Judgment This Second Appeal is directed against Judgment in A.S.No.15 of 1994 on the file of Sub court, Chidambaram, reversing the Judgment of the Trial Court and thereby dismissing the Plaintiffs suit for declaration that the Plaintiffs are entitled to use and enjoy suit property as road and for permanent injunction. Unsuccessful deceased Plaintiff is the Appellant in the Second Appeal. Pending Second Appeal deceased Appellant Pazhamalai Pillai died and Appellants 2 to 6 were substituted in the place of him. 2. The suit pathway is situated on the South of main road and runs through R.S.Nos. 33/2, 33/3, 33/4 and R.S.No.34 and stopped in front of the Plaintiffs house situated in R.S.No.35. All these three survey numbers, R.S.No.33/2 is Kulam Poromboke" belonging to the Government. The R.S.No.33/4 is Patta land of the Appellants. On the south of the main road, there is a channel and there is a culvert over the channel connecting the main road and the suit pathway. 3. The case of Plaintiffs / Appellants is that the suit property is a part of road or pathway which runs from North to South . Plaintiffs and other villagers using the suit road or pathway, which is the only road or pathway to reach their houses and there is no other access. The Panchayat has also laid road over the suit property, light posts are installed by the Panchayat in the suit road. A deep bore well hand pump has been installed by the Panchayat in a part of the road or pathway. The road runs from north to south directions and takes a turn towards west and again it takes turn towards south. There are number of houses situated in the western side of the road. The road runs through four survey numbers, viz., 33/2, 33/3, 33/4 and 34. 33/4 is the patta land of the Plaintiffs (PW 1 since deceased) one cent in S.No.33/3 was the patta land of one Rajasekaran. S.No.33/2 is poromboke land. The suit road/pathway was formed for more than 60 years back and it has been used by the villagers as road or pathway from time immemorial. 4. The 1st defendant resisted the suit contending that he had purchased one cent in S.No.33/3, which is in the centre of the road from one Rajasekaran under Ex.B1 sale deed dated 31.05.1981. The suit road/pathway was formed for more than 60 years back and it has been used by the villagers as road or pathway from time immemorial. 4. The 1st defendant resisted the suit contending that he had purchased one cent in S.No.33/3, which is in the centre of the road from one Rajasekaran under Ex.B1 sale deed dated 31.05.1981. The contention of the first defendant is that his vendor was enjoying one cent by raising vegetables thereon by putting up fence on all four sides. According to the first Defendant he has been cultivating R.S.No.33/3 by growing vegetable and that he has been paying Kist for the said land. First Defendant has specifically denied the user of the suit property as a road and has emphatically denied claim of easementry right. 5. The 2nd Defendant / District Collector filed written statement admitting existence of the road. In the written statement, 2nd Defendant has averred that R.S.No.33/3 is a patta land and if the pattadar puts up a shed in the land it will obstruct the use of pathway. 2nd Defendant has further averred that in the village plan the road is marked as pathway. .6. On the above pleadings relevant issues were framed. Upon consideration of oral and documentary evidence, trial Court held that there is existence of road which has been used for long time more than a statutory period. Pointing out the location of electric poles and existence of pathway in Ex.A.11 "Field Map Book" the trial Court held that the Plaintiffs have established their long user over the suit pathway and decreed the Plaintiffs suit. 7. Aggrieved, unsuccessful the 1st defendant preferred appeal. Finding that Plaintiffs have not proved the pathway in existence for more that twenty years, lower Appellate Court held that Plaintiffs have not proved their right of user of pathway. Lower Appellate Court further held that the 1st Defendant being a servient owner, Plaintiffs cannot seek for declaration. Pointing out existence of bore well and electric poles in the centre of the road, lower Appellate Court reversed the findings of the Trial Court and allowed the appeal setting aside the Judgment and decree of the trial Court. 8. Challenging the reversal finding of the lower Appellate court, unsuccessful Plaintiff preferred Second Appeal. Pointing out existence of bore well and electric poles in the centre of the road, lower Appellate Court reversed the findings of the Trial Court and allowed the appeal setting aside the Judgment and decree of the trial Court. 