JUDGMENT : The appellants in the appeal have called in question the judgment and decree passed by learned District Judge, Jagatsinghpur in R.F.A. No. 19 of 2012. 2. These appellants as the plaintiffs have filed C.S. No. 83 of 2007 in the court of learned Civil Judge (Jr. Division), Jagatsinghpur. The suit having been dismissed, they had carried the first appeal which has also been dismissed. 3. The case of the plaintiffs is that the suit land under ‘Bagayat’ Kisam stands recorded jointly in the name of the defendants. The plaintiff no. 1 to 3 are the recorded owners in possession of the land under plot No. 146 measuring Ac. 0.17 decimals; plot no. 148 measuring Ac.0.20 decimals and plot no. 155 measuring Ac. 0.019 decimals under Khata no. 160 of village Bandilo. They being brothers claim to have 5 annas 4 pais share each over the same which is said to have been so noted in the record of right. It is stated that the land covered under plot no. 146 and 145 are the homestead and land under plot no. 148 is used as ‘Gharabari’. Plaintiff no. 4 and 5 are the sons of plaintiff no. 1, whereas plaintiff no. 6 and 7 are the sons of plaintiff no. 2 and 3 respectively. It is stated that plaintiff no. 8 had purchased the land under plot no. 147 to an extent of Ac. 0.01 decimals from Sapani Bhoi, Bipin Bhoi and Aparti Bhoi by registered sale-deed dated 23.02.1998. The plaintiff no. 9 and 10 are the sons of plaintiff no. 8. Plaintiff no. 11 claims to have purchased land under plot no. 137 of an area of Ac. 0.08 decimals from one Lingaraj Bhoi by registered sale-deed dated 25.08.2003. The land under plot no. 330 is said to have become a part of river embankment and used by public including the parties to the suit to approach the main road. It is their further case that the land covered under plot no. 137, 137, 145, 146, 147 and 155 are in a compact block and public road runs over plot no. 133 which is connected to the land under plot no. 330 and these plaintiffs who are the owners of above land have no alternative way except through the suit land to approach the main public road. 137, 137, 145, 146, 147 and 155 are in a compact block and public road runs over plot no. 133 which is connected to the land under plot no. 330 and these plaintiffs who are the owners of above land have no alternative way except through the suit land to approach the main public road. The suit land thus is said to be the only path for those lands owners to the came to the public road, which was also being used by their vendors. They also say that a well is there over the suit land which the plaintiffs are using as was being used by their vendors for so many years. In view of all these, the plaintiffs claim that though suit land stands recorded in the name of the defendants, they being the owners of land under plot nos. 137, 147, 146, 148 and 155 have been using the same as aforesaid. They filed the suit apprehending infringement of in their exercise of their right of easement and user of the suit land as path way. 4. The defendants have raised the plea of maintainability; the suit land being not properly described as required under the provision of order-7 rule 3 of the Code of Civil Procedure. It is their specific case that one Bhikari Bhoi was the owner in possession of the suit land who had transferred the same in favour of their father Kanhei Bhoi, by registered sale-deed in the year, 1951 followed by delivery of possession. The defendants stated that they have their residential house over the suit plot and have been residing therein with their family members. It is stated that during consolidation operation, no such claim of right of easement has been advanced by the plaintiffs. They have denied the existence of any passage over the land under plot no. 136. It is specifically stated, there is no linkage between land under plot no. 146 and 155 with the suit land as also with the land under plot no. 137 which intervenes the land under plot no. 146, 155 of the suit land. It is their case that the plaintiff no. 11 purchased the land under plot no. 137 only in the year 2003. They further state that plaintiff no. 146 and 155 with the suit land as also with the land under plot no. 137 which intervenes the land under plot no. 146, 155 of the suit land. It is their case that the plaintiff no. 11 purchased the land under plot no. 137 only in the year 2003. They further state that plaintiff no. 1 to 11 are in possession of the land under their respective plots and they have their separate access from those lands to the main road. The existence of any passage or its user over the suit land or over the land under plot no. 136 have been very much denied. 5. The trial court in total framed five issues. Upon analysis of evidence, the trial court has recorded the finding against the plaintiffs that they have failed to prove as to over which particular portion of land, the passage that they claim situates or runs. The trial court has found the description of the suit to be vague. 6. The plaintiffs being thus non-suited had carried the first appeal questioning the said dismissal of their suit refusing to grant the relief as prayed for. The main contention of the plaintiffs before first appellate court was for remand of the suit for its fresh disposal in accordance with law framing a specific issue with regard to the maintainability in view of the challenge as to the vagueness of the description of the subject matter. The rival contention of the defendant in the said appeal has remained that since as per the settled law if the materials before the appellate court are available on that aspect of the case and parties being well aware have led evidence, appellate court should make all endeavours first to decide that issue and that said course has to be adopted. This contention having been accepted, the first appellate court has gone to decide the lis by finding that the plaintiffs have failed to establish their right of easement of pathway over the suit land by leading acceptable evidence with proper foundation in the pleadings. 