JUDGMENT : The plaintiff in O.S.No.135 of 2005 on the file of the Principal District Munsif Court, Kuzhithurai, which he had laid for bare injunction that the defendant be barred from trespassing into his property, is the appellant herein. The suit was decreed by the trial court, and the plaintiff suffered a reversal before before the Sub Court, Kuzhithurai, in the first appeal preferred by the defendants in A.S.No.32 of 2008. Pleadings: 2.1 The case of the plaintiff is that he has purchased a plot measuring 10 cents from a certain Jacob under Ext.A1-sale deed, dated 01.08.1997. According to him, he had put up a residential building and also constructed a granite compound wall on the north. He claims that the defendants are trying to bring down a compound wall to enter his property and hence laid the suit for bare injunction. 2.2 There are eight defendants. In the written statement filed by defendants 1 and 3 to 7, and adopted by defendants 2 and 8, they principally allege that they are residents of Paruthivilai, Konamvilai and Thundamvilai, that these areas are located to the north of the suit property, that the main road from Munchirai - Vettuvenni is in the far south of the suit property, that to access the main road, these defendants and their ancestors and those from the locality have been using a six links wide pathway that runs through the property of the plaintiff, and that the plaintiff is trying to obstruct the pathway. They also pleaded that on 03.07.1995 they obtained a right of pathway over the property of the 8th defendant under Ext/B-1. 2.3 The plaintiff has filed a rejoinder, refuting the allegations in the written statement. In particular, the plaintiff pleads about a pathway connecting the property to the north of his property and the main road, which he would plead runs to the west of the plaintiff's property and others property to its immediate west. 3. The trial Court framed necessary issues and the dispute went to trial. Before the trial Court, the plaintiff examined himself as P.W.1 and also examined an independent witness as P.W.2. He produced Ext.A1 to Ext.A5 of which Ext.A1 is the title document in Malayalam of which Ext.A2 is the transliteration of Ext.A1 in Tamil. 4. 3. The trial Court framed necessary issues and the dispute went to trial. Before the trial Court, the plaintiff examined himself as P.W.1 and also examined an independent witness as P.W.2. He produced Ext.A1 to Ext.A5 of which Ext.A1 is the title document in Malayalam of which Ext.A2 is the transliteration of Ext.A1 in Tamil. 4. For the defendants, the 1st defendant alone was examined as D.W.1 and he produced Ext.B-1 sale deed executed by the 8th defendant in favour of some of the defendants. The trial Court appointed an Advocate Commissioner for local inspection, and he had filed his reports, which are taken on record by the trial Court as Ext.C1 and Ext.C2. The Commissioner was also examined as C.W.1. 5. On appreciating the evidence, the trial Court decreed the suit. Its line of reasoning can be bullet pointed: There is no dispute that the plaintiff is the owner of 10 cents plot, which he claims under Ext.A1, and patta too has been granted to him for the portion where the pathway is alleged to be there. The defendants have not raised any counter claim to secure the title to the pathway. The Commissioner has not clearly indicated about the existence of the alleged pathway in the property of the plaintiff. The defendants have not required the Commissioner to ascertain if there are any alternate pathways available to them. 6. Aggrieved by the said decree, the defendants preferred a first appeal in A.S.No.32 of 2008. Re-appraising the evidence before it, the first appellate Court differed from the trial Court and allowed the appeal. The first appellate Court has taken a view that the Commissioner has denoted a pathway in the middle of the plaintiff's property, and inasmuch as no alternate pathway is shown to be existing, he accepted the contentions of the defendants. 7. Aggrieved by the reversal in fortune before the first appellate Court, the plaintiff has preferred this appeal. The appeal was admitted for considering the following substantial questions of law:- “i) Whether the dismissal of the suit by the Lower Appellate Court in its entirety in respect of plaint schedule property is sustainable in law when the respondents have admitted the title of the appellant? ii) Is not the Lower Appellate Court committed an error in accepting the Commissioner Report and Plan overlooking the depositions of the parties?” 8. ii) Is not the Lower Appellate Court committed an error in accepting the Commissioner Report and Plan overlooking the depositions of the parties?” 8. A perusal of the papers informed that this Court had suo motu appointed the same Advocate Commissioner appointed by the trial Court, vide its order dated 02.08.2013 for ascertaining the existence of any alternate pathway as pleaded by the plaintiff in paragraph 8 of his rejoinder. The Commissioner has filed his report along with his plan. They necessarily have to be made part of the record and have accordingly been marked as Ext.C3 and Ext.C4. 