8. Challenging the reversal finding of the lower Appellate court, unsuccessful Plaintiff preferred Second Appeal. Second Appeal was admitted on the following substantial questions of law: 1) Whether the lower Appellate court is correct in holding that the plaintiff had failed to prove the existence of the suit pathway and that the plaintiff is not entitled to the decree as prayed for? 2) Is the lower appellate court correct in placing the entire reliance on the basis of the Commissioners report while reversing the Judgment of the trial court? 9. Mr. Muthukumar, the learned counsel for the Appellants has submitted that P.Ws.1 to 3 have categorically stated about the existence of the pathway for more than sixty years and in proper appreciation of their evidence, trial Court has rightly accepted Plaintiffs case. Drawing attention of the court to Ex.B1 sale deed, learned counsel for the Appellants further submitted that Ex.B1 sale deed does not contain specific boundaries which would only show that first Defendant had purchased the property only to create trouble to the villagers. The learned counsel for the Appellants assailed the findings of the lower Appellate Court contending that the Lower Appellate Court ignored the vital piece of evidence in Ex.A11 where the road is shown in dotted line. .10. Laying emphasis upon Ex.B6 Mr. Srinath Sridevan, learned counsel for the 1st Respondent has submitted that in Ex.B6, there is no indication of pathway. The learned counsel for the 1st Respondent further submitted that there is no evidence to substantiate the plea of easement by prescription to satisfy the essential ingredients of Section 15. The learned counsel would further submit that the Appellants have not proved user of pathway as of right and therefore, lower Appellate Court was justified in reversing the findings of the trial Court and there is no reason warranting interference. 11. Plaintiff and others are having houses on either side of road passing through R.S.Nos.33/2, 33/3 and 33/4. Plaintiffs who are the residents, claimed easement right by prescription. 11. Plaintiff and others are having houses on either side of road passing through R.S.Nos.33/2, 33/3 and 33/4. Plaintiffs who are the residents, claimed easement right by prescription. For acquiring an easement, there are three known modes; (1) express or implied grant; (2) user as of right for the statutory period of 20 years, i.e., by prescription; and (3) immemorial user upon the fiction of a lost grant. For the second mode, the period of 20 years or over must end within 2 years next before the suits institution wherein claim to the easement is contested; it necessarily implies that the right of easement by prescription cannot become absolute unless contended and established in a suit. Thus, in a suit for injunction, based on a prescriptive easement, the Plaintiff must also seek a declaration that he has so acquired the prescriptive right of easement and this is what exactly has been done by the Plaintiffs while instituting the suit for declaration and injunction. 12. A right of way may be acquired by prescription, if the same has been peaceably and openly enjoyed by any person claiming title thereto as an easement right without any interruption and for 20 years. Burden of proof of the element constituting a right of easement lies on the person who asserts that right. Plaintiffs are to prove that use of suit path for the period has been continuous, uninterrupted and for full prescriptive period. A user to ripen into a prescriptive right must not only be under a claim of right, but must also be with knowledge and acquiescence of the owner of the servient tenement. As such acquiescence is the foundation of the right by prescription. .13. Question in the instant case is whether on the facts, it could be held that Plaintiffs made out all the essential requirements of easement right by prescription. To show user of suit path for a long period, deceased Plaintiff Pazhamalai Pillai, aged 68 years was examined himself as P.W.1. Chellaperumal, aged 67 years, Kasilingam, aged 43 years were examined as P.Ws.2 and 3. In their evidence P.Ws.1 to 3 have categorically stated about the existence of pathway and their user as of right for nearly 60 years. To show user of suit path for a long period, deceased Plaintiff Pazhamalai Pillai, aged 68 years was examined himself as P.W.1. Chellaperumal, aged 67 years, Kasilingam, aged 43 years were examined as P.Ws.2 and 3. In their evidence P.Ws.1 to 3 have categorically stated about the existence of pathway and their user as of right for nearly 60 years. Their evidence is amply strengthened by the report of Advocate-commissioner and Ex.A8, photograph from which it is seen that on the south of road, there is a channel and there is a culvert connecting the main road to the suit pathway. In fact, in his evidence even D.W.1 has admitted the existence of road. But D.W.1 has stated that there is a straight road up to his site and thereafter, it proceeds towards west in the site of one Thanga papa which has been used by the villagers. Defence case is not substantiated by the report of Advocate-commissioner. 