7. The lower appellate court in view of the above contentions has sat over to examine as to whether in the absence of specific issue, the evidence on record are sufficient to pronounce the judgment answering that issue without remanding the suit to the trial court. 7. The lower appellate court in view of the above contentions has sat over to examine as to whether in the absence of specific issue, the evidence on record are sufficient to pronounce the judgment answering that issue without remanding the suit to the trial court. The appellate court going to answer the main issue has found the pleading and evidence to be insufficient to answer about the existence of passage over the suit land as projected by the plaintiffs. It has found that the plaintiffs have failed to establish through acceptable evidence that they have been using any part of the suit plot as passage for 20 years and more. Having said so, the first appellate court has dismissed the appeal. It appears that for the purpose of finding out the answer to the crucial issue regarding the right of easement as claimed by the plaintiff over the suit land, the first appellate court has taken note of the pleadings and then viewing the evidence of P.Ws. 2, 3, 4 and 5 and relying upon the ratio of the decision of this Court in case of Duryodhan Samal & Others Vs. Padma Charan Biswal & Others, 80 (1995) CLT 656, the claim of right of easement of the plaintiffs over the suit land has been found to be unsustainable both on fact and law. 8. Learned counsel for the appellants placing the relevant portions of the judgment of the lower appellate court as also the pleadings and evidence corresponding thereto, submits that the following substantial questions of law arise in the case for admission of this Second Appeal:- 1. Whether the lower appellate court’s conclusion in negating the claim of right of easement of the plaintiffs is per se untenable being contrary to its own finding at para-9 of the judgment? 2. Whether the appreciation of evidence by the lower appellate court on the claim of right of easement suffers from the vice of perversity and consequentially, the conclusion since it has failed to take note of the available evidence on record that the plaintiffs are having no alternative facility of ingress and agress to their property other than the suit path? 9. 9. In order to address the submission of learned counsel for the appellant so as to say whether there arises any substantial question in the second appeal meriting its admission, it is first felt necessary to go little deep into the pleadings in the plaint. At para-8 of the plaint, it has been stated that the vendor/predecessors of plaintiff no. 1 to 3 had been using the suit land as their only path way to come to plot no. 133 and to main road i.e. plot no. 330 through the suit land from their plot no. 146, 147, 148 and 155. It is next stated that the vendors/predecessors of the plaintiffs used the path way as of right with the knowledge of the defendant and their predecessors and they having admitted a suit land as the only path way, thus never raised objection in the peaceful user of the same. It is however next stated that the plaintiffs have thus acquired right of easement over the suit land by prescription in continuously using the same throughout the years for more than 20 years and for about 50 years through their predecessors. Above is the details of the case set up by the plaintiff in claiming a decree for declaration of their right of easement over the suit land and its user as pathway. 10. As it appears from the aforesaid pleadings at one point of time it is said that the suit land is being used by the plaintiffs as the only path way to come to the road by further crossing land under plot no. 133 and to main road i.e. on plot no. 330. It is again said that such user is as of right to the knowledge of the defendants and their predecessors who have never raised objection. Lastly, it is stated that the right of easement over the suit land has been acquired by prescription in view of the continuous exercise of the same for a long period of time. 11. Easement of necessity and quasi-easement find place in section 13 of the Indian Easements Act, 1982 (in short called ‘the Act”). Where an easement of necessity is claimed, it is for the claimant to establish that the demise would be utilized for the easement. This is a positive obligation on the plaintiff. 11. Easement of necessity and quasi-easement find place in section 13 of the Indian Easements Act, 1982 (in short called ‘the Act”). Where an easement of necessity is claimed, it is for the claimant to establish that the demise would be utilized for the easement. This is a positive obligation on the plaintiff. It is wholly in appropriate for the court to enforce a right of way under section 13 of the Act because it is more convenient and commercially beneficial to the claimant. Where property is conveyed, which is so situate relatively to that vary from which it has been severed that it cannot be enjoyed without particular privilege in or over land of the grantor, the privilege is what is called as easement of necessity, and the grant of it is implied and passes over without any express words. The word ‘necessary’ must be construed in its ordinary sense. A person cannot claim a right of way on another land on the ground that it is most convenient means of access. Such an easement of necessity can only arise when the property cannot be used at all and not where it is merely necessary to the reasonable enjoyment of the property. Expression “necessity” clearly implies that it is not a rule of convenience. It is only when a certain property which may be described as dominant tenement, cannot be enjoyed without the exercise of certain privileged or burden on property of another called servient tenement that an easement of necessity can arise. The contours of this doctrine of implied grant to create an easement of necessity are well delineated in the section itself. An easement to 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 former jointness of two tenements. In these cases of claim of easementary right which is a part of the ownership right, since declaration is to the great hardship and adverly affects the owner, the pleadings have to be there by way of laying down proper foundations which would then seek the proof for success of the claim. 