P.K. Balasubramanyan, J.
1. Since the parties were the same, this Second Appeal was heard along with S. A. 397 of 1989. But considering the nature of the questions involved in the two Second Appeals, I think it appropriate to pronounce separate judgments in the two Second Appeals.
2. The second plaintiff is the appellant in this Second Appeal. He is the son of plaintiff No. 1 in the suit, who died pending the litigation. The suit by the plaintiffs was one for a mandatory injunction directing the defendants to restore the plaint C schedule pathway that allegedly existed in the south-western portion of the defendants' property and for a perpetual injunction restraining the defendants from interfering with the user of that pathway. Plaint C schedule, the disputed portion of the pathway, has been marked by the Commissioner in Ext. C 3 plan as BC. The right of way was claimed by the plaintiffs by way of an easement by prescription. In the plaint, there was no prayer for declaration of the right of way of the plaintiffs by way of prescription. The prayer in the plaint was only for a mandatory injunction directing the defendants to restore the portion of the way blocked by them to its original condition and for compensation for damages caused to the plaintiffs by the blocking. A prayer for a prohibitory injunction restraining interference with the user of the way by the plaintiffs, was also claimed. The defendants denied that the plaintiffs have any right by way of prescription over the alleged plaint C schedule pathway. The defendants thus challenged the entitlement of the plaintiffs to relief. The trial Court held that the second plaintiff had title to A and B schedule properties, that there was a pathway as described in plaint C schedule, that the said pathway was being used by the plaintiffs and the plaintiffs have established a right by way of an easement by prescription by showing uninterrupted user for more than 35 years, that in view of the act and conduct of the defendants, the plaintiffs had a cause of action. The trial Court granted the plaintiffs the relief of mandatory injunction directing the defendants to remove the obstructions in plaint C schedule pathway and restraining the defendants from causing any obstruction to the plaint C schedule pathway and from changing its physical features. A sum of Rs. 600/- was also awarded as damages. The defendants went up in appeal. The lower appellate Court in its judgment dated 28-11-1986 held that the plaintiffs had not made out a right by way of prescription over the pathway described as plaint C schedule. Therefore, the plaintiffs were not entitled to relief. Reversing the decree of the trial Court, the lower appellate Court dismissed the suit. The plaintiffs filed S. A. 279 of 1987 before this Court challenging the decision of the lower appellate Court. This Court held that the lower appellate Court had failed to consider the oral evidence of the witnesses examined on the side of the plaintiffs and the non-consideration of the evidence of the two witnesses examined on the side of the plaintiffs has rendered the judgment of the lower appellate Court unsustainable. This Court therefore set aside the judgment and decree of the lower appellate Court and remanded the appeal to the lower appellate Court for a fresh disposal in accordance with law and in the light of the observations contained in the judgment of this Court. Thereafter, the lower appellate Court reconsidered the appeal filed by the plaintiffs. The appellate Court held that the plaintiffs had established that the disputed pathway was being used by the plaintiffs for ingress into and egress from their property and for taking their cattle. It is not seen that the appellate Court has rendered a finding that the user was for more than 20 years and that it was as of right, but it may be possible to infer such a finding from the fact that the lower appellate Court accepted the evidence of P.Ws. 2 and 3, including their evidence that the pathway was in existence for 35 years. But the lower appellate Court denied relief to the plaintiffs on the ground that the plaintiffs have not made a prayer in the plaint for a declaration of their right by way of prescription and had merely sued for injunction. The appellate Court relied on the decision of the Karnataka High Court in D. Ramanatha v. S. Razaack, AIR 1982 Karnataka 314 in support. Thus, the appellate Court refused to interfere with the dismissal of the suit by the trial Court and dismissed the appeal. This is what is challenged before me by the second plaintiff.
3. Learned counsel for the plaintiff-appellant submitted that a suit for injunction without a prayer for declaration is maintainable. Counsel relied on the decision in Krishna Pillai v. Kunju Pillai (1990) 1 Ker LT 136 wherein the correctness of the decision in Ramanatha v. S. Razaack, AIR 1982 Karnataka 314 was doubted. Counsel for the defendants in addition to relying on the decision in Ramanatha v. S. Razaack, AIR 1982 Karnataka 314 also relied on the decision of the High Court of Calcutta in Siti Kanta Pal v. Radha Gobinda Sen, AIR 1929 Cal 542 referred to and followed in the decision of the Karnataka High Court. It was submitted that the view adopted by the lower appellate Court is correct.
