The main legal point established in the judgment is that the plaintiffs failed to prove all the ingredients required to constitute a claim of easement by prescription, but the court set aside the judgments and decrees passed by both the courts below and remitted the suit to the trial court for fresh disposal in accordance with law, allowing both parties to adduce further evidence if required.

Challenging the concurrent findings entered by the Munsiff's Court, Karunagappally in O.S.No.189 of 2013 followed by those of the Subordinate Judge's Court, Karunagappally in A.S.No.78 of 2015, the plaintiffs in O.S.No.189/2013 has come with this second appeal.

2. The suit is one for declaration of the prescriptive right of easement of the plaintiffs over plaint C schedule property as a pathway for having access to the northern public road from plaint A schedule properties.

3. The case of the plaintiffs is that plaint A schedule item No.1 having an extent of four cents belongs to the first plaintiff and plaint A schedule item No.2 property having an extent of four cents belongs to the 2nd plaintiff. The plaint B schedule property belongs to the defendant. Major portions of plaint B schedule is situated at the northern side of plaint A schedule item No.2 property and the remaining portions of the plaint B schedule item is situated at the eastern side of plaint A schedule item No.2 property. The said portions of plaint B schedule property situated at the eastern side of plaint A schedule item No.2 property which extends up to the northern Panchayat road is lying as a pathway.

4. The 2nd plaintiff is the first plaintiff's elder brother's wife. According to the plaintiffs, the said pathway presently extends up to the 18 cents of property of the defendant situated at the southern side of 30 cents of property belonging to one Haseena. The said property of Haseena is situated at the southern side of the plaint A schedule properties. According to the plaintiffs, their predecessors-in-interest of the property and in continuation the plaintiffs, have been making use of the said eastern pathway for having access from plaint A schedule items to the northern Panchayat road as well as having access to the said properties from the said Panchayat road, for the last more than 100 years. It has been specifically pleaded that the plaintiffs and their predecessors-in-interest have been making use of the pathway for more than 100 years as of right, openly, continuously and uninterruptedly and therefore, they have right by way of easement by prescription over plaint C schedule property for making use of the same as a pathway. According to the plaintiffs, their user of the plaint C schedule pathway was attempted to be obstructed by the defendant and his family members and consequently they had to file the suit.

5. The defendant contended that there is no such pathway as plaint C schedule in existence; whereas, the said portion being claimed as a pathway by the plaintiffs is the property of the defendant. According to the defendant, 22 cents of property of which the plaint A schedule items were a part was the property of late Balakrishnan Nair, who is none other than the father of the first plaintiff, and that Balakrishnan Nair gave the said properties to his children including the first plaintiff. It is their case that the said 22 cents of property was abutting the northern Panchayat road, and when such severance of tenements were there, it is for them to carve out a pathway to the various portions of the said properties. It is specifically contended that the plaintiffs have no occasion to make use of the eastern portion of the plaint B schedule as a pathway. According to the defendant, on 09.04.2013 he along with one Haseena, whose property is situated at the southern side of plaint A schedule properties, had entered into an agreement for making use of the eastern portion of the plaint B schedule property as well as Haseena's property, as a pathway for Haseena to have access to her property and also for the defendant to have access to his 18 cents of property situated at the southern side of Haseena's property. According to the defendant, no other persons have any right to make use of the said portion as a pathway.

6. After recording the evidence and on hearing both the sides, the trial court took the view that the plaintiffs had failed to pro