A. Hariprasad, J.

1. This second appeal is preferred by the defendants in a suit for declaration of a right of way acquired under the provisions of the Indian Easements Act, 1882 (in short “the Act”) and for a permanent prohibitory injunction against causing any disturbance to their right. Suit was dismissed by the trial court. First appellate court reversed the trial court's decree and granted reliefs to the original respondent (plaintiff). Subsequently he died, his legal representatives are respondents 2 to 5. Original appellants also died. Their legal representatives are additional appellants 3 to 10 and additional respondents 6 and 7.

2. Short facts relevant are as follows: Property described in plaint A schedule was allotted to the plaintiff's mother Kunjilakutty as per a partition deed of the year 1955. That document was not produced by the plaintiff. Kunjilakutty was in possession and enjoyment of the property till her death in the year 1988. She had executed a registered Will in 1979 bequeathing the property to the plaintiff. After her death, the Will came into effect and the plaintiff obtained right, title and possession over plaint A schedule property. That Will was also not produced by the plaintiff. Plaintiff's family house is situated on the western portion of plaint A schedule property. On the eastern portion, an old shed existed, where the plaintiff conducted business in hay. Plaint B schedule property is the way leading to the eastern portion of plaint A schedule property. That is the only way to the eastern side of plaint A schedule. Plaintiff and his predecessors were conducting hay business since last more than 60 years. Plaint B schedule way is an ancient way used for that purpose. Plaintiff and his predecessors used plaint B schedule way openly, continuously, peaceably without objection, as of right and as an easement for more than 60 years and thereby they have acquired a prescriptive easement right over plaint B schedule pathway. Since the residential building occupied the entire western portion abutting a public road, there is no other access to enter the hay shed on the eastern portion of plaint A schedule property. Plaintiff was also entitled to use plaint B schedule way by easement of necessity as well, as originally plaint A and B schedule properties belonged to a common owner and by severance it devolved on different persons.

3. 1st defendant was the daughter of plaintiff's maternal aunt and 2nd defendant was her husband. As per the 1955 partition deed mentioned above, a portion of land, including the plaint B schedule pathway, was allotted to the share of the 1st defendant's mother Elia. When the defendants tried to block the pathway, the suit was filed.

4. Appellants/defendants contended in their written statement that the respondent/plaintiff was not entitled to claim easement of necessity or easement by prescription in respect of plaint B schedule. Further, both the claims made simultaneously are incongruous to one another and for that reason alone the suit could not be maintained. Plaintiff was not conducting any business in plaint A schedule property. Plaintiff was put to strict proof that plaint A schedule property belonged to his mother Kunjilakutty. The contention that he obtained right over plaint A schedule property by virtue of his mother's Will is also denied. Unless and until the Will was probated, the plaintiff could not have acquired any right over plaint A schedule property. Plaintiff was conducting business in second hand building materials, motor, pump sets, etc. Five years before the suit, the plaintiff stopped business in hay. Neither the plaintiff nor his predecessors used plaint B schedule property as a pathway. Access to plaint A schedule property was directly from the main road on the western side. Through the northern side of the plaintiff's property, in between his property and that of his brother, there was an ancient way, having a width of 5 ft. About 6 years ago,