JUDGMENT : The non-suited plaintiffs who are aggrieved by the concurrent judgments and decrees passed by the court of the first instance and the lower Appellate Court, are the appellants. 2. The plaintiffs 1 to 5, 8 and 9 in O.S.No.7/2003 of the Court of the Munsiff, Aluva, are the appellants. The defendants in the suit – the Southern Railway Administration and its Officers – are the respondents in the appeal. The parties and facts are, for the sake of convenience, referred to as per their status and as averred before the Court of the Munsiff (Trial Court). 3. The plaintiffs sought a declaration that they, their men, agents and customers have acquired the right of way by prescription for user of plaint 'A' schedule property, for access by persons and vehicles to plaint-'B to -E' schedule properties and the buildings therein. They also sought for other consequential reliefs. 4. The short relevant facts in the plaint are as follows: 4.1 Plaint-'A' schedule property is the north eastern part of the larger vacant area of land having a length of 52 meters from the north to the south and a width of 8 meters from the east to the west, lying on the eastern side of the Aluva Railway Station main platform. 'A' schedule property is linked to the Railway Station road and the St.Antony's Monastery road which are vested and maintained by the Aluva Municipality for over 50 years. 'A' schedule property is the access of the plaintiffs and their predecessors in interest, their agents, employees and customers, to enter their buildings. The buildings on the eastern side of the 'A' schedule property are in existence for the last 50-75 years. The buildings have their main entrance and access on their western side facing the 'A' schedule property. The buildings and properties are specifically described in 'B to E' schedule properties. The plaintiffs and their predecessor have acquired and perfected the right of way/access over the 'A' schedule property by easement by prescription. 4.2 The 'A' schedule property is the serviant tenement, over which the right of way to plaint-'B to E' schedule properties was acquired, which is the dominant tenement. The defendants have no right to close or obstruct 'A' schedule property in any manner. The 1st plaintiff is the owner of 'B' and 'C' schedule properties. 4.2 The 'A' schedule property is the serviant tenement, over which the right of way to plaint-'B to E' schedule properties was acquired, which is the dominant tenement. The defendants have no right to close or obstruct 'A' schedule property in any manner. The 1st plaintiff is the owner of 'B' and 'C' schedule properties. In 'B' schedule property, a four storied building is constructed, wherein, a restaurant/bar and lodge are functioning. The building was constructed in 1974, after demolishing the old building. The main entrance to the building faces 'A' schedule property, which is the main access used to enter the building. The 'C' schedule building has been in existence for over 50 years. Its main entrance also faces 'A' schedule property, which is the main access to enter the building. In 'D' schedule property, the 1st plaintiff and his brother are conducting another restaurant. The building is in existence for more than 75 years, and the main entrance is facing 'A' schedule property, which is the main access to enter the building. Plaintiffs 2 to 7 are the tenants in occupation of various rooms in the building in 'E' schedule property. The main entrance to the rooms also face 'A' schedule property, which is the main access to enter the building. The additional 8th plaintiff is the owner of 'D' schedule property. The buildings in 'D &E' schedule properties are also more than 75 years old. The plaintiffs have acquired and perfected the right of way over 'A' schedule property by easement by prescription. 4.3. The defendants have no right to close or obstruct 'A' schedule property in any manner. Plaint-'A' schedule property is owned by the 1st defendant. The 2nd defendant is the General Manager of the 1st defendant. 4.4. On 3.1.2003, certain men under the 4th defendant went to the plaint-'A' schedule property and started digging a trench of about 1.5 feet width along the eastern boundary of 'A' schedule property. The plaintiffs learnt that the defendants were intending to construct a compound wall. The plaintiff's and their employees objected to the illegality. Despite their objection, the defendants dug a trench. Granite stones and sand were unloaded in the property. The defendants declared that they would construct the compound wall at any cost. The defendants being Government itself, the plaintiffs could not prevent their illegal acts. The plaintiff's and their employees objected to the illegality. Despite their objection, the defendants dug a trench. Granite stones and sand were unloaded in the property. The defendants declared that they would construct the compound wall at any cost. The defendants being Government itself, the plaintiffs could not prevent their illegal acts. The defendants have no right to construct the compound wall which would interfere and obstruct the plaintiffs' right of using 'A' schedule property. Hence, the plaintiffs are entitled for a decree. 