4. The right to declaratory relief is recognised by Section 34 of the Specific Relief Act. The Privy Council in Sheoparsan Singh v. Ramnandan Singh 43 Ind App 91 : (AIR 1916 PC 78) has stated that the section does not warrant every kind of declaration but only a declaration that the plaintiff is entitled to a legal character or to any right as to any property and it warrants this kind of relief only under certain special circumstances. In Robert Fischer v. Secretary of State, (1899) ILR 22 Mad. 270 (C) it was held that Section 34 of the Specific Relief Act was not exhaustive. The Supreme Court in V. Ramaraghava Reddy v. K. Seshu Reddy, AIR 1967 SC 436 has also held that Section 42 of the Specific Relief Act 1877 corresponding to Section 34 of the present Act is not exhaustive and the courts can grant declaratory decrees independent of the Section. The jurisdiction of the Court in that regard was stated in Pyx Granite v. Ministry of Housing and Local Government (1958) 1 QB 554 and Lord Denning referred to the need for exercise of discretion by Court to grant a declaratory relief in the following words
"If a substantial question exists which one person has a real interest to raise and other to oppose, then the Court has a discretion to resolve it by a declaration which it will exercise if there is good reason for so doing."
Commenting on the power of the Court to grant declaratory decrees S.A. de Smith in his Judicial Review of Administrative Action stated thus :
"The power of Court to render a purely declaratory judgment is particularly valuable in cases where a legal dispute exists but where no wrongful act entitling either party to seek coercive relief has been committed. By making an order declaratory of the rights of the parties the Court is able to settle the issue at a stage before the status quo has been disturbed."
Thus it can be seen that the main object of seeking a declaratory relief is to prevent the alteration of the status quo. In Mohd. Manjural Haque v. Bisseswara Banerjee, AIR 1943 Cal 361 the Calcutta High Court suggested three fold classification of the scope of declaratory relief in the context of Section 42 of the Specific Relief Act (present Section 34). They were (1) what were merely declaratory, defining rights but not giving any present relief, (2) what was in form declaratory but in effect gave instant relief to the plaintiff by restoring his deprived rights, and (3) where declaration of right is made as introductory to the relief granted by the Court.
5. Section 38 of the Specific Relief Act provides for the grant of a perpetual injunction to prevent the breach of an obligation existing in favour of a plaintiff whether expressly or by implication. Speaking on the scope of Section 54 of the Specific Relief Act, 1877 corresponding to Section 38 of the present Act His Lordship Justice Asutosh Mookerjee on behalf of the Division Bench in Ram Kissen v. Pooran Mull, AIR 1920 Cal 239 stated :
'This is fairly clear from the opinion, and controlling paragraph of the section which provides that in order to entitle a litigant to a perpetual injunction he must establish that the injunction is required to prevent a breach of an obligation. The term "obligation" is defined in S. 3 to include every duty enforceable by law, so that when a legal duty is imposed on one person in respect to another, that other is invested with the corresponding legal right. The first paragraph of the section thus establishes the broad and general rule that given the breach of an existing legal right which is vested in the applicant, the breach thereof may be restrained by injunction. This is an elementary principle, for as Lord Kingsdown said in Imperial Gas Light and Coke Co. v. Broadbent, (1859) 7 NLC 600, when a plaintiff applies for an injunction to restrain a violation of an alleged right, if the existence of the right be disputed, he must establish that right before he gets the injunction to prevent the recurrence of its violation."
Summing up the position Woodroffe in Law relating to Injunctions, 1988 Edition has stated ;
"A permanent injunction is only granted when (a) some established right has been invaded and (b) when damage has accrued or must necessarily accrue from the act or omission complained of. There must have been (a) a material injury to a clear legal right; and (b) damages must not be a sufficient compensation."
The position therefore is that when a plaintiff seeks the relief of injunction to protect a right by prescription claimed by him, what he does is to invite the Court to uphold his claim or right and to prevent interference with the exercise of that right.