14. Lower Appellate court reversed the findings of the trial court by saying that 2nd Defendant/District Collector has not categorically stated that the suit property is a road. Such a finding of the lower Appellate court is factually incorrect. In the written statement, 2nd Defendant has categorically stated that in the village plan, road is marked as "pathway". In the counter filed in the High Court in C.M.P.No.1988/1995 also, 2nd Defendant has clearly stated about the existence of pathway running through R.S.Nos.33/2, 33/3 and 33/4 of Alkondanatham. Ex.A11 village Field Map Book (for short FMB) would affirm the averments of the 2nd Defendant in the written statement. The findings of the lower Appellate court that 2nd Defendant has not categorically stated about the pathway is factually incorrect and unsustainable. 15. Consistent case of the 1st Defendant is that there is no passage as alleged by the Plaintiffs. 1st Defendant has filed Ex.B6 FMB obtained from Chepauk Central Land Survey office for S.No.33 for the year 1920 survey and the survey does not indicate any pathway. Laying stress upon Ex.B6 FMB, the learned counsel for the 1st Respondent forcibly contended that non-mention of pathway in Ex.B6 would falsify the Plaintiffs case of user of pathway from time immemorial. It was urged that in the absence of any mention about the pathway in Ex.B6, Plaintiffs must allege and prove as to when they started using and when the road was laid down. It was urged that in the absence of any mention about the pathway in Ex.B6, Plaintiffs must allege and prove as to when they started using and when the road was laid down. The learned counsel for the 1st Respondent further urged that the Plaintiffs case lacks both pleading and evidence to satisfy the essential ingredients of Sec.15 of Easements Act. This contention does not merit acceptance. Ex.B6 FMB is of the year 1920. Case of the Plaintiffs is that they have been using the road for about 60 years. Suit was filed in 1989. Houses and road might have been come into existence subsequent to 1920. Non-mention of pathway in Ex.B6 FMB would not take away the Plaintiffs right of user of the suit path. 16. Contending that specific pleadings have to be averred and categorical evidence has to be adduced to prove easement, the learned counsel for the 1st Respondent placed reliance upon (2005) 1 SCC 471 (Justiniano Antao and others vs. Bernadette B.Pereira). In the said case, Honble Supreme Court has pointed out importance of specific averments in the plaint as to access which was used as of right. In the said case, Plaintiff had access on the south-east side and the same was being used by her for a long time and in such factual background, allowing the appeal, Honble Supreme Court dismissed the suit declining declaration of easementry right. The present case stands on different footing. In the present case, there are specific averments in the plaint as to the right of user of suit path from time immemorial and Plaintiffs have also adduced oral and documentary evidence. Exs.A4 to A9 photographs have been produced evidencing pathway. 17. Next contention of the 1st Respondent is that mere user of path or sporadic user will not amount to right of user so as to ripen into easement by prescription. Contending that no presumption could be raised by mere long enjoyment, the learned counsel for the 1st Respondent placed reliance upon AIR 1967 Madras 164 (Chidambara Thevar vs. Vedayya Thevar and others). In the said case, elaborately considering various aspects of right of way, it was held that by mere user alone, presumption of user as of right could not be drawn. 18. In the said case, elaborately considering various aspects of right of way, it was held that by mere user alone, presumption of user as of right could not be drawn. 