5. The defendants contested the suit. The 3rd defendant-the Divisional Manager, Southern Railway, Trivandrum Division, filed a written statement for and on behalf of the defendants, inter alia, contending as follows:- 5.1 The property described as 'A' schedule is not a ' vacant land', but is a part of the circulating area of the Aluva Railway Station, which is also used as the parking area. 'A' schedule property is owned by Railways right from day one of the inception of the Railway line connecting Shoranur and Cochin. The railway line came into existence during the latter half of 19th century. The line was laid by the H.H.Maharaja of Cochin. The operations were planned and executed with a fore thought for the future. 'Vacant land' was kept and maintained for free, independent and uninterrupted entry of bona fide and genuine passengers to the Railway Station. The strip of land reported as vacant land by the plaintiffs, is used as the waiting area for passengers, parking of vehicles by passengers and people who come for advanced reservation, waiting area of service taxies and autos and access to the parcel booking office etc. The circulating area is the only passage to the occupants of Railway colony at the northern side. 5.2. The four-storied Bar and Restaurant building came into existence only in 1974. The plaintiffs constructed the multi-storied building for their convenience, with an intention of commercial exploitation. It is not lawful, but intentional, to use a public property as the main access. From the sketch submitted, it is clear that the Municipal road is available on the northern end of the 1st plaintiff's building connecting the Monastery Road to Railway circulating area. Northern boundary of the 1st plaintiff's property is abutting the road. The Alankar Hotel was given main access to the Railway land intentionally. From the sketch submitted, it is clear that the Municipal road is available on the northern end of the 1st plaintiff's building connecting the Monastery Road to Railway circulating area. Northern boundary of the 1st plaintiff's property is abutting the road. The Alankar Hotel was given main access to the Railway land intentionally. When investing for commercial exploitation, independent access was planned by the plaintiff with mala fide intention to use the circulating area of the Railway Station. There is nothing traverse in the pleadings that the property is already in the possession of the 1st plaintiff. The business of the 2nd plaintiff came into existence only in the year 2000. The 3rd and 4th plaintiffs have access on the eastern side of the 'D' schedule property. There is nothing in the pleadings to establish that the business establishments came into existence after the Railway inception and functioning. The statement “more than 75 years” etc are not correct. The plaintiffs are put to strict proof to prove their claim. It is nowhere mentioned that 'A' schedule property is the only access to the plaintiff, but is mentioned as main access by denying and hiding the fact that there is an alternate entry/access available which can be used for their business independently. With the malafide intention, wrong notion and mis-interpretation of circulating area as vacant land, the plaintiffs have started to use the public land. All the businesses have come into existence, with the motive of commercial exploitation. The road access for persons, vehicles, such as cars, lorries etc., of the plaintiffs certainly affect and create nuisance to genuine, lawful and bona fide passengers of the defendants, who use the railway strip for their free, lawful, independent and rightful ingress and egress to the railway station. The number of four wheelers and two wheelers have gone up recently. The Aluva Railway Station is one of the busiest railway stations dealing with 45 daily trains and 18 weekly trains. Nearly 10-15 thousands passengers visit the Aluva Railway Station every day. The station is the main feeding station for the High Range of Kerala. 5.3 The circulating area is 25.47x52 meters plus the taxi parking area, which is quite inadequate to cater to the needs of the bona fide railway users and the travelling public. Nearly 10-15 thousands passengers visit the Aluva Railway Station every day. The station is the main feeding station for the High Range of Kerala. 5.3 The circulating area is 25.47x52 meters plus the taxi parking area, which is quite inadequate to cater to the needs of the bona fide railway users and the travelling public. Further acquisition of land for future development of the station and the circulating area is prevented by the business establishments constructed abutting the Railway boundary. Due to the inconvenience, disturbance, nuisance and menace caused to the bona fide and genuine passengers, particularly to the weaker sex, due to the functioning of the Bar, the proposal was made to construct a boundary wall to prevent the drunkards and anti-social elements from encroaching into the Railway land. The ingress and egress of people to the business outlets has caused inconvenience, confusion and unwarranted mental agony to the passengers. Therefore, a decision was taken to construct the compound wall in the circulating area of the Railway Station. Lots of complaints were submitted by the railway passengers regarding the inconvenience caused to them. The plaintiffs have no cause of action to file the suit and the same may be dismissed. 