Judgment :- P.R. Raman, J. Plaintiffs are the appellants. They are kudikidappukars under the defendant, who filed an application before the Land Tribunal, Thalassery as O. A. 596 of 1970. They were issued with a purchase certificate as evidenced by Ext. A2 dated 27.12.1973. As per Ext. P2, they are entitled to 10 cents of land as kudikidappu. The suit was instituted by them claiming a right of pathway to their kudikidappu through the property of the defendant. 2. On the western side of the appellants' kudikidappu there is a pathway and it was specifically pleaded in the plaint that the plaintiffs' predecessors in interest were using this pathway, namely, plaint B schedule continuously and uninterruptedly for the last 50 years as of right. Plaint A schedule property originally belonged to the grand mother of the defendant. Raman, the father of the plaintiffs was residing in a but in plaint A schedule property as a Kudikidappukaran with his family. It was then that Act 35/69 conferred certain benefits and Raman applied to the Land Tribunal as aforesaid. 3. After the death of Raman, plaintiffs are in possession of plaint A schedule property. The defendant constructed a new house on the southern side of plaint A schedule property on 22.6.1993. The defendant along with his men demolished the steps from the western road to plaint B schedule pathway so as to prevent the usage of the same. Defendant also tilled plaint B schedule pathway and planted tapioca sapplings. Plaintiffs claim that they have every right to use plaint B schedule pathway. It was on these lines that the suit was instituted for a mandatory injunction directing the defendant to convert plaint B schedule pathway to its original position and for a perpetual injunction restraining the defendant from interferring with the peaceful enjoyment of the property. 4. Defendant filed a written statement contending as follows: The fact that Raman, the father of the plaintiffs was a tenant under them and that he was residing in the but situated in plaint A schedulers admitted. The fact of purchase of kudikidappu right in 1973 is also not disputed. Accordingly, as per the order of the Land Tribunal, ten cents including the but and well on the eastern side of the property was given to him as. kudikidappu right. The fact of purchase of kudikidappu right in 1973 is also not disputed. Accordingly, as per the order of the Land Tribunal, ten cents including the but and well on the eastern side of the property was given to him as. kudikidappu right. There is a lane on the eastern side of the property and this was being used by Raman and the residents of the house to reach the road in the south. In 1977 the original but collapsed and a new house was constructed in plaint A schedule property. In 1992, the defendant also constructed a house on the south-west of the property and he shifted his new residence to that building. The original pathway from the property was from its north portion and the same was being used by the plaintiffs occasionally. The said pathway was occupying the entire length of the defendant's property on the western side. New steps and a pathway were constructed by the defendant to his house from the western side and the old pathway occupying the entire length of the defendant's property on the west was blocked. Then the plaintiffs trespassed into the property of the defendant and formed a way with steps from the road and the footpath leading to the north-west corner of their property. Plaintiffs have no right over the alleged plaint B schedule pathway. Up to 1973 till the said Raman obtained kudikidappu right, the plaintiffs were tenants of the defendants. On these lines, the defendant prayed for dismissal of the suit. 5. The trial court, after formulating the issues to be considered and on consideration of the evidence on record, found that the plaintiffs have no right over plaint B schedule property and the suit was dismissed. The plaintiffs challenged the correctness of the judgment and decree passed by the trial court. The defendant, on the other hand, filed a cross objection against some of the findings of the court below. The appellate court dismissed the appeal filed by the plaintiffs and allowed the cross objection filed by the defendant. Hence the plaintiffs have come up in second appeal. 6. The defendant, on the other hand, filed a cross objection against some of the findings of the court below. The appellate court dismissed the appeal filed by the plaintiffs and allowed the cross objection filed by the defendant. Hence the plaintiffs have come up in second appeal. 6. The appellate court found that the plaintiffs are not entitled to claim an easement of prescription as contemplated under S.15 of the Easement Act on the short ground that the plaintiffs purchased the kudikidappu right as per purchase certificate dated 27.12.1973 and the suit was filed on 26.6.1993. Hence the statutory period of 20 years required for claiming easement right by prescription has not been completed before filing of the suit. Hence the contention of the plaintiffs that they obtained a right over plaint B schedule pathway as easement by prescription was not accepted. The arguments raised relying on S.79(A) of the Kerala Land Reforms Act was also repelled holding that as per S.79(A) only such right accrued by custom, usage of agreement enumerated therein in respect of the land in which kudikidappu is claimed alone can be secured and an easement right over others' property will not come under the purview of S.79(A) of the Kerala Land Reforms Act. Finding that the plaintiffs have got an alternative way, it was held that the claim for easement by necessity also cannot be allowed. The appeal was accordingly, dismissed. 