9. The learned counsel for the plaintiff/appellant argued: The defendants' contention does not have a legal basis. They contend that a pathway runs through the plaintiff's property, about its middle, that is being used for time immemorial. This goes counter to the admitted position of these defendants, who would contend that they have purchased a narrow strip of property measuring two cents in R.S. Nos.71/25, 71/26 and 71/27 from the 8th defendant to use the same as the pathway. Indeed, the 8th defendant, the vendor, has also stipulated that she would also be allowed the same property to be used as the pathway. This property of the 8th defendant lies as south eastern boundary of the plaintiff's property and the defendants claim access through the plaintiff's property to reach the main road which is about 300 ft from it, but they have also realised that they needed a pathway through the property of the 8th defendant. Notwithstanding the sale deed, the Commissioner has not marked any such pathway having been created in terms of Ext.B.1 in the property of the 8th defendant. How then can there be a right of way through the plaintiff's property? If the defendant's contention is scrutinized, they intend to project a case of customary easement, but neither it is pleaded adequately nor has it been ably proved, for except the first defendant, none has been examined. Reliance was placed on the ratio in Bhagat Singh Vs Jaswant Singh [ AIR 1966 SC 1861 ], Pona Karuppan Ambalam and ors. If the defendant's contention is scrutinized, they intend to project a case of customary easement, but neither it is pleaded adequately nor has it been ably proved, for except the first defendant, none has been examined. Reliance was placed on the ratio in Bhagat Singh Vs Jaswant Singh [ AIR 1966 SC 1861 ], Pona Karuppan Ambalam and ors. v. S. V. K. Karuppan Ambalam and another [ AIR 1965 Mad 379 ], Shri Thakur Singh Chettri and three others Vs Shri Dharma Samsher Basnett and another [AIR 2015 Sikkim 27], Ibrahimkutty Koyakutty Vs Abdul Rahumankunju Ibrahimkutty and others [AIR 1993 Kerala 91] This Court appointed a Commissioner and the Commissioner has filed Ext.C3 and Ext.C4, reports, wherein the Commissioner has indicated an alternate pathway. Neither side, more particularly the respondents herein have not filed any objection to the same. 10. Per contra, the learned counsel for the defendants/respondents argued: The plaintiff has opted to institute a suit for bare injunction and he ought to have filed a suit for declaration of their title; To sum up, the defendants tried to force themselves into the property of the plaintiff without creating any right for themselves in terms of the Indian Easements Act, 1882. A mere convenience to the defendants cannot entitle them with right of way over the property of another. Reliance was placed on Ram Chandra Sah v. Abdul Hannan and others [ AIR 1984 Pat 313 ] and Tukaram Rajaram Suple and others Vs Sonba Chindhu Mali (single) [ AIR 1959 Bom 63 ] While describing the suit property in the plaint, the plaintiff described it as the western 10 cents out of 15.375 cents, whereas the Commissioner has measured only the 10 cents so described and has not identified the entire 15.375 cents. The Commissioner has clearly indicated about the existence of a pathway cutting across the property of the plaintiff. Indeed, to the immediate north of this pathway, there is a flight of steps provided to ascend and access the next adjacent land on the north, which is at a higher level where the defendants and those from the localities live. The existence of the flight of steps itself would be an indication that this pathway is being used. The Munchirai - Marthandam main road is about 300 ft from the southern boundary of the plaintiff's property. The existence of the flight of steps itself would be an indication that this pathway is being used. The Munchirai - Marthandam main road is about 300 ft from the southern boundary of the plaintiff's property. In this main road there is a public tap which is being used by the defendants and others in the locality, and the only access they have is to trek through the disputed pathway. And the Commissioner in his Ext.C-2 plan has shown this tap. Summing up his arguments, the learned counsel submitted that if the right of access through the plaintiff's property is cut off, then not just the property of the defendants, but several others who live in the localities to the north of the plaintiff’s property will be denied access to the main road on the south. 11. The learned counsel for the plaintiff/appellant would now submit that when the Commissioner was probed about the flight of the steps to the north of the plaintiff's property, he would reply that he was not required to ascertain its physical features or any other particulars about it. The learned counsel submitted that the entire property lie in a hilly terrain, and people would cut the earth to create a steps like facility and it should not equated to any permanent structure. 12. Rival contentions and their merits are carefully weighed. None can claim a right of way over another person's property for the beneficial enjoyment of his own property unless it amounts to a right of easement. Now the nature of defense taken by the defendants would indicate that if at all there is any, it could fall only under the head of customary easement as defined under Sec.18 of the Easement Act. 18. Customary easement.—An easement may be acquired in virtue of a local custom. Such easements are called customary easements. 13. Sometime it is believed that customary easement does not have either a dominant heritage or a servient heritage as in other variety of easementary rights. It may not be entirely true, for a right is still asserted over the land of the other, not for a specific dominant heritage. Such easements are called customary easements. 