6. It is also necessary to notice the distinction between Section 34 and Section 38 of the Specific Relief Act. Whereas under Section 34 of the Act the Court has the discretion to refuse the relief of declaration where the plaintiff being in a position to seek further reliefs than a mere declaration omits to do so, there is no such rider attached to Section 38 of the Act and Section 38 enables the plaintiff to get the preventive relief of injunction to prevent the breach of an obligation or the threat to invade the enjoyment of a property. Regarding claims based on easements, Section 35 of the Indian Easements Act provides that subject to the provisions of the Specific Relief Act, an injunction may be granted to restrain the disturbance of an easement. It is therefore possible to say that a suit for mere injunction complaining of attempted disturbance to an easement is maintainable and the Court is bound to grant that relief if a case is made out therefor. His Lordship Mr. Justice Padmanabhan in Krishna Pillai v. Kunju Pillai, (1990) 1 Ker LT 136 expressing reservations about the correctness of the decision in D. Ramanatha v. S. Razaack, AIR 1982 Kant 314 has observed :
"But that was a suit for injunction based on a prescriptive easement right for inflow of air and light through the windows and ventilators. The suit was dismissed on the ground that it is only for injunction andnot for declaration of the easement right. Easement right in that case was not put forward by way of defence by the defendant but brought by way of offence by the plaintiffs to get injunction without a declaration. With due respect, I cannot agree to that proposition also. Whether easement right is claimed by way of offence in any action in support of the prayer for injunction or by of defend to resist the claim for injunction, the question to be considered is whether the injunction could be allowed or not. Proof of existence or non-existence of that right alone is necessary to grant or refuse the prayer. It may not be correct to say that without the right being legally declared on the basis of a prayer the injunction cannot be allowed or refused. That decision is no authority for the position that in an injunction suit an easement right will not stand as a defence without a counter claim or fresh suit to establish that right."
In V. Ranga Rao v. S. Ramachandra Rao, AIR 1941 Mad 91, while considering therein a revision questioning the order regarding Court-fee payable in a suit, it was contended that a mere suit for injunction to protect an easement said to be subsisting was not maintainable and the plaintiff ought to have sued for a declaration. His Lordship Mr. Justice Wadsworth held that the plaintiff was not obliged to seek a declaration. His Lordship observed :
"It seems to me that on the frame of the present suit, all that the plaintiff has to do is to prove by evidence that he has a subsisting right of easement to the extent and of the nature claimed. If the evidence establishes the existence of this right, there is no legal impediment which has to be removed before the injunction protecting that right will be granted; and whether he has or has not sued for declaration, it is not necessary for him to pay Court-fee on the footing that the finding which he seeks as to his title is really a declaration, necessarily required as a preliminary to the grant of the injunction."
7. Learned counsel for the defendants referred pointedly to Section 15 of the Indian Easements Act and contended that unless the right is contested in a suit the right does not get recognised and therefore it is necessary for a person seeking relief on a claim that he was entitled to an easement by prescription to seek an adjudication of his right by way of prescription before seeking the necessary relief to protect that right. It was submitted that a right under Section 15 of the Indian Easements Act stood on a footing different from suits for establishment of other rights and in that context, neither Section 35 of the Indian Easements Act nor Section 38 of the Specific Relief Act dispenses with the requirement of the seeking of a declaration by the plaintiff. In addition to the decision of the Karnataka High Court in D. Ramanatha v. S. Razaack, AIR 1982 Kant 314 relied on by the lower appellate Court the decision of the Calcutta High Court in Siti Kantapal v. Radha Gobinda Sen, AIR 1929 Cal 542 was also cited. In that decision, the Division Bench of the Calcutta High Court held that :
"A title to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of suit."
8. In Colls v. H. and C. Stores, (1904-1907) All ER Reprint 5 considering the question of right to light in the light of Section 3 of the Prescription Act, 1832 it was stated by Lord Macnaghten (at page 12) :
"Unless and until the claim or matter is thus brought into question no absolute or indefeasible right can arise under the Act. There is what has been described as an inchoate right. The owner of the dominant tenement after twenty years' uninterrupted enjoyment is in a position to avail himself of the Act if his claim is brought into question. But in the meantime, however long the enjoyment may have been, his right is just the same, and the origin of his right is just the same as if the Act had never been passed. No title is as yet acquired under the Act."