18. In Nasiruddin vs. Deokali, (AIR 1929 Patna 124) the aspect that the burden is upon the Plaintiff to plead and prove that the user must be as of right was considered with particular reference to the law in England and in India. Courtney-Terrell, C.J. stated thus at pages 125-126: "In English law the exercise of a right of way and similar positive easements for a prolonged period gives rise to the presumption that such exercise was of right, that is to say, it is presumed that the right of passage was exercised without any permission, express or implied, on the part of the owner of the servient tenement. This is because social conditions and the nature of the landed property in England are such that land owners are particularly jealous of their exclusive right and the familiar appearance of the notice boards to be seen in England bearing the inscription trespassers will be prosecuted is an indication of the views held by the owners of property. Accordingly, it is to be presumed that if the owner of the dominant tenement has for a long period passed over the servient tenement that he did from the beginning with a claim of right, for it is unlikely that if he had such a right that the owner of the servient tenement would have allowed him to pass. In India, however, and it may be in other countries where such views of the exclusiveness of landed property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of piece of waste land not to raise any objection to the passage of strangers over such land. In India, however, and it may be in other countries where such views of the exclusiveness of landed property do not prevail a mere period of long user will not give rise to the presumption. It is customary for the owner of piece of waste land not to raise any objection to the passage of strangers over such land. It was pointed out by the Calcutta High Court in the leading case of (1904) 8 Cal WN 359 that in such circumstances mere long user gives rise to no such presumption as is to be inferred in England and that whether or not long user creates the presumption that is beginning was founded on a claim of right will depend upon the locality, the customs of the people, and it may be the relationship between the respective owners of the dominant and servient tenements" 19. It is well settled that no presumption de jure could be raised from mere long enjoyment and that all the circumstances of the case should be taken into account and in particular, the particular right that is asserted. The conditions and circumstances of the case to be taken note of. 20. Question in the instant case is whether on facts and circumstances, it could be held that the Plaintiffs have been using the road as of right. As pointed out earlier in Ex.A11 FMB, suit path is shown as dotted line. Written statement filed by the 2nd Defendant asserts existence of pathway. The fact that suit path is shown as pathway in the village FMB would amply prove that Plaintiffs have right of user. Had it been occasional use or permissive user, suit road would not have been shown as pathway in Ex.A11-FMB. Evidence of P.Ws.1 to 3 is to the effect that they have been enjoying the suit path without any interruption from the 1st Defendants predecessor-in-title. P.Ws.1 to 3 have asserted that they have been using the suit path from time immemorial for more than 60 years. According to P.Ws.1 to 3, villagers have formed road by themselves and thereafter, village panchayat had laid pucca road and village panchayat is having control over the suit path. The evidence and materials would amply show uninterrupted user for a long years and presumption has to be raised that user has been as of right. 21. According to P.Ws.1 to 3, villagers have formed road by themselves and thereafter, village panchayat had laid pucca road and village panchayat is having control over the suit path. The evidence and materials would amply show uninterrupted user for a long years and presumption has to be raised that user has been as of right. 21. Upon consideration of evidence of P.Ws.1 to 3 and other materials, trial court rightly held that Plaintiffs have right of user ripened into easement by prescription. When the Judgment of the trial court mainly based upon the oral evidence, lower Appellate court was not justified in interfering with the findings recorded by the trial court on oral evidence. No doubt, Appellate court can re-appraise, re-appreciate the oral evidence as well as documentary evidence and can come to its own conclusion. But it should not forget that trial court had an advantage and opportunity of seeing the demeanour of witnesses and therefore, trial court conclusions should not normally be disturbed. 