Judgment Dinesh Maheshwari, J.-The plaintiff No.1 Mangu Ram has preferred this second appeal against the Judgment and decree dated 22.08.1983 passed by the Civil Judge, Merta in Civil Appeal No. 36 of 1983 whereby the learned Civil Judge dismissed the appeal and affirmed the Judgment and decree dated 29.09.1976 passed by the Munsif , Nawa in Civil Suit No. 7/1973 which was filed by the plaintiffs for declaration and for granting of mandatory as well as perpetual injunction in relation to a right of way claimed by them for reaching their agricultural land through that of the defendant. 2. Briefly put the facts of the case are that the plaintiffs Mangu Ram (appellant herein) and Banna Ram filed the suit against defendant Shri Kishan with the averments in the plaint that agricultural land comprised in Khasras No. 899/1, 899/2 and 899/3 admeasuring 26 bighas 6 biswas situated at village Nawa was earlier in the joint kahtedari of the father of the plaintiffs and the father of the defendant. On 03.07.1953 a partition was effected and the western portion of the land fell in the share of the plaintiffs with the eastern portion going to the share of the defendant. A plan was annexed to the plaint and it was averred that before the partition, the only way of entering the land was at point R (shown on the northern side of the land). The plaintiffs averred that after the partition, on account of necessity of reaching the portion of the plaintiff , the way on the northern boundary shown at point RS was kept 12 ft. wide, which was regularly used by the plaintiff for carrying their carts, cattle etc. for agricultural purposes. The plaintiffs alleged that with the relation between the parties straining, the defendant attempted obstruction on this way RS and, therefore, they filed an application under Section 251 of the Rajasthan Tenancy Act before the Tehsildar, Nawa who issued an order on 09.06.1972 against the defendant for not obstructing the way. However, when the plaintiffs were carrying on agriculture operation for Rabi crops, then suddenly on 310.1972, plaintiff Banna was got arrested by the defendant and when the plaintiff Mangu was engaged in Pairvy of Banna, defendant destroyed and over-run the way RS and placed obstacles. However, when the plaintiffs were carrying on agriculture operation for Rabi crops, then suddenly on 310.1972, plaintiff Banna was got arrested by the defendant and when the plaintiff Mangu was engaged in Pairvy of Banna, defendant destroyed and over-run the way RS and placed obstacles. The plaintiffs later on came to know that the Tehsildar had also vacated the restraint order without hearing the plaintiffs and without making a complete enquiry. According to the plaintiffs, with the obstruction on the way RS, no other way was available for reaching the portion of the plaintiffs and the land was rendered useless. The plaintiffs claimed it to be a matter of easement of necessity and filed the suit seeking declaration in respect of the way at the point RS and also prayed for mandatory injunction for removal of the obstructions at the way and restraining the defendant by perpetual injunction for not obstructing the way in future. The plan filed alongwith plaint is at Page A5/5 of the record of the original suit. 3. The defendant with his written statement filed another plan, which is at Page A13/4 of the record. While admitting the measurements of the land in question and also admitting the fact of partition having been taken place on 03.07.1953, the defendant referred to the plan submitted by him and averred that the two fields were specifically divided by the boundary running in the entire length from North to South from point B to point C, the eastern portion being in the share of defendant while western portion falling in the share of the plaintiffs. 4. It was further averred that on the western side of the plaintiffs land, field of the Government school and another land of Khasra No. 898 referred as “Kothi Karari” were situated. A specific point Z was marked on the western boundary of the land of the plaintiffs opening in the field of the school and it was alleged that this point Z represented the way used by the plaintiffs for reaching their land, that is through the field of Government School. Another point O was marked on the northern boundary of the land of the plaintiffs with the averments that through this point O was also available the way for reaching the field of the plaintiffs which has been sold by the plaintiffs to Sarvar Khan. Another point O was marked on the northern boundary of the land of the plaintiffs with the averments that through this point O was also