This view was reiterated in Hyman v. Van Den Bergh, (1908) 1 Ch 167. Cozens Hardy M. R. stated the law thus :
"It is often asserted that an absolute right is obtained to access of light by reason merely of twenty years' undisturbed enjoyment, but I think this statement is too wide. Lord-Macnaghten in Colls v. Home and Colonial Stores, (1904) AC 179, 189, after referring to certain "expressions not perhaps sufficiently guarded" which are to be found in the judgment in the House of Lords in Tapling v. Jones, (1865) 11 HLC 290 said: "In that case Lord Westbury, Lord Cranworth, and Lord Chelmsford all assume that a period of twenty years' enjoyment of the access and use of light to a building creates an absolute and indefeasible right immediately on the expiration of the period of twenty years. No doubt Section 3 says so in terms, but Section 4 must be read in connection with Section 3; and if the two sections are read together it will be seen that the period is not a period in gross, but a period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question. Unless and until the claim or matter is thus brought into question, no absolute or indefeasible right can arise under the Act. There is what has been described as an inchoate right. The owner of the dominant tenement after twenty years' uninterrupted enjoyment is in a position to avail himself of the Act if his claim is brought into question. But in the meantime, however long the enjoyment may have been, his right as just the same, as the origin of his right is just the same, as if the Act had never been passed. No title is as yet acquired under the Act. This point seems to have been much discussed shortly after the Act was passed. It was finally settled in a series of cases at common law, beginning, I think, with Wright v. Williams, (1836) 1 M and W 77 and including Richards v. Fry, (1838) 7 Ad and E 698 and Cooper v. Hubbuck, (1862) 12 CB (NS) 456. If this is to be regarded as a decision upon Ss. 3 and 4, it is of course binding upon us. If, however, it is to be regarded only as a dictum of Lord Macnaghten, I desire respectfully to say that I agree with it, and I accept it as an accurate statement of the law."
In Sultan Ahamad v. Valiullah, (1912) 17 Ind Cas 22, Chemier, J. stated :
"The fifth paragraph of Section 15 of the Easements Act seems to render it impossible to acquire a statutory prescriptive title to an easement unless and until the claim thereto has been contested in a suit."
This view was adopted by the Madras High Court in Muthu Goundan v. Anantha Goundan, AIR 1916 Mad 1001 (2). Sadasiva Aiyar, J. after referring to the decisions referred to above has quoted from Peacock on Easements the following passage as reflecting the true statement of the law.
"The right is created upon the bringing of the first action in which, by reason of the claim having been brought into question, it becomes necessary for the person claiming such right to possess it for the purpose of his action or defence."
Dealing with a claim against transfer of a servient tenament the Division Bench of the Lahore High Court in Saya Ram Das v. Lahore Electric Supply Ltd., ILR (1943) Lahore 129 : (AIR 1942 Lahore 124) held that an easement differs in some respects from other rights in that the mere efflux of time does not create an easement. It is the action brought which turns the right into an indefeasible right. This view was adopted by Manoharan, J. in Kesavan Velayudhan v. Kannan Kunjukutty, (1991) 1 Ker LT 885 : (AIR 1992 Ker 163) wherein His Lordship held mat (at p. 168 of AIR):
"After 20 years user if the servient tenement is transferred to the Government no. vested right would be destroyed thereby. It is only on being brought into contest in a suit and the right is affirmed that the same matures into an indefeasible right. If the twenty years is brought into contest and is affirmed, the same would not be affected by the subsequent transfer of the servient tenement to the Government."
Thus there cannot be any dispute that a right by prescription become cohate only on it being contested in a suit and recognised by the Court.
9. It is in this context that the Karnataka High Court held in D. Ramanatha v. S. Razaack, AIR 1982 Kant 314 that a suit for mere injunction is not maintainable when the suit is based on alleged prescriptive right without a prayer for declaration that the plaintiff has acquired such prescriptive right. His Lordship Justice Sabhahit placed reliance on the decision of the Madras High Court in Muthu Goundan v. Anantha Goundan, AIR 1916 Mad 1001 (2) and of the Calcutta High Court in Siti Kantapal v. Radha Gobinda Sen, AIR 1929 Cal 542 referred to above. After quoting the relevant passage from the decision of the Calcutta High Court His Lordship recorded his conclusion thus :
"It is, therefore, necessary that in a suit for inj unction based on a prescriptive easement right, the plaintiff should seek for a declaration from the Court that he has so acquired the prescriptive right of easement. In the present suit, however, the plaintiff has not sought for declaration that he has acquired prescriptive right of easement with regard to the inflow of air and light through the windows and ventilators. Without more, therefore, the suit is liable to be dismissed. The Courts below have obviously missed this legal aspect."