6. The power of attorney holder of the 1st plaintiff was examined as PW1 and the Advocate Commissioner was examined as PW2. The 4th defendant was examined as DW1. Although the plaintiffs had produced Exts.A1 to A11, the Trial Court refused to admit Exts.A1, A2, A3 and A5 in evidence, as the documents were photocopies. Similarly, Ext.B1 was also refused to be admitted in evidence. (See paragraph 5 of the Trial Court judgment). Ext.C1 commission report and Ext.C1(a) sketch were marked through PW2. 7. The Trial Court, after evaluating the evidence and materials on record, dismissed the suit with costs of the defendants. 8. The plaintiffs preferred A.S No.124/2004 before the Court of the Additional District Judge, North Paravur. The lower Appellate Court, after re-appreciating the pleadings and materials on record, by the impugned judgment and decree confirmed the judgment and decree of the Trial Court. 9. Aggrieved by the judgments and decrees of the Trial Court and the lower Appellate Court, the plaintiffs have filed this Second Appeal. 10. This Court formulated the following substantial questions of law. (1) Whether the courts below are justified in not upholding the plaintiffs claim of fright of easement by prescription. 9. Aggrieved by the judgments and decrees of the Trial Court and the lower Appellate Court, the plaintiffs have filed this Second Appeal. 10. This Court formulated the following substantial questions of law. (1) Whether the courts below are justified in not upholding the plaintiffs claim of fright of easement by prescription. When the essential ingredients specifically pleaded by the plaintiffs regarding the same are not denied either specifically or by necessary implication by the defendants in their written statement? (2) In the light of the evidence adduced and the admissions made by the defendants of use of plaint-A schedule property by the plaintiffs for a long period of 50 years and more in the manner pleaded in the plaint ought not the courts below have drawn the presumption that the user by the plaintiffs was as of right, and also the inference that such user by the plaintiffs is by way of independent assertion of their right and that this makes their user of A schedule property distinct and different from uses of the premises by passengers and visitors to the railway station? (3) Has Section 11 of the Railways Act, 1989 application in the instant case and, even if the said section applies whether the lower appellate court is justified in relying on it in the absence of pleadings regarding its ingredients by the defendants? (4) Are not the plaintiffs entitled to the benefits of Sections 16 and 17 of the Railways Act, 1989? 11. Heard Sri.M.P.Ramnath, the learned counsel appearing for the appellants and Sri.James Kurian, the learned Standing Counsel appearing for the respondents. 12. The learned counsel appearing for the appellants argued that the courts below have gone wrong in dismissing the suit. Both the courts have failed to appreciate that the defendants have not specifically denied the pleadings in the plaint, which tantamount to admission in view of Order VIII Rule 5 of the Code of Civil Procedure (in short “Code”). According to him, the plaintiffs have pleaded and proved the necessary ingredients of Section 15 of the Indian Easements Act, 1882 (in short “the Act”). There is clinching evidence to substantiate that the buildings in plaint-'B to E' schedule properties are in existence for the last 50-75 years. According to him, the plaintiffs have pleaded and proved the necessary ingredients of Section 15 of the Indian Easements Act, 1882 (in short “the Act”). There is clinching evidence to substantiate that the buildings in plaint-'B to E' schedule properties are in existence for the last 50-75 years. The defendants have not disproved that the plaintiffs have been using plaint-'A' schedule property as access to 'B to E' schedule properties, for more than 30 years. Ext.A8 is sufficient to establish that the buildings are in existence for the last more than 30 years. When the Trial Court dismissed I.A No.44/2003, an application for interim injunction, which order was confirmed by the lower Appellate Court in CMA No.3/2003, this Court by the orders in CRP Nos.762 and 982/2003, directed the Railway Administration to demolish the wall that was constructed and permit the plaintiffs to use 'A' schedule property with a width of 5 meters, as their right of way. Ext.A10 commission report filed in revision petition before this Court would substantiate the said aspect. The learned counsel also argued that the lower Appellate Court has mis-appreciated the materials on record and erroneously held that the plaintiffs were in permissive possession of 'A' schedule property. He contended that when the defendants have admitted that the plaintiffs constructed the buildings with an intention of commercial exploitation, there is nothing more to be proved by the plaintiffs. Ext.A4 document proves that the Bar has been functioning in 'B' schedule property since 3.4.1974. The lower Appellate Court has without any foundation or basis relied on Section 11 of the Railways Act, which is impermissible. Even though the learned counsel had attempted to make a reference to Exts.A1 to A3 and A5, the same was not permitted because the said documents were not admitted in evidence (see paragraph 5 of the Trial Court judgment). The learned counsel relied on the