available the way for reaching the field of the plaintiffs which has been sold by the plaintiffs to Sarvar Khan. For his own land, the defendant pointed out that he had a specific way at point marked Y opening on the eastern side towards public way. 5. The defendant averred that before the partition, there were three ways for reaching the joint land, one on the eastern side marked Y, other on the western side marked Z and third on the northern side marked O, The specific case of the defendant in the written statement has been that no such way RS as alleged by the plaintiffs was in use. The defendant pointed out that on the northern side of his land, well and periphery of the well were situated over which no passage could be claimed. The plaintiffs have continued to use the ways on the aforesaid northern and western sides. Of course, the northern side way has been sold by the plaintiff to Sarvar Khan, yet western side way was available. The defendant further averred that the Tehsilder issued restraint order at the instance of the plaintiffs but when the defendant pointed out true facts, the Tehsildar vacated the order and directed the plaintiffs to use the way on the western side. 6. In nutshell, the defendant has alleged that way for the plaintiffs was available on the western side (at point Z) and no way RS as claimed by the plaintiffs was available. It was also alleged that the suit in present form was not maintainable; that the suit was of the jurisdiction of the revenue Court; that the suit was barred by time; and that plaintiffs were estopped from going against the registered partition deed. 7. The plaintiffs submitted a rejoinder disputing the correctness of the dividing line BC as alleged by the defendants and averred that dividing line ended nearly 14 fts. before the boundary, that is to say that according to the plaintiffs, although entire land was divided but on the northern portion, a point for way was left open for the plaintiffs. The plaintiffs also denied selling of any land to Sarvar Khan or existence of any way at the points O and Z. 8. before the boundary, that is to say that according to the plaintiffs, although entire land was divided but on the northern portion, a point for way was left open for the plaintiffs. The plaintiffs also denied selling of any land to Sarvar Khan or existence of any way at the points O and Z. 8. On the pleadings of the parties, following issues were framed: Þ¼1½ vk;k oknhx.k dks [kljk ua- 899] 899@1] 899@2] 899@3 ds ifpeh fgLls ds mi;ksx o x gsSrq uDkas esmiHkksa crk;s x;s ekxZ RS dks mRrj nf {k.k 12 QhV dh pkSMkbZ esa [ kqyk j[kokus dk btesUV vkQ uSlSlhVh dk vf /kdkj izkIr gS \ ¼2½ vk;k vkjkth;kr [kljk la- 899] 899@1] 899@2] 899@3 ds if peh Hkkx esa oknhx.k dk vkokxeu dk ,dek= ekxZ layXu uDks esa nkkZ; sx;s RS LFkku ij gS \ x o miHkksx gS¼3½ vk;k oknhx.k ds fgLls es vk;s if peh Hkkx ds mi;ksrq ,d ek= ,oa vfuok;Z ekxZ RS gksdj gksus ls mlesa vojks/k gVokus dk o mls [ kqyk j[kokus dk oknhx.k dks vf /kdkj gS \ ¼4½ vk;k oknhx.k us dksVZ Qhl isk dh gS og ukdkQh gS+ \ ¼5½ vk;k nkok ekStwnk gkyr esa Maintainable ugha gS \ ¼6½ vk;k nkok gktk vnkyr gktk ds v[r;kj lek;kr u gksdj jSosU; q dksVZ ds lek;kr dk gS \ ¼7½ vk;k nkok e;kn vUnj gS \ ¼8½ vk;k njE;ku Qjhdsu caVokjk gks pqdk gS vkSj oknhx.k fyf [kr jftLVMZ caVokjs ds fo:} tkus ls Estopped gS \ ¼9½ nknjlh \ 9. It appears that plaintiffs also submitted an application seeking temporary injunction against the defendant but the same was rejected on 16.05.1973 with the trial Court finding no prima facie case in favour of the plaintiffs nor the balance of convenience in their favour and with reference to the alternative way through the field of the Government Higher Secondary School, Nawa, it was also not accepted that the plaintiffs would suffer any irreparable injury. Relevant it is to notice that while considering the said temporary injunction application, a Commissioner, Shri Purnanand Mishra, Advocate was sent for site inspection who submitted a report dated 10.05.1973 giving out the situation at site with reference to all relevant points with meticulous attention to details. The said report has been received in evidence in trial of the suit and marked as Ex.3. 10. The said report has been received in evidence in trial of the suit and marked as Ex.3. 10. In oral evidence, plaintiffs examined PW1 Sheolal Dhobi, PW2 Todu Ram Kumhar, PW-3 Chandra Regar, PW4 Hardev Mali, PW5 Abdul Gaffar, PW6 Bherulal Nai, PW7 Purnanand Mishra and PW8 Magnu Ram (plaintiff) The defendant examined DW1 Trilok Chand Kumhar, DW2 Nathu Kumhar, DW3 Rampal Dhobi, DW4 Kalu Ram Jain DW5 Bheru Bux Jat, DW6 Bheru Ram Balai, DW7 Nathu Brahmin, DW8 Gordhan Kumhar and DW9 Shri Kishan (defendant). In documentary evidence, registered partition deed has been taken on record as Ex. 1, the forwarding letter of the Commissioner as Ex. 2 and his report as Ex. 3. There are two plans available on record filed by respective parties but both of them have been marked as Ex. D/1. 