I may say with respect, that the fact that the title to the easement is not complete until the right is brought in question in some suit and it is recognised, does not necessarily lead to the conclusion that in a suit to prevent interruption of the enjoyment of the right, the plaintiff must also seek a relief by way of declaration of the right of prescriptive easement. Would it not be sufficient if in the suit he has filed, whether it be for mandatory injunction or for a prohibitory injunction, the plaintiff first establishes that he has acquired a right by prescription so as to be in a position to invite the Court to grant him the decree for injunction sought for by him? It appears to me that it is one thing to say that the right must be recognised by the Court before it became cohate and enforceable and quite another thing to say that a formal declaration of such right by Court is necessary to entitle him to relief.
10. In Indumatiben v. Union of India, AIR 1969 Bom 423, Mr. Justice Nain referred to the difference between Section 34 of the Specific Relief Act on the one hand and Sections 37 and 38 on the other. His Lordship held as follows (Para 5) :
"Coming to the form of the suit, the suit is so framed as to be a suit for an injunction. Under Section 34 of the Specific Relief Act of 1963, a person may file a suit for a declaration as to any legal character, or as to any right to any property. This is a discretionary relief. Section 34 provides that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Section 37 pertains to injunctions. Sub-section (2) provides that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, from the commission of an act, which would be contrary to the rights of the plaintiff. Section 38 prescribes when a perpetual injunction may be granted. The difference between Section 34 on the one hand and Sections 37 and 38 on the other hand is that the Court may not grant a declaration where the matter is capable of consequential relief. But there is no such restriction put on injunctions and the Court may grant an injunction as a substantive relief without any prayer for declaration, although in many cases a declaration, may be implicit in the grant of a perpetual injunction."
11. Relying on the decision of the House of Lords in Imperial Gas Co. v. Broadbent, (1859) 7 HLC 600 (612) in Gale on Easements it is stated :
"Before a perpetual injunction can be granted to restrain a private nuisance or the disturbance of an easement, the Court as a general rule requires the party to establish his legal right arid the fact of its violation. But when these things have been established, then, unless there be something special in the case, the party is entitled is of course to an injunction to prevent the recurrence of that violation."
Dr. Justice Kochu Thommen (as he then was) in Padmavathi v. Kesava Reddi, (1987) 2 Ker LT 386 held that in a suit for recovery of possession on the strength of title, a plaintiff was not obliged to seek the relief of declaration of his title and the suit could be maintained even without such a prayer. His Lordship has referred to and followed the decision of the Full Bench of the Patna High Court in Ramkhelawan Sahu v. Bir Surendra Sahi, AIR 1938 Pat 22. The Patna High Court observed in that decision :
"It would seem that there is much misunderstanding in India as to the legal meaning of the word 'declaration' as applied to a remedy to be granted by a Court. The habit has grown up of describing a suit for possession of property as being a suit 'for a declaration of title together with a decree for possession of the property in 'suit', and the word 'declaration' has been used to mean what would more correctly be described as the finding of fact necessary before the decree for possession can be granted. In every suit for possession the plaintiff cannot succeed unless he proves the facts necessary to establish his title, but the real remedy which he seeks is a decree for delivery of possession."
Though that decision related to the relief of recovery of possession and was not relating to a case where the claim for relief was based on a right by prescription coming under Section 15 of the Easements Act, the ratio of that decision does indicate that for getting effective relief which could otherwise be granted, a plaintiff is not obliged to seek a declaration of his right as well.
12. When a plaintiff filed a suit for a perpetual injunction restraining the disturbance of his right by prescription, he complains either of an attempt to interfere with his right or of an actual interference with his right. In appropriate cases therefore he also seeks the relief of mandatory injunction to remove any such obstruction of his rights. When a suit is thus filed for prevention of interference with the prescriptive right, there has already occurred a disturbance to that right. It would not therefore be a case where the relief is sought at a stage before the status quo has been disturbed. The scope of a declaration in such a suit will come within the third class referred to in Manjural Haque's case, AIR 1943 Cal 361, that the declaration of right is made as introductory to the relief granted by the Court. Therefore in a case where a plaintiff claims a right by way of prescription and alleges interference with the exercise of that right he seeks the relief of injunction on establishing his right by prescription, as entitling him to the relief of injunction. So viewed, it would be possible to say that a suit for injunction to protect a right by prescription or to prevent interference with a right by prescription, really implies the seeking of a relief of declaration of the right as well. Thus in every adjudication in a suit for injunction based on a claim of right by prescription, what is involved is an adjudication of the right claimed by the plaintiff and on his establishing the right the grant or refusal of injunction on well accepted principles delating to the grant of a decree for injunction.