7. The substantial question of law arises for consideration in this appeal is: Whether a Kudikidappukaran who has purchased his kudikidappu right as evidenced by Ext. A2 purchase certificate from the Land Tribunal is entitled to claim a right of easement under S.15(A) of the Easement Act and if so, whether the statutory period of 20 years has to be calculated from the date of issuance of the purchase certificate or from an earlier date? 8. Learned counsel appearing for the appellants fairly conceded that their claim regarding easement of necessity has been found against by both the courts below rightly on finding that there is another alternate pathway. As regards the right of easement by prescription under S.15 is concerned, he has submitted that even S.79(A) of the Kerala Land Reforms Act clearly confers such a right of easement. As regards the right of easement by prescription under S.15 is concerned, he has submitted that even S.79(A) of the Kerala Land Reforms Act clearly confers such a right of easement. Besides a Kudikidappukaran who has been issued with a purchase certificate is entitled to claim a right of easement under Easement Act independently in a civil suit. The mere fact that he is a Kudikidappukaran will not disentitle him from claiming the right and the assumption made by the court below that only an owner can claim such easement, he submits, is wrong. He also seeks support for his submission from the decision reported in Sreedharan v. Iffy (1981 KLT 245 ). He also submits that the period of 20 years has to be calculated not from the date of purchase certificate but from the date on which the but or homestead is erected. 9. On the other hand, the learned counsel appearing for the respondent submitted that S.15 of the Easement Act confers a right only if the person is using the pathway as of right. A Kudikidappukaran cannot therefore be deemed to use the pathway as of right even assuming to be so since the purchase certificate was issued only in 1973. Further, the appellants derive title to their property from the land owner and the counsel argues for the position that the tenant cannot claim any easement right against the owner. 10. There is no dispute that the appellants herein are kudikidappukars who have purchased their right of kudikidappu as evidenced by Ext. A2 dated 27. 12.1973 as per the application filed as O.A. 596 of 1970 before the Land Tribunal. The right to purchase a kudikidappu is conferred on a kudikidappukaran as per the provisions of Act 35 of 69 which came into force with effect from 1.1.1970. A2 dated 27. 12.1973 as per the application filed as O.A. 596 of 1970 before the Land Tribunal. The right to purchase a kudikidappu is conferred on a kudikidappukaran as per the provisions of Act 35 of 69 which came into force with effect from 1.1.1970. The definition of the term "kudikidappukaran" as contained in S.2(25) of the Kerala Land Reforms Act reads as follows: "Kudikidappukaran" means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and (a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting & homestead; or (b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a but belonging to such person and situate in the said land and "kudikidappu" means the land and the homestead or the but so permitted to be erected or occupied together with the easements attached thereto. ( The other part of the section is not relevant for our purpose. ) 11. S.79(A) of the Kerala Land Reforms Act reads as follows: Customary and other rights of kudikidappukaran (1), Notwithstanding anything contained in any law, or in any judgment, decree or order of court, the Kudikidappukaran shall be entitled to all rights accrued to him by custom, usage or agreement and which he was enjoying immediately before the commencement of this Act. (2) Notwithstanding anything contained in any law, or in any judgment, decree or order of court, but without prejudice to any rights to which a kudikidappukaran may be entitled under any other law for the time being in force or under any custom, usage or contract a kudikidappukaran shall in respect of his kudikidappu have all the rights and privileges conferred on the owner of a land under the Indian Easements Act, 1882, as if the kudikidappukaran were the owner of his of kudikidappu from the date on which the but or homestead, as the case may be, was occupied or erected. (3) Notwithstanding anything contained in any law, or in any judgment, decree or order of court, or in any contract, it shall not be necessary to obtain the consent of the owner (2) or occupier of both of the land in which a kudikidappu is situate, to lay down or place any electric supply line or other work on, over or under such land for the purpose of supply of electrical energy to the kudikidappu for domestic consumption and use. (4) Notwithstanding anything contained in any law, or in any judgment, decree or order of court, or in any contract, it shall not be necessary to obtain the consent of the owner or occupier or both of the land in which a kudikidappu is situate to lay down any pipe or to carry out any other work on, over or under such land for the purpose of supply of water to the kudikidappu for domestic occupation and use. Explanation:-For the purpose of this Section, enjoyment of any benefit or concession for a continuous period of three years immediately preceding the commencement of this Act shall be deemed to be enjoyment of a right accrued to the kudikidappukaran by custom, usage or argument. 12. S.2(25) read with S.79(A) of the Act would show that apart from the extent of land a kudikidappukaran is entitled to purchase as mentioned under S.2(25) he is also entitled to have all the rights and privileges conferred on the owner of a land under the Easement Act, 1882 as if the kudikidappukaran were the owner of his kudikidappu from the date on which the but or homestead, as the case may be, was occupied or erected, notwithstanding anything contained in any law or in any judgment, decree or order of a court. 13. Therefore, the legislature has made it clear that a kudikidappukaran shall be deemed to be an owner for the purpose of his easement right under the Easement Act 1882 and mere confirmation of certain right as a kudikidappukaran under the Kerala Land Reforms Act will not disentitle him from claiming any other right which he is entitled to as per that Act namely, the Easement Act, 1882. 14. 