1. Second appeal is by the plaintiffs, in a suit for permanent prohibitory injunction, who lost in both the courts below.

2. The suit property is nearly two acres of land, which is admittedly owned and possessed by the appellants. Respondents are the adjacent owners. They are sought to be injuncted from taking forcible possession of the suit property or disturbing the peaceful possession of the appellants on the allegation that they are going to take possession by force. Respondents denied these allegations and admitted the title and possession of the appellants. Their only defence is that there is a pathway through the plaint schedule property, over which they acquired a prescriptive easement for ingress and egress to their property and building and the object of the present suit is only to deprive them of that right under the cover of injunction without disclosing the real facts. Issue No.2 is concerning the easement right.

3. Trial court as well as the appellate court found on the evidence that there is a pathway through the plaint schedule property which is being used by the respondents. So also, the finding is that except the user of the pathway, respondents never interfered with the proprietary rights of the appellants giving rise to a cause of action for injunction. There is no serious dispute on these aspects, except denial of the

easement right coupled with a contention that user of the pathway is only by way of permission which was withdrawn and not as of right. The main contention of the appellants is that a prescriptive right of easement cannot be accepted as a defence in a suit for-injunction and the only remedies open to the respondents are to establish the right by way of counter claim or a declaratory relief in a suit. Rejecting these contentions, trial court dismissed the suit holding that the respondents acquired a prescriptive easement right. But the appellate court disagreed and said that without a counter claim the prescriptive easement right cannot be considered by way of defence. The finding of prescriptive easement right was vacated and Issue No.2 was deleted as unnecessary since the suit is one for injunction where possession alone is material. But the dismissal of the suit was confirmed on the finding that respondents are using the pathway and they cannot be restrained.

4. The only substantial question of law argued for entertaining this second appeal is whether the dismissal of the suit is justified as such a claim was put forward only byway of defence without a counter claim or a suit. Reliance was placed on the decision in D. Ramanatha Gupta v. S. Razaack (AIR 1982 Karnataka 314), which held that a right of easement by prescription cannot become absolute unless the right has been contested in a suit and that easement is not complete merely upon the affliction of the period of 20 years. That decision also said that however long the actual period of 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 not 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 two years of the institution of the suit. We are not at that question now in view of the stand taken by the District Judge, on which I have my own reservations.

5. 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 and not 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