13. Sometime it is believed that customary easement does not have either a dominant heritage or a servient heritage as in other variety of easementary rights. It may not be entirely true, for a right is still asserted over the land of the other, not for a specific dominant heritage. If a fluctuating body of persons claim right to easement over the property of another, it must have a foundation in custom or a long usage that it matures into a lost grant to presume the existence of an easementary right for the benefit of community of people. It requires specific pleadings but the written statement falls short of nature of pleading required for resting a defence in a customary easement. Even if it is considered adequate, yet the proof in aid of this core contention of the defendants stops at a considerable distance in establishing it, and goes to fail them. The points against the defendants are: The plaintiff's property, measuring in all 10 cents is an irregular plot of land in a hilly terrain. It does not fit in any known geometrical dimension and may be generally considered as a narrow plot running west to east. The disputed pathway is stated to be running about the middle of the plaintiff's property. It may roughly stated to be dividing the plaintiff's property into eastern half and the western half. The property of the 8th defendant, it is admitted by both sides lies to the immediate south of the what may be approximately stated as the eastern half of the plaintiff's property. And the main road runs some 300 feet to the south of the plaintiff's property. This is the minimum physical feature necessary to be noted. Here is now set Ext.B.1 sale deed dated 03-07-1995. This document discloses that the defendants 1 to 7 have purchased a narrow strip of land from the 8th defendant to establish a common pathway for all. This document would instantly signify two aspects: i) That the disputed pathway could not have been sued as of right, and if at all it was there, there would not have been a need for Ext.B-1 sale deed. This document would instantly signify two aspects: i) That the disputed pathway could not have been sued as of right, and if at all it was there, there would not have been a need for Ext.B-1 sale deed. Alternatively, the fact that the defendants 1 to 7 had gone for a purchase of 2 cents from the 8th defendant implied that the pathway right has to be created to the south of the plaintiff's property for the first time. If but for the pathway to be created in terms of Ext.B1 the defendants would not have access to the main road, then it is illogical to hold that there could be a right of pathway by immemorial user for them to have access only up to the southern boundary of the plaintiff's property and not beyond. How then to believe that there is a right of way over the plaintiff's property by immemorial user? ii) Secondly, the Commissioner's Report in Ext.C-3 and Ext.C-4 indicate about the existence of alternative pathway to the defendants, and this report was not objected to. 14. The focus of the counsel for the defendants is about the failure of the plaintiff to seek a declaratory relief and its effect. This is least impressive an argument, for it is the defendants who assert a right of pathway over the plaintiff's property and it is they who face obstruction and if at all someone should seek a declaratory relief, then the defendants ought to seek it. Turning to existence of a flight of steps to the disputed pathway is concerned, it can never be conclusive. After all the terrain where the property is located is hilly and unless it is made evident the nature of construction of these flight of steps, hardly can it tilt the advantage in favour of the defendants. 15. Before the present suit, the plaintiff's property was unenclosed. After all the terrain where the property is located is hilly and unless it is made evident the nature of construction of these flight of steps, hardly can it tilt the advantage in favour of the defendants. 15. Before the present suit, the plaintiff's property was unenclosed. As observed in Ramachandra Vs Hari [31 BLR 120 ; AIR 1929 Bombay 144] and relied on in Tukaram Rajaram Suple & Others Vs Sonba Chindu Mali [AIR 1959 Bombay 63], “In a country like India where the lands are usually unenclosed, before a right of easement could be declared to be established over them, courts must require strict proof that the plaintiff has satisfied the requirements of Sec.15 of the Easement Act..” , which contextually might have to be read as one of customary easement under Sec. 18 of the Act. What could be gathered is that before the plaintiff has put up a compound wall around his property, it is possible that those in the vicinity might have passed through the property of the plaintiff to access the road in the south. The point is will it mature into a right of way? If life of law is not logic but a facet of experience, then the way life is lived in our villages should not be forgotten. It is not uncommon in villages to let the villagers go through one's property, but that is done more out of courtesy for the other villagers as an aspect of co-existence. To convert such courtesies into a vested right of easement is too dangerous. Hence pleading and proving customary easement the way they should be done is indispensable and here the defendants' combined effort is far inadequate. 16. In conclusion, this appeal is allowed, the judgment and the decree of the first appellate court in A.S. No. 32 of 2008, dated 28.07.2009 is set aside, and the decree of the trial court in O.S. No. 135 of 2005 is restored. No costs.