JUDGMENT K. Ramakrishnan, J. 1. The defendants in O.S.No.286/1993 on the file of the Munsiff Court, Wadakanchery are the appellants in S.A.No.622/99, while the plaintiff in O.S.No.285/93 on the file of the same court is the appellant in S.A.No.670/99. O.S.No.285/93 was filed by the appellant herein in S.A.No.670/1999 originally as O.S.605/88 on the file of the Munsiff Court, Chavakkad for permanent prohibitory injunction restraining the defendant who was the original respondent in that appeal in that case from trespassing into the plaint schedule property and cutting open a pathway through the plaint schedule property with following allegations: The plaint schedule property belongs to the plaintiff in that case which she obtained as per partition deed No.1148/82. She was in exclusive possession and enjoyment of the same. The defendant is having property on the west of the plaint schedule property and she is residing there. The property of the defendant and those properties on the north of defendant's property were under the possession of same person and was lying contiguously till the Alumpady - Muthuvattur road. The defendant has got a way towards west of his property so as to reach the Alumpady- Muthuvattur road and he was using that road for his entry and exist to his property. The distance from his property to that road is only 25 meters. Plaint schedule items No.1 was formerly an agricultural land which was gradually reclaimed and made into a paramba. The plaintiff planted some coconut saplings and constructed a house in that property. The defendant on stray occasion, with the permission of the plaintiff used to pass through the plaint schedule property. The property on the east of the plaint schedule was usually being cultivated with blackgram by the plaintiff. None had objected to the aforesaid mode of enjoyment of the property by the plaintiff. The northern portion of the property is used as courtyard and there is a thodu on the east of item No.1. The defendant's property situated on higher level of 4 feet from the property of the plaintiff. Recently he had developed some animosity towards the family members of the plaintiff and he filed O.S.No.502/88 before the Munsiff Court, Chavakad, (which was later transferred to Munsiff Court, Wadakkanchery and renumbered as OS.No.286/1993) alleging a right of way through the plaint schedule property. There was no such way in existence. Recently he had developed some animosity towards the family members of the plaintiff and he filed O.S.No.502/88 before the Munsiff Court, Chavakad, (which was later transferred to Munsiff Court, Wadakkanchery and renumbered as OS.No.286/1993) alleging a right of way through the plaint schedule property. There was no such way in existence. After obtaining interim injunction, he was trying to trespass into the plaint schedule property and attempting to create a pathway. The same was timely resisted by the husband of the plaintiff and the defendant and his people left the place. So she apprehended that he was likely to repeat the same. So she filed the above suit for injunction restraining the defendant and his men from trespassing into the plaint schedule property and creating a pathway through the plaint schedule property. 2. The defendant entered appearance and filed written statement contending as follows: The suit is not maintainable and it was filed without any bona fides. The partition deed mentioned in the plaint is admitted but certain other people apart from the plaintiff are having right over the property. Those facts were suppressed in the plaint with ulterior motive. The property on the west of the plaint schedule was purchased by the defendant as per document No.469/70 from one Bhaskaran and others. Ever since the purchase of the property he is residing there with his family. At the time of purchase, the property of the plaintiff and the defendant were lying contiguously. In the plaint schedule property, there was a pathway having a width of 3 meter and length of 150 meters which was in existence for more than 100 years and it extended from the property of the defendant to Chavakkad-Kunnamkulam road, crossing through the property of the plaintiff, Kalikutty Amma, Devaki Amma and Lakshmi Amma. There was a public tank on the north of the way. It was a motorable road which is being used by the defendant and his predecessor for more than 100 years openly, peaceably without any interruption as of right and thereby they have got right of easement by necessity and also by prescription, as originally the property belonged to Guruvayur Devaswom and thereafter by change of hands it went to several persons and except this pathway there is no other pathway to reach the property of the defendant and it is necessary for the convenient enjoyment of the property. When the plaintiff attempted to demolish the pathway, the defendant filed the suit. There was also some mediation before and the plaintiff's husband assured that they will construct a house only leaving the way free. The plaintiff is also using the same way to reach their property and the plaintiff has no right to destroy the same. Since she attempted to destroy the way on 16.7.1988, defendant filed O.S.No.502/88 before the Chavakkad Munsiff Court for a declaration that he has got right of way which has been described as plaint B schedule in that suit. The allegation that he has got a way through the west to reach Alumpady- Muthuvattur road which is having only a length of 25 meter is not correct. He has no such way. It was recently put up by the neigbours of the defendant and it does not provide sufficient width. The defendant will have to pass through the property of certain