22. In 2008 (3) CTC 528 (Jagdish Singh vs. Madhuri Devi), the Honble Supreme Court has held as follows:- " It is no doubt true that the High Court was exercising power as First Appellate Court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an Appeal is a continuation of Suit. An Appeal thus is a re-hearing of the main matter and the Appellate Court can re-appraise, re-appreciate and review the entire evidence oral as well as documentary and can come to its own conclusion." " At the same time, however, the Appellate Court is expected, nay bound, to bear in mind a finding recorded by the Trial court on oral evidence. It should not forget that the Trial Court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the Trial courts conclusions should not normally be disturbed. No doubt, the Appellate court possesses the same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection. It should not forget that the Trial Court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the Trial courts conclusions should not normally be disturbed. No doubt, the Appellate court possesses the same powers as that of the original Court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the Trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the Trial Court in appraisal of evidence is erroneous, contrary to well-established principles of law or unreasonable." " Three requisites should normally be present before an Appellate Court reverses a finding of the Trial Court: .(i) it applies its mind to reasons given by the Trial Court; .(ii) it has no advantage of seeing and hearing the witnesses; and (iii) it records cogent and convincing reasons for disagreeing with the Trial Court. .23. In the said decision, Honble Supreme Court has referred to 1983 (1) SCR 851 (Madhusudan Das vs. Narayanibai) wherein it was held that: ."At this stage, it would be right to refer to the general principle that, in an Appeal against a Trial Court decree, when the Appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the Trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the Trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the Trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies...... The principle is one of practice and governs the weight to be given to a finding of fact by the Trial Court. The principle is one of practice and governs the weight to be given to a finding of fact by the Trial Court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the Trial Court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the Appellate Court is entitled to interfere with the finding of fact." 24. Keeping the above principles in mind, in my considered view, when the trial court has considered the oral evidence and recorded findings after seeing demeanour of witnesses, lower Appellate Court was not justified in interfering with the findings recorded by the trial court. .25. Consistent case of defence is that there was no such passage at any point of time nor was used by the Plaintiffs and that the 1st Defendant is in enjoyment of S T U V ever since his purchase under Ex.B1 sale deed dated 30.05.1981. It needs to be stated when the 1st Defendant has come forward with a defence that there was no passage, to rebut the same, Plaintiffs have taken out Advocate-commissioner. The Advocate-commissioner in his report has noted street running north to south connecting the main road. Advocate-commissioner has observed that there are houses on either side of the suit path and owners of the houses are using the suit path and the suit pathway is the only pathway for the residents. When the Advocate-commissioner has categorically stated that the suit pathway is the only pathway for the residents, lower Appellate court erred in ignoring the material evidence. 26. Advocate-commissioner had noticed deep Well, hand pump, electric post, tamarind tree in the locality. Pointing out the existence of bore well, electric poles, lower Appellate court accepted the contention of the 1st Defendant that bore well and electric poles lying in the suit pathway will improbabilis Plaintiffs right of user. From Exs.C1 and C2, report and plan of the Advocate-commissioner, it is seen that tamarind tree, electric poles, deep bore well and hand pump are only at the edges of pathway and not obstructing the same. While so, lower Appellate court was not justified in observing that existence of electric post, deep bore well and hand pump will improbabilise Plaintiffs case. 27. While so, lower Appellate court was not justified in observing that existence of electric post, deep bore well and hand pump will improbabilise Plaintiffs case. 27. Case of the 1st Defendant is that S T U V is in the middle of the road and Plaintiffs and other residents never enjoyed the same. 1st Defendant has purchased the property under Ex.B1 sale deed dated 30.5.1981. Ex.B2 Patta was also issued in the name of the 1st Defendant. Issuance of Patta seems to have been substantially weighed in the mind of the lower Appellate court to negative Plaintiffs claim of easementry right by prescription. It is to be noted that Ex.B2 Patta must have been issued pursuant to Ex.B1 sale deed. Issuance of Patta would not in any way weaken the evidentiary value of Ex.A11 FMB in which there is a clear mention of suit path. It is pertinent to note that 1st Defendant had not chosen to examine his vendor to substantiate his