decisions of the Hon'ble Supreme Court in Lohia Properties (P) Ltd, Tinsukia, Dibrugarh, Assam v. Atmaram Kumar [ (1993) 4 SCC 6 ] and that of this Court in Louiz v. Augustine [ 2004 (3) KLT 71 ] to drive home his contention that there should be specific denial of the allegations in the plaint, otherwise it would be deemed that the defendants have admitted to the assertions in the plaint. He also relied on pages 266, 377 and 380 of the 12th Edition of B.B Katiyar on Law of Easements and Licences. Similarly, he placed reliance on M.Ratanchand Chordia and others v. Kasim Khaleeli [AIR 1964 Madras 209], Ramesh Chandra v. Lambodar panda and others [AIR 1960 Orissa 95], Rau Rama Atkile v. Tukaram Nana Atkile and another [AIR 1939 Bombay 149] and Bhanum Ram and Others v. Jwanda Ram and others [AIR 1926 Lahore 522] to fortify his contention that the plaintiffs have perfected the right of way/access over 'A' schedule property by easement by prescription, as they have uninterruptedly used the property for more than 30 years. 13. The learned Standing Counsel appearing for the respondents, on the contrary, argued that the appeal does not involve any question of law, leave alone substantial question of law. Both the fact finding Courts have concurrently rejected the case set up by the plaintiffs. The plaintiffs have miserably failed to substantiate their claim, that they have perfected the right of way by easement by prescription for a period of 30 years. He contended that the plaintiffs have not let in any evidence to establish that they have as of right perfected the easement by prescription over 'A' schedule property. He also argued that, only the Manager of the 1st plaintiff, who admittedly was working with 1st plaintiff for only for 9 years prior to the incident, was examined as PW1. Even though Exts.A1 and A2 were not marked in evidence, Ext.A2 Exchange Deed would substantiate that there were no buildings in 'B' schedule property. The defendants have specifically denied each and every assertion in the plaint. Likewise, the defendants have put the plaintiffs to strict proof to prove the allegations in the plaint. The plaintiffs have themselves admitted in the plaint that 'A' schedule property is their main access, which proves that they have an alternate access. The plaintiffs are trying to claim easement over a public way, which is used for the rail users, passengers and its employees, which cannot be permitted in law. There is no demarcation of 'A' schedule property, which is a large extent of land admeasuring 25.47x52 meters. The plaintiffs are trying to claim easement over a public way, which is used for the rail users, passengers and its employees, which cannot be permitted in law. There is no demarcation of 'A' schedule property, which is a large extent of land admeasuring 25.47x52 meters. The property is being used for passengers, visitors, parking of vehicles of passengers, taxies and autos, ingress and egress to the parcel booking office, passage to the Railway colony on the northern side and most importantly is the circulating area of the Aluva Railway Station, connecting the Railway Station Road with the St.Antony's Monastery Road. The said property is a public road and public place. By no stretch of imagination can the plaintiffs claim easement by prescription over a public road/place. It is due to the perpetual nuisance that was caused by the customers of the plaintiffs, who visited the Bar, the Railway Administration decided to construct a compound wall. The plaintiffs have without any basis, fictitiously demarcated 52x8 meters and scheduled it as plaint-'A' schedule property to suit their purpose and convenience. Ext.C1 commission report establishes that there is no such property as 'A' schedule. The entire circulating area and the parking area on the eastern side of the Aluva Railway Station is one contagious plot. The plaintiffs have with ulterior motives and oblique intentions, demarcated 'A' schedule property which is actually non-existent. Hence he prayed that the appeal be dismissed, confirming the judgments and decrees of the courts below. 14. As the substantial questions of law 1 and 2 are inter-twined , I answer them together. 15. Section 15 of the Indian Easements Act, 1882 reads as follows: “15. Acquisition by prescription:-Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. Explanation I-Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfillment of which it is to cease. Explanation II-Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made. Explanation III-Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation IV -In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section belongs to the Government, this section shall be read as if, for the words “twenty years” the words “thirty years” were substituted.” 16. Undisputedly, 'A' schedule property belongs to the Railway Administration, which falls within the definition of Government under the sixth part of Sec.15 of the Indian Easements Act, 1882. In view of the language used in Sec.15 of the Act, the plaintiffs have to plead and prove that they have peaceably and openly enjoyed the right of way, as an easement and as of right, without interruption and for a period of 30 years. 17. The sheet anchor of the learned counsel for the appellant is that the defendants have not specifically denied the assertions in the plaint. 