11. The learned Munsif after hearing the parties decided issue No. 2 against the plaintiffs and held that the place marked at RS was not found to be in existence and it was not the only way for reaching the field of the plaintiffs. Following the finding on issue No.2, issues No.1 and 3 were also decided against the plaintiffs with the findings that there was no easement of necessity and alternative way was available to the plaintiff from the field of the school. Although issues No. 6 and 7 relating to jurisdiction of the Court and limitation were decided against the defendant but on issue No.4, the learned Munsif was of opinion that plaintiff has claimed declaration as well as injunction, therefore, the Court fees was deficit. On issue No.5, it was held that in this suit, the plaintiffs have claimed the relief of mandatory injection and perpetual injunction together with declaration; therefore, the suit in this form was not maintainable. Issue No.8 was decided against the defendant with the finding that as there was no mention of any way in the partition deed Exhibit 1, therefore, it cannot be said that plaintiffs were going against the terms of the partition deed and they were not estopped from claiming the way. On the issue of relief , the learned Munsif was of opinion that as the plaintiffs have failed o establish the way RS to be the only way for reaching their field, therefore, the plaintiffs were not entitled for any relief . On the issue of relief , the learned Munsif was of opinion that as the plaintiffs have failed o establish the way RS to be the only way for reaching their field, therefore, the plaintiffs were not entitled for any relief . The suit was accordingly ordered to be dismissed on 29.09.1976 directing the plaintiffs to make payments of the remaining Court fees within a month. 12. Aggrieved by the Judgment and decree dated 29.09.1976 passed by the Munsif , Nawa, plaintiff No.1 Mangu Ram preferred regular appeal before the District Judge, Merta which was registered as Civil Appeal (Decree) No. 67/1976. After long drawn adjournments for hearing the appeal, the learned District Judge, Merta by the order dated 19.04.1983 transferred the appeal for disposal to the Court of Civil Judge, Merta where the said appeal was registered as Civil Appeal (Decree) No. 36/1983 and has been decided by the impugned Judgment and decree dated 22.08.1983. 13. The considerations adopted by the learned Appellate Judge could be summarised thus: The learned Judge was of opinion that the place where the plaintiff has claimed the way was the place for reaching the irrigation well of the defendant and water for irrigation from the well passed through this place; that the place claimed as way was not at the boundary of the defendants field; that no way was mentioned in the partition deed and if a way was to be given running near the well of the defendant and running through his field, the same would have been mentioned in the document Ex. 1; that the way was available earlier to the plaintiffs at point O (the land in possession of Sarvar Khan). Thereafter, the learned Judge dealt with the submissions of the plaintiffs that no other way was available and observed that the disputed way was closed on 011.1972 but thereafter in the years 1973, 1974, 1976, the land of the plaintiffs has been cultivated which shows that some other way was available and this other way has been identified as the way on the north western corner of the plaintiffs land running through the field of the school and opening towards public urinals. It has also been observed that another agriculture field near the field of the plaintiffs was situated known as Kothi Karari and the way for reaching this Kothi Karari was also from the field of the school. It has also been observed that another agriculture field near the field of the plaintiffs was situated known as Kothi Karari and the way for reaching this Kothi Karari was also from the field of the school. According to the learned Judge, from the statements of PW-4 and PW-6, the circumstances emerging were that it was possible o reach the plaintiffs field through the field of the school and, therefore, the case of easement of necessity was demolished. Immediately upon these considerations, the learned Judge concluded thus: mijksDr voLFkk esa lq[kkpkj