12. In these cases of claim of easementary right which is a part of the ownership right, since declaration is to the great hardship and adverly affects the owner, the pleadings have to be there by way of laying down proper foundations which would then seek the proof for success of the claim. 12. The easement of necessity is entirely different from easement by prescription.-A way for necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as to the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negatives the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use. For claiming easement of necessity it must be shown that the land which has been conveyed is surrounded on all sides by land belonging to third persons and the only way of access is over the contiguous land of the grantor. All these are not even whispered nor even can be remotely inferred from the pleadings as laid. 13. For acquiring easement by prescription one has to plead and prove that the right claimed must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed. The right must have been enjoyed peaceably, openly, as of right, as an easement, without interruption for twenty years or more. The words “as an easement and as of right” in Sec. 15 of the Act clearly indicates that it is a restriction in favour of the owner or occupier of immovable property of the rights of ownership of the immovable property of another owner. The restriction cannot be built up or asserted without consciousness of the rights which are restricted. The words “as an easement and as of right” in Sec. 15 of the Act clearly indicates that it is a restriction in favour of the owner or occupier of immovable property of the rights of ownership of the immovable property of another owner. The restriction cannot be built up or asserted without consciousness of the rights which are restricted. If the right that a person is exercising is not with the consciousness that he is restricting another person’s right of ownership, he cannot be said to be enjoying a right of easement. Whether the right claimed “as easement” or as rights of ownership depends upon what the plaintiff intended to do. The question of the animus of plaintiff, therefore, requires to be clearly pleaded giving the adversary the scope to refute or explain. In order to establish the right of pathway that has ripened into right of easement, it must be shown that the enjoyment was as of right peaceable and open without interruption that too over a period of 20 years, attributable to any permission on the owner’s part. 14. There is a presumption that the user is permissible and the person claiming the right must prove the acquisition of such right under Sec. 25 of the Limitation Act, 1963 or Sec. 15 of the Act. Then only a plaintiff can obtain a decree. In the present case, a reading of the plaint averments in entirety as those stand and viewing those in cumulative clearly indicates that the plaintiff’s suit was not based on the right of easement, as the essential ingredients for basing the claim of right of easement which is the consciousness that the plaintiffs were exercising that right for using the right of way on the property of the defendant is not at all there. Mere silence or non-raising of objection by the owner of the land is not enough which at best may be a conduct in support but not the base. Therefore, without pleading all these and then such foundations unless being established by clear, cogent and acceptable evidence, there can arise no scope to obtain the decree. Mere silence or non-raising of objection by the owner of the land is not enough which at best may be a conduct in support but not the base. Therefore, without pleading all these and then such foundations unless being established by clear, cogent and acceptable evidence, there can arise no scope to obtain the decree. In the circumstances, when neither the essential ingredients have been so pleaded nor any evidence has been led to establish the right of easement as above discussed, mere user of the way for over prescribed period even though accepted can’t be enough; a title of easement is not complete unless it is adjudicated against a servient owner. 15. The case as presented by the plaintiff-appellants in the plaint describing the grounds in support of advancement of such prayer for declaration of right of easement over the suit land given all the liberal constructions being just roughly examined in the touchstone of the law holding the field as discussed in the aforesaid paragraph, the same are found to be wholly deficient in setting the foundation for taking up the load of the claim to stand upon the same. Mere pleading that a person is using a particular piece of land as the only path way for a longtime does neither lead to set the foundation for the claim of easement of necessity nor easement by prescription. With the aforesaid, this Court also finds that the evidence let in by the parties are just in the same line in a general manner without any further development or improvement and those even being accepted for a moment, the submissions of the learned counsel for the plaintiff-appellants stand repelled and thus the ultimate result of the suit can’t be overturned. It thus leads me to say that there arises no such substantial question of law meriting acceptance of the second appeal. 16. Resultantly, the appeal stands dismissed. No order as to cost is passed in the facts and circumstances of the case.