defence that Plaintiffs and other residents never used the suit property as passage. Pointing out, non-examination of 1st Defendants vendor, trial court has rightly rejected the defence plea. .28. The learned counsel for the 1st Respondent has taken exception to representative capacity of Plaintiff Pazhamalai Pillai who filed the suit. At one stage, it was urged that Pazhamalai Pillai has instituted the suit for his own personal benefit as his property is situated on the southern side. To find out peaceful settlement in the Second Appeal parties were directed to be present. Since Pazhamalai Pillai who filed the suit was dead, .number of villagers/residents of the suit path area were present in the court. All of them stated that they are using the suit path way and it is the only path way available to them. Unfortunately, 1st Respondent / 1st Defendant had not turned up before the Court. 29. Learned counsel for the 1st Respondent nextly contended that if the Plaintiffs are permitted to use S T U V, it will amount to effacing or destroying defence right in his property. Pointing out Sec.17-A of Easements Act, the learned counsel for the 1st Respondent has submitted that easements acquired under Sec.15 cannot be acquired by prescription where a right which would tend to the total destruction of the subject of right or the property on which, if the acquisition were made, liability would be imposed. Pointing out Sec.17-A of Easements Act, the learned counsel for the 1st Respondent has submitted that easements acquired under Sec.15 cannot be acquired by prescription where a right which would tend to the total destruction of the subject of right or the property on which, if the acquisition were made, liability would be imposed. Clause (a) of Sec. 17 is intended to prevent acquisition of an easement by prescript on which by its very nature will cause total destruction of the subject-matter of the right in the servient tenement. The object of the rule is to secure for the owner of such tenement in proper and ultimate user and enjoyment. The expression "total destruction" has been used in this Section in a peculiar sense. It signifies not only total physical destruction but also conveys an idea of that state of the servient tenement where due to the imposition of the burden, it becomes incapable of rendering to the servient owner any such enjoyment as is likely to be secured from its ordinary use. 30. The plea that there cannot be easement by prescription in view of Sec.17-A was not raised in the Courts below. Had it been raised in the written statement and evidence adduced, Plaintiffs would have had opportunity of explaining as to what is the extent of 1st Defendants property and breadth of the road. When such plea was not raised before the Courts below, it is not open to the 1st Respondent / 1st Defendant to raise such a plea in the Second Appeal stage. In the absence of any material, it is not possible to accept the contention that user and enjoyment of the suit path would amount to total destruction of servient tenement. .31. Section 15 of Easements Act, the manner in which easement right by prescription could be acquired. One of the necessary ingredients for acquisition of rights by prescription is that it should have been enjoyed without interruption peaceably for 20 years as of right. It is more clear that Plaintiffs and other villagers have access to the suit pathway as of right for more than 20 years. On the basis of evidence, trial court rightly held that Plaintiffs have established their right of easement by prescription. .Without considering the evidence in a proper perspective, lower Appellate court has chosen to dismiss the suit. It is more clear that Plaintiffs and other villagers have access to the suit pathway as of right for more than 20 years. On the basis of evidence, trial court rightly held that Plaintiffs have established their right of easement by prescription. .Without considering the evidence in a proper perspective, lower Appellate court has chosen to dismiss the suit. When the findings of the trial court was based on evidence, lower Appellate court was not justified in interfering with the findings of the trial court and therefore the Judgment of the lower Appellate court cannot be sustained. 32. In the result, Judgment in A.S.No.15/1994 dated 112. 1994 on the file of Sub-Court, Chidambaram is set aside and the Second Appeal is allowed. Judgment of the trial court in O.S.No.748/1989 dated 12. 1994 on the file of the District Munsif Court, Chidambaram is confirmed. In the circumstances of the case, there is no order as to costs. C.M.P.No.1988/1995: Since confirming the Judgment of the trial court, Plaintiffs are granted permanent injunction, this C.M.P. is closed.