vko;drk ¼easement of necessity½ dk ekeyk lekIr gks tkrk gSA bl izdkj ;g U;k;ky; lk{; dk v/;;u djus ds Ikpkr ;g fu/kkZfjr djrk gS fd%& 1- oknh ds tko es tkus dk jkLrk vkj-,l- LFkku ls ugha jgk vfirq caVokjk ds Ikpkr ,fXtfoV Mh 1 es LFkku ÞvksÞ ij FkkA 2- orZeku easoknh ds tko ds mRrjh if peh dksus ds ikl ls oknh ds tko esa vkus&tkus dk jkLrk gSA 3- vxj LFkku vkj-,l ij oknh ds tko dk jkLrk gksrk rks bldk mYys[k caVokjk ,fXtfoV 1 nLrkost esa vo; gksrkA vr% vo/kkj.k fcUnq dk mRrj izfroknh izR;FkhZ ds Ik{k esa fn;k tkrk gSA v/khuLFk U;k;ky; us LFkku vkj-,l ij oknh dk jkLrk gksuk ugha ekuk gSA mDr fu"d"kZ esa gLr{kisfd, tkus dh vko;drk ugha gSA ;g U;k;ky; Hkh blh fu"d"kZ ij igqaprk gSA ifj.kkeLo:Ik vihy vlQy jgrh gSAÞ 14. Aggrieved by the Judgment and decree dated 22.08.1983 passed by the first appellate Court, the plaintiff No.1 Mangu Ram has preferred this second appeal which was admitted on 03.09.1984 after hearing the learned Counsel for the parties while formulating the following substantial questions of law: - “(i) Whether the first appellate Court has failed to consider the oral evidence led by the plaintiff and as such the Judgment of the first appellate Court is no Judgment in the eye of law? (ii) Whether the appellant has been able to establish a customary right of easement as well as an easement of necessity through the point R.S. shown in the site-plan Ex.A.1?” 15. (ii) Whether the appellant has been able to establish a customary right of easement as well as an easement of necessity through the point R.S. shown in the site-plan Ex.A.1?” 15. It may also be pointed out that while this appeal was pending for hearing, the appellant moved an application under Order 26 Rule 9 CPC on 111.1998 with the submissions that at the time of filing of the suit, no boundary wall on western side of the plaintiffs field was existing but after filing of the appeal, a wall has been erected. Earlier also the use of the school field by the plaintiffs was objected to by the school authorities and now with the wall having been constructed, it has become practically impossible for the plaintiffs to pass through that side also. The plaintiffs have further submitted that persons in possession of the land contiguously with the northern boundary have also constructed their respective walls and, therefore, whatever small piece of open land which was available, the same has been closed by the constructions and for elucidating the present status, a Commissioner be appointed. The application so submitted by the appellant has been replied by the defendant-respondent again with the submissions that there was no mention of any way in partition deed and the two Courts below have not accepted the way and the plaintiffs were not entitled to claim any way from his land and must continue to reach their field as they were reaching earlier. By the order dated 12.07.1999, it was observed that looking to the facts and circumstances of the case, it would be expedient that said application be decided at the time of final hearing of the appeal itself and hence the case was posted for final hearing. 16. By the order dated 12.07.1999, it was observed that looking to the facts and circumstances of the case, it would be expedient that said application be decided at the time of final hearing of the appeal itself and hence the case was posted for final hearing. 16. Having heard the leaned Counsel for the parties and having scanned through the entire material available on record, this Court is of opinion that while Question No. (1) deserves to be answered in the affirmative and the Judgment of the first appellate Court cannot be said to be a Judgment in the eye of law, but no Question No. (ii), on the facts and in the circumstances of this case, it appears to be in the interest of justice that while setting aside the Judgment and decree passed by the appellate Court, the matter be remanded for decision of the appeal afresh in accordance with law. 17. So far the Question No. (i) formulated for consideration in this appeal is concerned, a bare perusal of the Judgment of the first appellate Court makes it clear that learned Appellate Judge has chosen to proceed in a wholly cursory manner and has failed to consider the question involved in this case in their proper perspective, and has failed to consider the evidence on record and so also the law applicable to the case. The impugned Judgment dated 22.08.1983 does not show that the learned Appellate Judge has come in the grip of the substance of the oral and documentary evidence on record and the case of easement of necessity his been rejected largely on the consideration that although the plaintiffs claimed the way RS to have been closed on 011.1972, yet for the years 1973, 1974 and 1976, the field of the plaintiffs has been cultivated which would show that there was other way available. This other alternative way has been identified at the north-western corner of the plaintiffs field opening towards school field and leading towards public urinals and it has been observed hat by the statements of Hardev, PW-4 and Bherulal, PW-6 the circumstance emerging was that it was possible to reach plaintiffs land through the school field and from the statements of defendant and his witnesses also, it was found that way to the plaintiffs land is from the school field. 