14. Therefore, the argument that a tenant cannot claim a right of easement by prescription or any other easement right against his landlord cannot be accepted in the light of the clear provision contained in S.79(A)(2) of the Kerala Land Reforms Act deeming a kudikidappukaran to be the owner for the purpose of Easement Act, 1882. This Court in Sreedharan v. Itty (1981 KLT 245 ) considered a similar question, where an application for purchase of the kudikidappu was pending before the Land Tribunal, a civil suit was filed for declaration of easement right with respect to the pathway leading to the kudikidappu. The question arose was as to whether the civil court has jurisdiction to decide the question. Referring to S.80A(1) of the Kerala Land Reforms Act, it was observed that kudikidappukaran shall have the right to purchase kudikidappu occupied by him and the lands adjoining thereto. On that context, the court observed as follows: "In fact the question of easement right was not before the Land Tribunal, and there is nothing to show that was a matter which was to be determined by or under the Act so as to prevent the Civil Court from settling, deciding or dealing with that question, I therefore, find no merit in the contention raised by the counsel for the appellants with respect to the maintainability of the suit on the ground that the civil court was having no jurisdiction to settle, decide or deal with the question of easement raised in the suit. " 15. " 15. Then in para 5 of the same judgment after referring to the contention of the owner that under S.13 of the Indian Easement Act the petitioner therein who was the plaintiff and who was in the nature of a licensee, could not have asked for the relief until he became the full owner of the land and the further contention that when the suit was instituted the plaintiff had not become the full owner of the land and therefore he is not entitled to the relief of easement of necessity, the court held: "Apart from the fact that he had interest in the property in view of the conferment of fixity of tenure, without being liable to be evicted, with respect to the kudikidappu, there is evidence to show that the plaintiff, his father and forefathers had been in occupation of the kudikidappu, and that access to that kudikidappu was through the pathway. " 16. From the above decision also, it can be seen that the petitioner who is a kudikidappukaran is also entitled to claim an easement right under the Easement Act provided he satisfies the ingredients of S.15 of the Easement Act. 17. Now coming to the real question as to from which point of time, the 20 years period has to be calculated, it has to be borne in mind that an easement of prescription confers a right based on long usage for a prescribed time. Therefore what is important is the user of the land or the path way in question. When certain rights are conferred by Act 35 of 69, the purchase certificate issued later based on an application made in 1970 itself, after following the procedure laid down by law is only a proof of purchase of such right based on adjudication. In other words, it is a declaration of such right by the statutory authority after finding that the conditions referred to in S.2(25) of the Act is satisfied. Only a person who is in occupation of a but or a homestead as defined in the Act can apply to the Land Tribunal for purchase of a kudikidappu right. Therefore, the applicant has to satisfy the conditions precedent for grant of that right or confirmation of that right. Only a person who is in occupation of a but or a homestead as defined in the Act can apply to the Land Tribunal for purchase of a kudikidappu right. Therefore, the applicant has to satisfy the conditions precedent for grant of that right or confirmation of that right. Therefore, when such a declaratory relief is granted, it is a declaration of the right which relates back to the date on which he is in occupation of the but or homestead, as the case may be. Therefore, if a particular pathway is there in use, prior to the issuance of a purchase certificate, then it cannot be said to arise from the date on which the purchase certificate was issued if actually such user was there even from the date of occupation of the hut. In other words if the plaintiffs are able to show that they are using the pathway even prior to the date on which the purchase certificate was issued to him, then they are certainly entitled to include those period also for the purpose of reckoning the 20 years period. 18. Since the appellate court has not considered the matter on merits as to whether the plaintiffs were using the pathway as of right and whether the plaintiffs were using the plaint schedule property from any time anterior to the date on which the purchase certificate was issued but proceeded on the assumption that the right to use the pathway, at any rate, will be only from the date of issuance of the purchase certificate, the decision has to be set aside as it is contrary to what has been stated above. Hence the judgment and decree of the court below is set aside, the matter is remitted to the appellate court for a fresh consideration on the question as to whether the appellants were actually using the plaint B schedule pathway for a period of 20 years continuously and peacefully as referred to in S.15 of the Easement Act, 1882 uninterruptedly after considering the evidence on record. 19. The lower appellate court has proceeded as though the plaintiffs have to satisfy that they were in enjoyment of the pathway for a period of 20 years as on the date of the suit. 19. The lower appellate court has proceeded as though the plaintiffs have to satisfy that they were in enjoyment of the pathway for a period of 20 years as on the date of the suit. As per S.15 of the Easement Act, each of the said period of 20 years shall be taken to be a period ending within two years next before institution of the suit. Hence in order to successfully claim a right under S.15 of the Easement Act, the period of 20 years has to be satisfied ending within two years next before the institution of the suit. In the result, the appeal is allowed and the matter remitted to the court below for fresh consideration in accordance with law and subject to what is stated above. The parties shall bear their respective cost. The parties shall appear before the court below on 2.4.2002.