third parties to make use of the said way. 3. The allegation that the property was originally a agricultural land and subsequently it was converted into paramba slowly etc. is not correct. It was lying as paramba for long time and the coconut trees in the property were aged more than 60 years. The defendant and his predecessor were using the pathway since long time and there was no impediment for taking the vehicle through the pathway. It is not correct to say that the plaintiff was enjoying the property by raising black gram cultivation which had not been obstructed by anyone. It is not true that the defendant's house and compound are lying at an elevation of 4 feet from the plaint schedule property. The thodu mentioned in the plaint is a small water chal to let out the water from the tank during rainy season. It does not impede the vehicular traffic through the way. It was also contented that the building of the defendant was used by the Health Department, Harijan Welfare Department and also as Congress Office. During occupation of these people, they were taking their vehicle through the pathway in the plaint schedule property. Suppressing all these facts the suit has been filed. The plaintiff had obstructed the pathway and began committing nuisance by leaving filthy articles that prompted the defendant to file the suit mentioned above. During occupation of these people, they were taking their vehicle through the pathway in the plaint schedule property. Suppressing all these facts the suit has been filed. The plaintiff had obstructed the pathway and began committing nuisance by leaving filthy articles that prompted the defendant to file the suit mentioned above. Since the defendant is not trying to put up a new pathway as claimed and their existed a pathway which has been suppressed by the plaintiff, she is not entitled to get injunction as prayed for. So he prayed for dismissal of the suit. 4. The suit O.S.No.286/93 was originally filed before Munsiff Court, Chavakkad as O.S.No.502/88 by the defendant in O.S.285/93 against the plaintiff in that case and three others for a declaration of easement right by prescription and necessity through plaint B schedule pathway and also for injunction restraining the defendants therein from obstructing the peaceful user of the pathway or committing any act of waste with following allegations: Plaint A schedule property was purchased by the plaintiff as per document No.409/70 of Sub Registrar's Office, Kottapady from one Machinkkal Bhaskaran. Since then plaintiff and his family were residing there. Later he obtained purchase certificate from the concerned Land Tribunal in respect of plaint A schedule property. The property on the south and east of A schedule was taken on kanam assignment by the predecessor of defendants 1 and 3. Later they partitioned the property and they are in respective possession of the same. In the said partition, property on the immediate east of plaint A schedule was allotted to the 1st defendant and further east is the property to the 4th defendant and on the south east of that property to defendants 1 and 3. On the south of 4th defendant's property and in between the property of defendants 1 and 3, there is a temple tank and the defendant has no right over the same. The temple tank is used by the public coming for worship to reach Chavakkad-Kunnamkulam public road, which is situated on the east of the plaint schedule property. Plaintiff and his predecessor were passing through the property of the 1st defendant in between the property of the 1st and 4th defendants and then passing through the temple and the temple tank and later crosses the property of the defendants 1 and 3. Plaintiff and his predecessor were passing through the property of the 1st defendant in between the property of the 1st and 4th defendants and then passing through the temple and the temple tank and later crosses the property of the defendants 1 and 3. The said way has got width of 3 meters and length of 75 meters which was described as plaint B schedule. It was used by the plaintiff and predecessor for more than 100 years to reach the house situated in the plaint A schedule property openly, peaceably and without any interruption as of right and thereby he had acquired right of easement by prescription. Further the property originally belonged to Guruvayur Devaswom. Later it was taken on lease by several persons and thereby the persons obtained plaint schedule property acquired right of easement by necessity through the plaint B schedule pathway which is used for reaching Chavakkad-Kayamkulam public road and thereby they have acquired right of easement by necessity also. When the defendants 1 to 3 attempted to reduce the width of the pathway, he filed a complaint to Circle Inspector of Police, Guruvayur and when the husband of the plaintiff tried to destroy the plaint B schedule pathway, the plaintiff filed the suit for declaration and injunction. So he prayed for allowing the suit. 5. The defendants filed joint statement denying the allegations and also contending that the suit was not maintainable and it was filed with false allegations with ulterior motive. They almost reiterated the contention raised by the 1st plaintiff in O.S.No. 285/93 denying the right of the plaintiff pass through the plaint B schedule property. They have contended that there was no such pathway and it was originally a paddy field and it was gradually reclaimed and coconut saplings were planted. There is another pathway to reach the plaint A schedule property along the west of plaintiff's property which will reach Alumpady-Muthuvattur public road. Neither the plaintiff nor his predecessors used the plaint