18. 18. The effect of substantial evidence of the plaintiffs and their witnesses wherein PW-1 Sheolal Dhobi has deposed towards the fact that there was no other way except the way RS and that on the northern side earlier the discharged water from the village was flowing through; of PW-2 Todu Ram Kumhar who has shared the produce in the field before partition and thereafter in the plaintiffs portion who has also deposed about non-existence of any other way has not been considered . Moreover, the effect of statement of DW-1 Trilok Chand suggesting the situation of the land of the plaintiffs vis-à-vis northern side Nala to be unevenly matched; and the denial by DW-3 Rampal Dhobi of availability of passage near public urinals; of other part of testimony of PW-4 Hardev who had been a peon in the school and who has denied any way from the school and so also denial of any passage from the school field by PW-6 Behrulal who was also serving in the school seem not to have been given the requisite consideration by the learned Appellate Judge. The learned Appellate Judge has picked up certain portions in bits and pieces from the statement of some of the witnesses but has failed to analyse and appreciate the total evidence as required of a final Court of fact. The learned Judge has further omitted to consider sustainability of the findings by the learned Munsif on other issues. The consideration of the record by the learned Appellate Judge is evidently most casual and cursory and the findings recorded by the learned Appellate Judge could hardly be accepted as considered findings of fact. Learned Counsel for the respondents also quite realising the cursory approach of the learned Appellate Judge, largely based his submissions with reference to the findings recorded by the learned Munsif and not with reference to the Judgment of the learned first Appellate Judge. On the facts and in circumstances of the case, this Court is satisfied that the first appellate Court has failed to consider the oral evidence led by the plaintiffs and has moreover failed to appreciate and weigh the evidence led by the parties, and has not examined the record of the case and its Judgment cannot be said to be a Judgment in the eye of law. Substantial question of law No.(i) is specifically answered in the affirmative in favour of the appellant. 19. The conclusions recorded by the learned Civil Judge, as quoted hereinabove, are either absolutely perverse and erroneous or are too perfunctory to be accepted as considered findings based on relevant considerations and on proper appreciation of evidence. 20. So far the conclusion No.3 by the learned Appellate Judge is concerned, the learned Judge has totally omitted to consider that it has never been in dispute that the said document Ex.1 contains no recital for any particular way for reaching the portion falling in the share of the plaintiff . However it being a claim of easement of necessity for reaching the field of the plaintiff , the omission of any recital in the partition deed has no relevance to the questions involved in this case. On the contrary, had there been any such recital, the parties would have been bound by those terms and then the scope of enquiry in the suit itself would have been entirely different. This Court is clearly of opinion that in a case of easement of necessity, omission of mentioning of a particular easement, when a partition is made of the joint property, is hardly of any relevance. By virtue of Section 13 of Easements Act, 1882, where a partition is made of the joint property of several persons, if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter has been declared to be entitled to such easement (vide Clause (e) of Section 13) and such easement is called easement of necessity. In a case of partition of the joint property, a right of easement claimed as easement of necessity is presumed to be intrinsic and inherent in severance of tenements consequent upon cessation of common ownership. An easement of necessity is presumed to have been granted, if that is necessary for enjoying the share of dominant tenements. 