17. The sheet anchor of the learned counsel for the appellant is that the defendants have not specifically denied the assertions in the plaint. Therefore, the averments in the plaint have to be treated as admitted, in view of Order VIII Rule 5 of the Code, for which he relied on Lohia Properties Private Ltd and Louiz (cited supra). 18. Reading of the concurrent judgments of the Trial Court and lower Appellate Court, it is seen that the very same contentions was raised before both the Courts, but the Courts have rejected the said contention, which is basically an analysis of the facts. 19. On a scrutiny of the averments in the written statement, it is seen that the defendants have specifically denied the averments in each paragraph of the plaint. Likewise, the defendants have categorically pleaded that 'A' schedule property is not a vacant land, but, inter alia, is the circulating area of the Aluva Railway Station,used for the purposes already mentioned in the preceding paragraphs. Therefore, the contention of the learned counsel for the appellants cannot be accepted. 20. This Court in Lilly v. Wilson [ 2018 (1) KLT 772 ] has held as follows: “15. The definition of the word “prescription” according to Salmond on jurisprudence (12th edition) is thus: “Prescription may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestitive fact. It is of two kinds, namely (1) positive or acquisitive prescription and (2) negative or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way by the de facto use of it for twenty years. An instance of the latter is the destruction of the right to sue for a debt after six years from the time at which it first became payable. The concept is founded on utility, rather than on equity. Essential concomitants for prescribing an easement right are peaceable, open continuous and as of right enjoyment of the right for the stipulated period in order to mature the user into a legal right. It is therefore clear that the basis of a prescriptive easement is the exercise of a right in accordance with the stipulations in S.15 of the Act.” 21. It is therefore clear that the basis of a prescriptive easement is the exercise of a right in accordance with the stipulations in S.15 of the Act.” 21. This Court in Ibrahimkutty v. Abdul Rahumankunju [ 1992 (2) KLT 775 ] held as follows: “15. Ordinarily a court can find a case and decree the suit only on the basis of the pleadings of the parties. In case, where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. There is reason therefore. '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 pleadings should be precise. 22. Note 119 in the 12th edition of B.B.Katiyar on Law of Easements and Licences reads thus: 119. User in Common with the Public The mere user of a way in common with general public cannot establish an easement of way, such as is prima facie regarded as being under an implied licence or permission and is not adverse, unless- (a) the use is had under a claim of right, known to and acquiesced in by the servient owner; or (b) there is some act on the part of the claimant of the easement indicating an independent assertion of right more pronounced and more clearly indicative of a claim of right than his open and notorious use of the way”. 23. In Brastow v. Rockpurt Co. 77 Mc. 100, (extracted in Note 13 of the same edition of B.B.Kattiyar on Law of Easements and Licences), it is observed as follows: “A right of easement cannot arise by prescription in favour of an individual, if the use of such easement has been participated in by the general public. The mere lawful exercise by an individual of a common right for the prescriptive period cannot confer an exclusive right.” 24. Other than for the mere assertion in the plaint, that the plaintiffs have perfected the right of way over 'A' schedule property by way of easement by prescription, no material whatsoever was produced before the fact finding Courts to substantiate the pleading. Although two documents were produced – Exts. Other than for the mere assertion in the plaint, that the plaintiffs have perfected the right of way over 'A' schedule property by way of easement by prescription, no material whatsoever was produced before the fact finding Courts to substantiate the pleading. Although two documents were produced – Exts. A1 and A2 – copies of a will deeds and an exchange deed -the said documents were not admitted in evidence by the Trial Court, as they were photocopies. Therefore, the only material that is on record is Ext A4 dated 6.1.2003, which would shows that a FL3 (Bar) licence was issued on 3.4.1974 to run a bar hotel business. Similarly, Ext A8 property tax assessment register for the years 1956-1957 to 1960-61 was produced to substantiate that the persons mentioned in the document have remitted property tax. Nevertheless, the said documents do not prove that the plaintiffs have, “as of right”, peaceably and openly enjoyed the right of way through 'A' schedule property for 30 years preceding the plaint. There is no plausible explanation from the plaintiffs as to what precluded them from producing the title deeds or other materials to prove the assertions in the plaint, to get a declaration of a precarious and special right. 25. The more glaring flaw is that none of the plaintiffs mounted the box to let in oral evidence to substantiate their contentions. Whereas, the 4th defendant let in evidence as DW-1. 