaintiffs representing the villagers at large claimed the customary right of way. The Court refused such relief holding that such a right for the public at large could be acquired only by dedications. It further held that the right so claimed was not exclusive to them. ( 10 ) IT would be apposite at this stage to distinguish the above proposition from the one in the case of Ramesh Chandra Panda v. Lambodar Panda, reported in AIR 1960 Ori 95 , where the Division Bench of this Court held that where it is found that the plaintiff is using the disputed pathway openly and peacefully to the knowledge of the defendant without any interruption and for about 20 years, the presumption would be that he had been using the same as of right. There cannot be any quarrel over the proposition, but it would depend on the facts and circumstances of the case. In that case, the disputed pathway was claimed to have been used by the plaintiffs and their womanfolk and the cattle. In the present case, the defendant admitted that the disputed land is being used even by other persons of the village and for several other purposes. In the case referred to, the defendants completely denied the user as well as the existence of the path. In the present case, the plaintiffs admitted the user in their evidence and they did not deny existence of such open space which is their front courtyard. In the case referred to, the defendants completely denied the user as well as the existence of the path. In the present case, the plaintiffs admitted the user in their evidence and they did not deny existence of such open space which is their front courtyard. The situation of the disputed land in the present case is peculiar in the sense that it is the front courtyard of the plaintiffs and it can be presumed that the plaintiffs did not object of such user of the defendants since others also use the land on the same way as the defendants. For this distinguishing feature, no presumption can be drawn in favour of user as of right by the defendant. ( 11 ) IN the instant case, taking into account the situation of the respective houses of the parties, the village road and other relative positions and further keeping in view the proved fact that the disputed lands are the front courtyard of the plaintiffs and the same is used by other persons of the village as well as both the parties, there can be no presumption that the land is usedas of right. The defendant claims for having acquired a prescriptive right of easement of way on the disputed land for the beneficial enjoyment of his own tenament and in order to go to the public road using the disputed lands. The evidence is clear that such user is not exclusive to him. It is also used by some other persons of the village including the parties. If we keep in view the principles decided by this Court in the case of Khandeswar Champati, ( AIR 1965 Ori 91 ) (supra), in the present case neither the right is claimed as a customary right by some of the inhabitants of the particular village nor such a right is claimed by the public at large which can be acquired only by dedication. In the peculiar facts and circumstances of the case, it would not be proper to hold that the defendant's user of the disputed land along with others in the manner admitted by him can be said to be the user of the defendant as of right. In the peculiar facts and circumstances of the case, it would not be proper to hold that the defendant's user of the disputed land along with others in the manner admitted by him can be said to be the user of the defendant as of right. Rather, it makes out a case of permissive possession so far as it relates to the case of the defendant alone and more appropriately an implied permission since there is no direct proof of any such permission. ( 12 ) FOR the reasons stated above, the findings of the Courts below that the defendants have acquired easementary right has to be set aside. However, I find no reason to allow the plaintiffs' suit for mere injunction since there is no allegation that the defendant obstructed or prevented the plaintiffs from using the disputed land. The prayer for injunction is rejected. So far as prayer for the plaintiffs to correct the record of rights is concerned, since both the Courts below have found title with the plaintiffs and it is found by this Court that the defendant has acquired no right of way, the private land of the plaintiffs as found in this case should not be recorded as path. In case that has been so recorded, this should be corrected accordingly. ( 13 ) IN the result, the appeal is allowed in part. There will be no order as to costs. Appeal partly allowed. .