13. In this context it has to be noticed that Section 35 of the Indian Easements Act specifically provides that subject to the provisions of the Specific Relief Act Sections 52 to 57, corresponding to Sections 36 to 39, 41 and 42 of the Specific Relief Act, 1963, if an easement is actually disturbed or if the disturbance is only threatened or intended so as to disturb the easement, and injunction can be granted to restrain the disturbance. Section 35 of the Easements Act covers both the situations, one, where there is an actual disturbance and two, where there is only a threatened disturbance. In Cowper v. Laidler, (1903) 2 Ch 337 it was held that the easement was a legal right. The remedy by injunction was in aid of that legal right. The owner of the right was entitled to an injunction not in the discretion of the Court but as a matter of course; unless there is something special in the case like laches or the fact that the disturbance was only trivial or occasional. The Patna High Court in S. L. Jha v. U. Jha, AIR 1972 Pat 490 held that where the plaintiff has established his legal right of easement and the fact of its disturbance he is entitled to a permanent injunction without proof of substantial damage to avoid multiplicity of proceedings. The Privy Council in Paul v. Robson, 41 Ind App 180 : (AIR 1914 PC 45) dealing with the right to light claimed under Section 15 of the Easements Act has observed that the owner of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind. The single question in these cases is whether the obstruction complained of is a nuisance. Once such nuisance is established, the owner of the dominant tenement would be entitled to the relief of injunction in terms of the Specific Relief Act and Section 35 of the Easements Act. There is no warrant for reading into Section 38 of the Specific Relief Act or Section 35 of the Easements Act, a requirement that in a suit by the dominant owner he must also seek the relief of a declaration of his right by| prescription.
14. Thus on a consideration of the relevant aspects I am not in a position to accept the contention that a suit for injunction to protect an easement by prescription or to prevent an obstruction to an easement by prescription is not maintainable unless there is also a prayer for declaration of the right. But that is not to say that a plaintiff in such a suit has not the burden to establish his right by prescription. Only by establishing his right by prescription and by getting it recognised by the Court can the plaintiff get the relief of injunction for protection of that right. Therefore in every such suit for an injunction restraining interference with an easement by prescription, there is an obligation in the plaintiff to get an issue framed on the right by prescription claimed by him and to seek an adjudication on that issue so as to entitle him to relief of injunction on his establishing his right. The fact that the claim for a formal declaration of right by prescription is not needed, does not absolve the plaintiff of his obligation to prove the right and the Court would not be in a position to grant relief to the plaintiff unless and until it enters a clear finding on the relevant issue that the plaintiff has established a right by prescription. In other words what is needed is only an establishment of the right by prescription in the Court as a prelude to get a decree for injunction prohibitory or mandatory.
15. The lower appellate Court has dismissed the suit filed by the plaintiff in the present case on the ground that he has not sought a declaration of his right of way by prescription. In the view I have taken, the position adopted by the lower appellate Court cannot be sustained. In the present suit a specific issue whether the plaintiffs have acquired a right of easement as claimed in the plaint was raised by the trial Court and answered in favour of the plaintiffs. The appellate Court did not formulate a specific point on whether the right of easement by prescription has been established by the plaintiffs. It merely entered a finding that the disputed pathway was being used by the plaintiffs for their ingress into and egress from their residential compound and for taking but their cattle. Though it appears that the lower appellate Court was inclined to accept the evidence on the side of the plaintiffs, the lower appellate Court has not entered a clear finding whether the plaintiffs have established the user of a pathway as described in the plaint schedule as of right openly and without interruption for the requisite statutory period. Necessary finding in that manner has not been rendered by the lower appellate Court probably because of the view it took that the plaintiffs could not be given any relief in the suit since they have not claimed a declaration of their right of easement by prescription. For enabling the Court to frame a specific point on whether the right by prescription has been established by the plaintiffs and to enter a proper finding on that point and then decide whether the plaintiffs are entitled to the decree for injunction sought for by them, the matter has to be remitted to the lower appellate Court.
I therefore allow this Second Appeal, set aside the judgment and decree of the lower appellate Court and remit the appeal A.S. 84 of 1986 to that Court for deciding the appeal afresh and in accordance with law and in the light of the observations contained in this judgment. The lower appellate Court will formulate the necessary points for decision as indicated in this judgment and enter clear findings on those points and dispose of the appeal afresh in accordance with law. The dismissal of the suit on the ground that without a prayer for declaration of their rights plaintiffs are not entitled to relief is found unsustainable. The parties are directed to appear before the lower appellate Court on 15-2-1999.