B schedule pathway as claimed. At no point of time the property of the plaintiff and defendants were under one enjoyment. The plaintiff has not acquired any right of easement either by prescription or necessity through plaint B schedule pathway. No such way as claimed was ever in existence. The description of plaint A and B schedule property is not correct. So they prayed for dismissal of the suit. The plaintiff has not acquired any right of easement either by prescription or necessity through plaint B schedule pathway. No such way as claimed was ever in existence. The description of plaint A and B schedule property is not correct. So they prayed for dismissal of the suit. 6. On the basis of the pleadings, the following issues were framed by the trial court in O.S.No.285/93: 1. Whether the defendant is entitled for the easement of necessity and easement by prescription rights over the plaint schedule property ? 2. Whether the plaint A schedule property was a paddy land as alleged in the plaint ? 3. Whether there is a motorable way for ingress and egress to the defendant's property through the plaint schedule property ? 4. Whether the description of the plaint schedule property is correct ? 5. Whether the plaintiff has got any cause of action ? 6. What order as to reliefs and costs ? 7. On the basis of the pleadings in O.S.No.286/93 the trial court framed the following issues: 1. Whether the plaint A and B schedule properties can be identified? 2. Whether the plaintiff has got any right of easement through plaint B schedule property? 3. Whether the plaintiff is entitled to get injunction as prayed for ? 4. Whether the plaintiff is entitled for a declaration prayed for ? 5. Reliefs and costs ? 8. Both these cases were transferred to Munsiff Court, Wadakkanchery and thereafter it was renumbered as mentioned above. The joint trial was allowed as per order in I.A. No.2465/90 and evidence was recorded in O.S.No.286/93, the suit was filed at the earliest point of time and having a more comprehensive scope for adjudication. PW1 to 5 were examined and Exts.A1 to A5, X1 and X2 and C1 to C4 were marked on the side of the plaintiff. The husband of the 1st defendant in O.S.No.286/93 and plaintiff in O.S.No.285/93 was examined as DW1 and Exts.B1 to B5 were marked on their side. 9. After considering the evidence on record, the trial court came to the conclusion that there existed no motorable pathway as claimed having width of 10 feet as claimed. The husband of the 1st defendant in O.S.No.286/93 and plaintiff in O.S.No.285/93 was examined as DW1 and Exts.B1 to B5 were marked on their side. 9. After considering the evidence on record, the trial court came to the conclusion that there existed no motorable pathway as claimed having width of 10 feet as claimed. But the court below came to the conclusion that there existed a pathway having a width of 5 feet commencing from the road on the east of plaint A schedule property which was identified by the commissioner in Exts.C2 and C4 plan. The courts below also came to the conclusion that the property originally belonged to Guruvayur Devaswom in jenmom and thereafter obtained by several persons including the predecessor of the plaintiff and defendant and thereby the plaintiff and his predecessor acquired right of easement by necessity and also found that this way is being used by the plaintiff and predecessor since long time openly, peaceably and without any obstruction as of right with the knowledge of the defendants and thereby he acquired right of easement by prescription and also granted a declaration that he is entitled to get right of user of the pathway by easement by prescription and also granted a decree for permanent prohibitory injunction restraining the defendants in O.S.No.286/93 from committing any act of waste or reducing the width of the pathway or interfering with the right of user of the pathway by the plaintiff in that suit to the extent mentioned above and decreed the suit accordingly. Since that suit was decreed, the court below dismissed O.S.No.285/93 filed by the plaintiff in that case. 10. Dissatisfied with the same, plaintiff in O.S.No.285/93 filed A.S.No.151/95 before the District Court, Thrissur and defendant in O.S.No.286/93 filed O.S. No.152/95 before the District Court, Thrissur and thereafter these cases were made over to Sub Court, Thrissur where the same were renumbered as A.S.No.47/98 and 48/98 respectively. Later the learned Sub Judge by a common judgment dismissed the appeals concurring with the findings of the court below. Dissatisfied with the same, the present second appeals have been preferred by the appellants respective plaintiff and defendants in the courts below. 11. Later the learned Sub Judge by a common judgment dismissed the appeals concurring with the findings of the court below. Dissatisfied with the same, the present second appeals have been preferred by the appellants respective plaintiff and defendants in the courts below. 11. When the appeal was admitted, this Court has accepted the common substantial question of law raised in both the cases, which read as follows: i. Whether the courts below are justified in finding that the plaintiff is entitled to have right of easement of necessity through the plaint B schedule property especially when it has come out in evidence that there is an alternate pathway ? Ii. Whether the plaintiff is entitled to claim a right of easement of necessity in the passing of any evidence to prove that the properties of the plaintiff and defendants originally belonged under a single ownership ? Iii. In the absence of any evidence to show a severance of the tenement, can a decree for easement of necessity be granted ? Iv. Is the plaintiff entitled to a decree declaring his right of easement by prescription over the plaint schedule property, in the facts and circumstances of the case pleaded and proved ? V. Whether the courts below have considered the evidence adduced in the case, in its proper perspective ? Vi. Whether the courts below are justified in allowing the suit, in the facts and circumstances of the case ? 