26. Although PW1, who claimed to be the power of attorney holder of the first plaintiff, the Trial Court rightly refused to recognise him as an agent, as no permission was obtained as per the mandate under Rule 22 of the Civil Rules of Practice read with Order III Rule 2 of the Code of Civil Procedure. 27. PW1 -who was treated as a witness -admitted that he was working as a Manager of the first plaintiff for the 9 years preceding the date of his examination. Therefore, he was not in a position to let in evidence to prove that the plaintiffs have peaceably and openly and as of right enjoyed the right of way over 'A' schedule property, as an easement, for a period of 30 years. Merely because the buildings in 'B to E' schedule properties are facing 'A' schedule property, it does not confer any right on the plaintiff to claim acquisition by prescription. 28. Merely because the buildings in 'B to E' schedule properties are facing 'A' schedule property, it does not confer any right on the plaintiff to claim acquisition by prescription. 28. It is on record, as pleaded in the written statement and corroborated by PW2 and DW1, and C1 commission report, that the property on the eastern side of the Aluva railway station is a large extent of land admeasuring 25.47 x 52 mtrs, commonly called as circulating area. PW2 -the Advocate Commissioner has empathetically stated in C1 that there is no demarcation between the parking ground and 'A' schedule property, as alleged in the plaint. Moreover, it is seen that the circulating area is linked to the Railway Station road on the south east and St.Antony's Monastery road on the North-East, and is connecting road for passengers, general public and vehicular traffic to visit the Aluva Railway Station. It can be seen that the plaintiffs have fictitiously demarcated an area, as per their convenience, as 'A' schedule property, in the circulating area of the defendants. The circulating area is a road used by the general public over which the plaintiffs cannot claim acquisition of prescription in light of the law laid down in Ibrahimkutty and the principles in Brastow and Note 119 (cited and quoted supra). 29. The courts below have rightly found that the mere user of the way by the plaintiffs in common with the general public will not confer on them an easement right by prescription. In view of the reluctance/refusal on the part of the plaintiffs to mount the box or to produce any material to prove their alleged acquisition by prescription, which is fatal, necessarily their claim has to fail. The courts below have rightly come to the conclusion that the plaintiffs have not proved that they have peaceably and openly enjoyed 'A' schedule property as of right for a period of 30 years. Hence, questions of law 1 and 2 are found against the appellants/plaintiffs. 30. In the substantial question of law No.3, it is seen that neither the plaintiffs nor the defendants have pleaded or proved regarding Section 11 of the Railways Act, 1989. Going by the language in the said section, it can be seen that the provision pertains to acquisition of land for the purpose of , inter alia, construction of houses and other buildings for the Railway Administration. Going by the language in the said section, it can be seen that the provision pertains to acquisition of land for the purpose of , inter alia, construction of houses and other buildings for the Railway Administration. In the case on hand, the Railway Administration decided to construct a compound wall to abate the menace caused by the customers of the plaintiffs to the passengers/ railway users. The defendants do not have a case that the Railway Administration was intending to carry out any construction and maintenance works as contemplated under Section 11 of the Act. Therefore, I hold that the lower Appellate Court went wrong in relying on Section 11 of the Act. 31. Coming to substantial question of law No.4, that is whether the plaintiffs are entitled to the benefits of Sections 16 and 17 of the Railways Act, I answer it in the following manner. 32. Section 16 of the Railways Act, 1989, pertains to accommodation work. Section 17 relates to the power of the owner-occupier of State Government or local authority to cause additional accommodation works to be made. On evaluation of the materials, it is seen that neither party has a case that a construction was carried out falling within Sections 16 and 17 of the Act. Hence, I hold that the plaintiffs are not entitled to the benefit of Sections 16 and 17 of the Act. 33. The learned counsel appearing for the appellants lastly contended that this Court had passed an interim order permitting the appellants to use plaint-'A' schedule property to the length of 52 meters and width of 5 meters. Therefore, the said benefit should be extended to the appellant. 34. On a perusal of the order dated 10.4.2003 in C.M.P. No.1858/2003 in CRP No.762/2003 and order dated 27.6.2003 in C.R.P. No.762/2003, it is seen that this Court had passed the order as an interim measure, subject to the final outcome of the suit. In view of the dismissal of the suit, the said order would no longer survive. 35. In view of the above findings, I confirm the concurrent judgments and decrees in O.S No.7/2003 and in A.S No.124/2004. Resultantly, the Second Appeal is dismissed.