21. Therefore, even if there is no express grant available from the document of partition, the same would have little bearing on the claim of an easement of necessity. It is the presumption of law, which is made in favour of easement of necessity that settles it as a grant arising by implication of law. 22. 21. Therefore, even if there is no express grant available from the document of partition, the same would have little bearing on the claim of an easement of necessity. It is the presumption of law, which is made in favour of easement of necessity that settles it as a grant arising by implication of law. 22. It is not correct an approach to say that if any way at RS was to be made available. The same would have been mentioned in the document of partition Ex. 1. It is not the case of the defendant that in the document Ex. 1 there was any prohibition operating upon the plaintiff to claim the way at point RS. No such contrary intention could even be called out from the document Ex.1 so as to reject he claim of the plaintiff on the basis of this documents alone. The conclusion No 3 as recorded by the learned Civil Judge remains absolutely irrelevant a consideration. 23. In conclusion No.1 recorded by the learned Appellate Judge so far an alternative way has been held available after the partition at point O on the northern side, the finding is absolutely perverse and cannot be sustained. Point O on the northern side leads to the land of different persons particularly Meeru Khan and Sarvar Khan and it appears from the statements of PW-1 Sheolal Dhobi and PW-3 Chandra that at the suggested place a Nala was situated which was later on covered and taken possession of by different persons including Sarvar Khan. Even from the testimony of defendants witness DW-1 Trilok Chand, it appears that this Nala was taking regular flow of water. It further appears that this northern side portion could not have been used as a way for uneven placement of respective lands. A mere suggestion on the part of the defendant that the plaintiff used the land on the northern side as a way for reaching his field cannot be accepted for final pronouncement that there was existing a regular way for reaching field of the plaintiff . In any case, the entire of such land on the northern side had admittedly been taken over in possession by different persons and a suggestion by the defendant as if the plaintiffs sold the land to Sarvar Khan has never been established on record. In any case, the entire of such land on the northern side had admittedly been taken over in possession by different persons and a suggestion by the defendant as if the plaintiffs sold the land to Sarvar Khan has never been established on record. On the contrary, there are two specific contradictory suggestions in the cross-examination of the plaintiff . At one stage, it was suggested as if the land was sold to Sarvar Khan by the plaintiff and at the other stage, it was also suggested that Sarvar Khan purchased the land from the Municipality. On consideration of the facts in totality in this case, it appears that no such way at point O was available which could be accepted as passable alternative way for reaching the field of the plaintiff . Conclusion No.1 by the learned Civil Judge in so far it has been held that way at point O was available cannot be sustained and is rejected being wholly perverse. 4.24. As regards the conclusion No.2 recorded by the learned Appellate Judge, holding that at present the way was available to the plaintiff on the north western corner, the same remains a vexed question in this case. The finding aforesaid refers to the point Z towards the field of the school. However, before abruptly concluding that the aforesaid was an alternative way, the learned Civil Judge has not even paused to consider if at all such way was lawfully available to the plaintiffs who could have used it as a matter of right and the alleged way could be held to be effective alternative way? 25. So far the case of easement of necessity of concerned, for denying a way to agriculture field, a positive finding of existence of specific alternative way becomes necessary and the alleged alternative way has to be such which could be used as a matter of right. 