12. During the pendency of the appeal, the sole respondent died and 2nd respondent was impleaded as his legal heir as per order in I.A. No.329/17 in S.A.No.622/99 and as per order in I.A. No.334/17 in S.A No.670/99. 13 Heard Sri.Roy Thomas (Muvattupuzha) representing Sri.K.P.Dandapani learned Senior Counsel appearing for the appellant in both the cases and Sri.S.Sujin, learned counsel appearing for the additional 2nd respondent in both the cases. 14. The learned counsel for the appellant submitted that the courts below were not justified in granting a declaration of easement of necessity and prescription as both are distinct and different and mutually exclusive and they will not go together. 14. The learned counsel for the appellant submitted that the courts below were not justified in granting a declaration of easement of necessity and prescription as both are distinct and different and mutually exclusive and they will not go together. He also argued that in order to grant a decree for easement of necessity, it must be proved that originally both the properties belong to a single owner by virtue of severance of status the right of way arises as of necessity without which the dominant tenement cannot be conveniently enjoyed. Such an evidence is lacking in this case. Further there is no proper pleading to the effect that the way has been used openly, peaceably and without any objection uninterruptedly for more than 20 years as an easement, so as to claim right of easement by prescription. The evidence of Pws 1 to 5 are not sufficient to prove this fact. In the absence of such specific pleadings, the courts below were not justified in granting a decree of declaration of easement by prescription, as it is precarious right through the property of the another which has to be strictly pleaded and proved. He had also argued that the evidence of PWs2 to 5 will go to show that it was an open land and there was no possibility of user of the property being objected by the owners at that time and such a user cannot be treated as open uninterrupted as of right user, so as to claim right of user by prescription. Further the court below disbelieved the case of the plaintiff and Pws 2 to 5 that there existed a motorable way of 3 meters but only found that there existed only a way of 5 feet and without properly identifying that pathway no decree ought to have been given by the courts below. Further the courts below oughts to have dismissed the suit filed by the respondent and decreed the suit filed by the plaintiff in O.S. 285/93. He had relied on certain decisions in support of this case which can be discussed later. 15. Further the courts below oughts to have dismissed the suit filed by the respondent and decreed the suit filed by the plaintiff in O.S. 285/93. He had relied on certain decisions in support of this case which can be discussed later. 15. On the other hand, learned counsel to for the respondent submitted that in the plaint filed by the respondent and also in the written statement filed by him, he had specifically mentioned the property originally belonged to Guruvayur Devaswom and the tharwad was on Kanam right and thereafter it was sold to several persons and thereby right of easement by necessity arises. He had also argued that it was specifically pleaded in the pleadings in the suit filed by the respondent and also suit filed by the 1st appellant that the way was being used openly, peacefully and without any obstruction as of right for more than 100 years by himself and his predecessors and thereby they acquired a right of easement by prescription and as such courts below were perfectly justified in decreeing the suit filed by the respondent and dismissing the suit filed by the 1st appellant. Since it is a concurrent finding, that does not call for any interference, as the findings were recorded on the basis of the facts. Since the 1st appellant had suppressed the fact that there existed a pathway as found by the commissioner in both the cases, the court below was perfectly justified in dismissing the suit filed by the 1st appellant for suppression of material facts and she did not come to court with clean hands. 16. For the purpose of convenience sake, I am referring to the status of the parties as mentioned in O.S. No.286/93 in the lower court as it is a substantive suit and since both these appeals arose out of common judgment of both the trial court and the 1st appellate court on the basis of common evidence, I am disposing of both the appeals by common judgment. 17. It is an admitted fact plaint A schedule property in O.S. No.286/93 of Munsiff Court, Wadakkanchery belongs to the plaintiff in that case, who is the respondent in both the appeals. 17. It is an admitted fact plaint A schedule property in O.S. No.286/93 of Munsiff Court, Wadakkanchery belongs to the plaintiff in that case, who is the respondent in both the appeals. It is also an admitted fact that the properties on the east through which the plaintiff in that case is claiming easement right belong to defendants 1, 3 and 4 and this fact is also not disputed. According to the plaintiff in that suit, there was a motorable pathway having a width of 3 meter starting from plaint A schedule property and it passes through the property of defendants 1, 3 and 4 and reaches Chavakkad-kayamkulam public road. According to the plaintiff in that case, originally the property belonged to Guruvayur Devaswom and it was obtained by Padippurakkal tharwad on kanam right and thereafter it was given to several persons and thereby they acquired a right of easement by necessity and also they have got a case that the way is being used by the plaintiff and his predecessors for more than 100 years, openly peacefully and without objection for more than 100 years and thereby they acquired a right of way by prescription also. When the commissioner was inspected the property who submitted Exts.C1, C2, C3 and C4 report and plan. They did not find the existence of any pathway having a width of 3 meters as claimed by the plaintiff as B schedule to that suit. The courts below also came to the conclusion relying on Exts.C1 and C2 that at the point B3, B4 and B7, it was having a width of 5 feet and at the point B3 and B7 also having it was a width of 5 feet at the beginning point from where the alleged way starts from the property of the plaintiff it was having a width of only 4 feet and at the entry point namely from Chavakkad-Kunnamkulam road, it was having width of 4 feet and 3 inches. In Exts.C3 and C4 it was shown much lesser width as well. The courts below had disbelieved the evidence of Pws 2 to 5 to the extent that it can be used for the purpose of vehicular traffic and vehicles were taken through that portion. In Exts.C3 and C4 it was shown much lesser width as well. The courts below had disbelieved the evidence of Pws 2 to 5 to the extent that it can be used for the purpose of vehicular traffic and vehicles were taken through that portion. So under such circumstances, the courts below have concurrently come to the conclusion that the way having a width of 10 feet having motorable convenience as claimed by the plaintiff was not available and such a way has not been enjoyed either by the plaintiff or by his predecessors and to that extent the claim of the plaintiff was not accepted by the courts below. 18. As regards the right of way by prescription is concerned the plaintiff has to prove that there existed a pathway and that is being used by the plaintiff openly, peacefully, uninterruptedly as of right as an easement for more than 20 years for the purpose of claiming right of easement through the property of another by prescription. It is true that the right if any exercised by the predecessor prior to the acquisition of the property by the plaintiff if it is proved can also be tacked on for the purpose of computing the period of 20 years. Admittedly, the plaintiff purchased the property only in the year 1970 evidenced by Ext.A1 and he obtained purchase certificate only in the year 1976 evidenced by Ext.A3. The suit was filed originally before Munsiff Court, Chavakkad in the year 1988. So as far as plaintiff alone is concerned, it cannot be said that he had acquired right of easement by prescription as he came into possession of the property in the year 1970 by virtue of Ext.A1. But if he is able to establish that the right was being used by his predecessor even prior to 1970 as an easement openly, peacefully and without any obstruction from the owner of that property, then probably remaining period required for completing the period of 20 years can be tacked on for that purpose. For which the plaintiff has to establish by evidence this facts. 19. For which the plaintiff has to establish by evidence this facts. 19. The evidence of PW2 who was an employee of Health Department whose office was housed in a house in plaint A schedule property deposed that she was working there during 1960 till she was transferred from there and they were using the way through the property of the defendants to reach the office. But she had also stated that their vehicle also used to taken through that property to reach the office. But the slanting portion mentioned in the commissioner's report slanting from the property of the plaintiff to the property of the 1st defendant where the alleged pathway starts. There is no possibility of vehicle being taken into the property as the width of the slanting portion is only less than 5 feet. Further it was deposed by her that at the time when the office was functioning there, the property through which they used to pass was an open land an it is not possible for her to ascertain the width of the pathway or location of the pathway as used by them. She has no idea about the user of the pathway or the manner of the user after she was transferred from there. 20. The same is the evidence of Pws 3 and 4 as well. They were also examined for the purpose of proving that they were also in possession of the house in plaint A schedule property as employees of the Social welfare Department and also of Health Department. They also stated that they cannot identify the pathway exactly and they may not be able to say what was the width of the pathway as well. They also stated that it was an open land and they were passing through the property. It is quite natural that in the open land, when people pass through normally the people will not object but that will not give them any right as such. The evidence of PW5, the son of the predecessor of the plaintiff, is also not helpful to prove the right exercised by his predecessor as he had no knowledge about the same. None of these witness had deposed that the user of the pathway claimed by them was as of right openly, publicly and without any objection from any others to the knowledge of the owner of the property. None of these witness had deposed that the user of the pathway claimed by them was as of right openly, publicly