26. It is not suggestion of an alternative way alone which is conclusive against the claim of easement of necessity. The alternatives way has to be shown to be lawfully available for being used as a matter of right for reaching the agriculture field with necessary appliances. Of course, when boundary wall of the school field separating it from the land of the plaintiffs was not in existence, the likelihood of open area having been utilised for ingress and egress cannot be ruled out. Of course, when boundary wall of the school field separating it from the land of the plaintiffs was not in existence, the likelihood of open area having been utilised for ingress and egress cannot be ruled out. But the question still remains as to whether the plaintiffs were using and were entitled to use the same as a matter of right? 27. A fact has been given relevance out of proportion by the learned Courts below that a land situated on the southern side of the school field parallel to the land of the plaintiffs known as Kothi Karari was being reached through the school field and that has been assumed to be indicative of the fact that a way was available from he school field. Nobody using the land of Kothi Karari has been examined to show that the land from the school field was used as a matter of right. It is of course true that in the evidence of the two witnesses of the plaintiffs PW-3 Chandra and PW-4 Hardev, it has been stated that Karari Jav was being reached through the school field but the question still remains as to whether such way was used as a matter of right, and further, as to whether because of that use, an entry on the western boundary of the plaintiffs land ipso facto became available? 28. It is found on record that local Commissioner, PW-7 Purnanand Mishra has submitted his report Ex. 3 about the situation at site with all minute details but the learned Courts have chosen not to examine the same in its entirety. The learned Munsif merely made a cursory reference to the same particularly in relation to the fact of the way to Kothi Karari from the school field. In fact, even this way has not been reported as such by the Commissioner and he has only mentioned that a way was alleged to be going o Kothi Karari from the school field. The points XY at Kothi Karari on its boundary with school field were not marked while preparing the report by the Commissioner and have been marked only during the examination in the Court. The only other part of the Commissioners report taken into consideration by the learned Munsif has been about the obstructions on the disputed way. Numerous other details in the report Ex.3 giving out measurements, location, status. etc. The only other part of the Commissioners report taken into consideration by the learned Munsif has been about the obstructions on the disputed way. Numerous other details in the report Ex.3 giving out measurements, location, status. etc. of the entire area have been left out from consideration. The learned Commissioner has sketched the position of every point and every portion under reference with precision and then has further magnified the position of the disputed way with recitals about everything found thereat. The position of north-western point which has been asserted by the defendant to be the alternatives way has also been mentioned in sufficient detail. It seems that this painstakingly detailed report has not received adequate consideration by the Courts below. 29. Although the learned Munsif at least looked at a part of this report albeit cursorily, but so far the learned Appellate Judge is concerned, the said Commissioners report and the facts clarified therein and circumstances emerging therefrom have been totally omitted from consideration. 30. Apart from the aforesaid, both the learned Courts below have not at all considered that the claim of the plaintiffs was for reaching the agricultural land and for agricultural purposes. In respect of agricultural land, the easemetary right of one tenant to pass through the boundary of the land of the other tenant for reaching his field has been recognised as a customary easement. This Court has laid down and explained such position of law in the case of Chandgi Ram vs. Ram Lal, 1962 RLW 458 thus:- “ ….. For in this country as fields are generally of small size, are surrounded by fields of other tenants and are not connected by private or public pathways, there is a customary right vested in a tenant of every field whether or not his tenancy is heritable and alienable-to have access to it for agricultural purpose and this right is available to him, to members of his family, his hired labourers and his partners in cultivation. These persons can go to the field and return from it on foot and can take unyoked bullocks and ploughs with them. This right can only be exercised in accordance with the principles underlying Sec 22 of the Act namely in the mode which is least oner