and without any objection from any others to the knowledge of the owner of the property. It was also brought out in evidence that there was a temple tank situated on the east of 1st defendant's property and the people come to the temple used to go that tank through the disputed pathway as well. So under such circumstances, it cannot be said that the evidence of either the plaintiff or the witnesses examined on his side namely Pws 2 to 5 is sufficient to come to the conclusion that the way has been used by them openly, peacefully without any objection as of right as an easement so as to claim right of easement by prescription under Section 15 of the Easement Act. 21. Further the evidence of PW1 will go to show that when 1st defendant constructed the houses, he had tried to obstruct the pathway and due to the intervention of mediators, the construction of the house was shifted. Further it will be seen from the evidence of PW1 that the user of the pathway by him was objected by the 1st defendant on several occasions. So that shows that after he purchased the property in 1970, it cannot be said that the alleged pathway was used by him openly, peacefully and without any objection or without interruption as an easement so as to claim easement by prescription. 22. In the decision reported in Joy Joseph and others v. Jose Jacob alias Thankachan, 2010 (4) KHC 167 it has been held that: The right of easement can be acquired either by prescription or by necessity, but both cannot go together. 23. Further in the same decision it has been held that: To succeed in a claim for prescriptive right of easement, the claimant has to show that he has open, continuous, hostile and uninterrupted use of the pathway for a period of 20 years. That was a case where pathway itself was created by document in 1971 and the suit was filed in 1987. So it was held that there is no possibility of right of being claimed by prescription. 24. That was a case where pathway itself was created by document in 1971 and the suit was filed in 1987. So it was held that there is no possibility of right of being claimed by prescription. 24. Further in the decision reported in Kallen Devi and Others v. Kizhakkekortoth Raghavan 2012(2)KHC 443 it has been held that: The pleas of prescriptive right of easement and easement of necessity are contradictory and inconsistent with each other and both cannot co-exist in a suit. Even assuming that the plaintiff is entitled to take inconsistent pleas, at the time of evidence he has to elect from one among them. 25. Further in the same decision it has been held that: The easement being a precarious right, the pleadings should be precise and definite. Mere statement that the pathway in question is absolute necessity for plaintiff is far from satisfactory. In the absence of averments regarding severance of tenement and the origin of easement of necessity, no relief can be granted under the Section 13 of the Indian Easement Act. 26. So it is clear from the above two decision that easement of necessity and prescription will not go together and the plaintiff has to elect one among them in order to claim the relief. Further in order to claim easement of necessity, mere statement that at one point of time the properties were under common owner alone is not sufficient and it must be specifically mentioned as to when the severance has taken place and the origin of easement of necessity arose as well. Such a pleading is absent in this case. So under such circumstances, the courts below were not justified in granting a decree for declaration that the plaintiff has established that he is entitled to claim a right of easement by necessity and granting a declaration to that effect is unsustainable in law and the same is liable to be set aside and I do so. 27. In the decision reported in Ibrahimkutty v. Abdul Rahumankunju, 1992 (2) KLT 775 : 1992 (2) KLJ 468 it has been held that: Easement is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. 27. In the decision reported in Ibrahimkutty v. Abdul Rahumankunju, 1992 (2) KLT 775 : 1992 (2) KLJ 468 it has been held that: Easement is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleading should be precise. That was a case where though the defendant had claimed different kind of easement but he had not asked for particular type of easement and the matter has been remitted for fresh disposal for the purpose of ascertaining the nature of easement claimed by the plaintiff by filing proper amendment application. 28. In the decision reported in Cherootty @ Balan v. Velayudhan Nair, 1998 (1) KLJ 479 : 1998 (1) KLJ 479 it has been held that, Under Section 15 of the Easement Act, uninterrupted user, for 20 years, as of right, peaceably and openly must be made out. The plaintiff was using B schedule it can only be permissive. It is a common feature in Indian Villages that people generally pass over the ridges between two paddy fields. Their right of way only be permissive. There is no evidence to hold that he is enjoying B schedule ridge as of right for a continuous period of 20 years against the interest of the true owner. In the absence of such evidence to prove the necessary ingredients under Section 15 of the Act, plaintiff cannot claim easement by prescription. That was a case where right of easement was claimed through ridges along the paddy fields. But though the defendant in the case had a case that it was originally a paddy field later it was reclaimed but it will be seen from the documents produced that it was reclaimed long ago and it was not a paddy field for long time. So the dictum laid down in the above decision is not factually applicable to the facts of the case. 29. In the decision reported in Maniyan Krishnan v. Nanukuttan, 1986 KLT 203 , a single Bench of this Court has held that, That easement of necessity arises on the severance of tenements. The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant. 29. In the decision reported in Maniyan Krishnan v. Nanukuttan, 1986 KLT 203 , a single Bench of this Court has held that, That easement of necessity arises on the severance of tenements. The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant. Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. An easement of necessity arises where normally both the dominant and servient tenements have been in common ownership so that the creation of an easement by implication of law may be said to be the outcome of the former jointness of the two tenements. The disposition which causes a cessation of the common ownership that gives rise to the creation of an easement, may be of either tenement, or a simultaneous disposition of both tenements. The plaintiff has no case that both the servient and dominant tenements were in common ownership and that by a disposition there was cessation of that common ownership. In view of this fundamental fact, the plaintiff cannot sustain the claim of an easement of necessity. 30. Further in the same decision the ingredients to be proved under Section 15 of the Easement Act to claim easement by prescription were also discussed which reads as follows: The following conditions should exist before an easement can become absolute by prescription. (1) There must be a pre- existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of 20 years and (7) the enjoyment for 20 years must have been without interruption. To establish the claim under S.15 of the Act, continuous user for 20 years as of right to do the act complained of in assertion of a title, peaceably and openly must be made out. To establish the claim under S.15 of the Act, continuous user for 20 years as of right to do the act complained of in assertion of a title, peaceably and openly must be made out. The user or enjoyment of an alleged right must be shown to have been "as of right", the user as of right, having been enjoyed nec vi nec clam, nec precario (neither as the result of force, secrecy, or evasion) nor as dependent upon the consent of the owner of the servient tenements. Consent or acquiescence on the part of the servient owner lies at the root of prescription and a grant cannot be presumed from long use without his having had knowledge or at least the means of knowledge. He cannot be said to acquiesce in an act enforced by mere violence, or in an act which he has no knowledge actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes, or in return for recurrent consideration. In substance, it means that the enjoyment should be without violence, without stealth and without permission. The importance is that the user must be peaceable, open and non-permissive. 31. In the decision reported in Raveendran v. Lohithakshan, 2017 (2) KLT 865 : 2017 (2) KLJ 449 a Single Judge of this Court has held that: In order to grant reliefs of injunction in respect of pathway on the basis of easement, there should be a plan having sufficient measurement showing the actual lie of the property, and the existence of the pathway prepared by a competent surveyor. In the absence of any such plan, a decree cannot be passed in terms of the plaint. 32. But it is otherwise held in several decisions what is required is only a plan by the commissioner which is sufficient to identify the existence of the pathway as claimed by the plaintiff, so as to ascertain as to whether such a way is in existence and whether such a way can be identified so as to grant a relief of injunction. In this case though in Ext.C2 commissioner's plan showing the existence of pathway, that did not tally with the descriptions of the pathway mentioned in plaint B schedule property. 33. In this case though in Ext.C2 commissioner's plan showing the existence of pathway, that did not tally with the descriptions of the pathway mentioned in plaint B schedule property. 33. Further in the same decision it has been held that: Suppression of existence of alternate pathway is not a ground to disallow claim for a right by way of easement by prescription provided the plaintiff was able to establish that he or she had acquired right of way by prescription by proving the ingredients provided under Section 15 of the Easement Act. Probably existence of pathway may be helpful to disallow relief of easement by necessity not by easement by prescription. 34. It is clear from the decisions cited supra , it is clear that in order to get a decree for declaration of easement by prescription, the plaintiff must prove that (1) There must be pre-existing easement which must have been enjoyed by the dominant owner (2) The enjoyment must have been peaceable (3) the enjoyment must have been as an easement (4) the enjoyment must have been as of right (5) the right must have been enjoyed openly (6) the enjoyment must have been for a period of 20 years and (7) the enjoyment for 20 years must have been without interruption. 35. Further it is seen from the evidence of Pws 2 to 5 it cannot be said that the alleged way was an ascertainable way as claimed by the plaintiff and it was enjoyed in that fashion as an existing easement as of right as an easement for more than 20 years openly, peaceably and without any interruption as such. None of these things were spoken to by any of these witnesses. Even assuming that some persons have crossed the property of the defendant to reach a property as a short cut without any intention to use the same as an easement, then it cannot be said that such a user is as of right as an easement hostile to the interest of the owner of the property. Even assuming that some persons have crossed the property of the defendant to reach a property as a short cut without any intention to use the same as an easement, then it cannot be said that such a user is as of right as an easement hostile to the interest of the owner of the property. If the previous persons who have said to have enjoyed the way as an easement are not in a position to locate or identify the pathway or give description of the nature of the pathway used by them, then it cannot be said that the pathway claimed by the plaintiff was an ascertainable one and has been used by them continuously and such a pathway has been used by the plaintiff also in continuation of the user as an easement as of right etc. But such an evidence is lacking in this case. 36. The commissioners have categorically stated that there was no pathway in existence as claimed by the plaintiff as B schedule. Further courts below concurrently found that there was no possibility of existence of such pathway having motorable access having a width of 10 feet as claimed by the plaintiff as well as the witnesses examined on his side to prove this fact. So under such circumstances, it cannot be said that if such an evidence is lacking to prove the previous user by the person in occupation as an easement to tack on that user to claim the benefit to the present plaintiff so as to claim the right of easement by prescription. 37. Admittedly the plaintiff has come into possession of the property only in the year 1970 as per Ext.A1 document and even from the evidence, it is clear that he was not using the pathway peaceably as of right without any obstruction. Even according to him, obstructions have been caused and that was removed under the intervention of mediators. If that being the case it cannot be said that even the user by the plaintiff from 1970 was peaceful, open uninterrupted enjoyment of the right so as to claim easement by prescription. Even according to him, obstructions have been caused and that was removed under the intervention of mediators. If that being the case it cannot be said that even the user by the plaintiff from 1970 was peaceful, open uninterrupted enjoyment of the right so as to claim easement by prescription. These aspects have not been properly appreciated by the courts below before coming to the conclusion that the evidence adduced on the side of the plaintiff is sufficient to establish the existence of the pathway though not claimed by the plaintiff but to the extent of 5 feet and granting a relief of declaration of easement by prescription to that extent is unsustainable in law. 38. Normally the concurrent findings of the courts below on facts regarding this aspect cannot be interfered at the second appellate stage unless it is not perverse. But in view of the discussions made above, it is clear that the legal aspect have not been properly appreciated by the courts below before coming to such a conclusion and granting the relief of declaration of easement right of way by prescription in favour of the plaintiff that too for a lesser extent not for the extent claimed by the plaintiff in the plaint are unsustainable in law and so same are liable to be set aside. So the decree and judgment passed by the courts below declaring that the plaintiff has established the right of way by easement by prescription to the extent of 5 feet as found by the commissioner in Ext.C2 plan and he is entitled to get declaration to that effect and consequential injunction granted against the defendants from obstructing the pathway are set aside. 39. In view of the fact that this Court has found that the plaintiff in O.S.286/93 has failed to prove that he is entitled to get relief of declaration of easement by necessity and by prescription and he is not entitled to get injunction as prayed for, then the dismissal of the suit O.S.No.285/93 filed by the appellant in S.A.No.670/99 is unsustainable in law and the same has to be interfered with. The apprehension of the plaintiff in that case was that the defendant was trying to cut open a pathway of motorable width as claimed by him in O.S. No.286/93 which was not in existence and it cannot be said to be without any bonafides as found by the court below, merely because no attempt of such cutting open was not seen by the commissioner at site and dismissing the suit on that ground is unsustainable in law in view of the conduct of the defendant in that case that he was claiming a right of way 10 feet by width which was not there in existence. So under such circumstances, the courts below were not justified in dismissing the suit and should have granted a relief of injunction as prayed for. 40. Both the second appeals are allowed the decree and judgment passed in O.S. No.286/93 of Munsiff Court, Wadakkanchery as confirmed in A.S.48/98 of Sub Court, Thrissur are set aside and suit is dismissed as the plaintiff has failed to prove the ingredients to get the relief. 41. S.A.670/99 is allowed and the decree and judgment passed by the courts below in O.S.285/93 confirmed in A.S. No.47/98 of Sub Court, Thrissur dismissing the suit are set aside and the suit is decreed and the respondent or his men or his legal representatives are hereby restrained from trespassing into the plaint schedule property therein and cutting open a pathway through the plaint schedule property. Considering the circumstances of the case, parties are directed to bear their respective costs in both the appeals. Registry is directed to communicate this judgment to the concerned court and send back the records to the court below at the earliest.