The central legal point established in the judgment is the distinction between easement by prescription and easement of necessity, emphasizing the legal consequences of coalescing ownership and possession in determining the continuation or termination of easement rights.

T.C. Raghavan, J.

1. A short question relating to easements is raised in this second appeal, The concurrent findings of the lower courts regarding facts have to be accepted; but the legal consequences of those findings have to be carefully scrutinised.

2. Ext. P. 1 is the plan prepared by the commissioner and Ext. P. 2 is his report. The A schedule property shown in Ext. P. 1 belongs to the plaintiff and he has a house thereon facing east. The B schedule property lying to the east of the A schedule belongs to the 1st defendant and defendants 2 and 3 are living in the house shown thereon. The property lying to the north of the A schedule belongs to the plaintiff's wife and the property on the west of the A schedule belongs to a third party. The plaintiff's suit was for declaration of a right of easement of way across the B schedule to the panchayat road on the east. The plaintiff has a gate on his eastern compound wall and there is a bridge across the canal shown in the schedule. Thus the way leads to the panchayat road. Both the lower courts have decreed the suit for declaration and have also granted an injunction against the defendants not to interfere with the use of the way by the plaintiff. The lower courts have held that the plaintiff has perfected a right of easement of way both by prescription and as an easement of necessity. Hence the second appeal by the 1st defendant.

3. The lower courts have found as a fact from the oral evidence as well as from the report of the commissioner that the alleged passage must have been used by the plaintiff and his predecessor for the last 30 to 35 years. They have also found that such user was as of right. Consequently, they have found that the plaintiff has perfected his easement by prescription. The finding of the courts below that the passage must have been used by the plaintiff and his predecessor for 30 to 35 years has to be accepted. Even so, the finding that such user was as of right cannot be sustained. One does not know whether the B schedule property was fenced during this period: it appears to be not. If the B schedule property was not fenced and if the plaintiff and his predecessor just used the passage without any objection from the owner of the B schedule property, it does not necessarily mean that the user was as of right; for , it is well known that the owners of properties in India are not so zealous of their ownership as in England; and therefore, the user of the passage across the B schedule might be even traced to a tacit consent given by its owner. In this connection it will be worth while to remember that the A schedule has outlets both on the west and on the north, though across other properties, which fact will be adverted to in more detail later. (Vide Narayana Shenoi v. Narayan Kunjan, ILR 1956 TC 842).

4. The A schedule property originally belonged to the plaintiff's father and he purchased the B schedule property in Makaram 1095 under Ext. D1. In 1107 he was adjudged insolvent and the Official Receiver took possession of his properties including the A and the B schedule properties. Under Ext. P. 3 of Vrischikam 1111 the Receiver sold the A schedule property to the insolvent's son and the plaintiff is now the owner of that property. The B schedule property was sold by the Receiver under Ext. D. 3 again in Vrischikam 1111 to a person named Poulose, from whom the 1st defendant has subsequently purchased the same.

5. In the light of the facts mentioned in the previous paragraph, even if it is accepted for the sake of argument that the user was as of right, even then, there is no evidence that such user continued for twenty years prior to Ext. D, 1. If by continuous user as of right for twenty years, a prescriptive right of easement was not perfected prior to 1095, the easement could not have been perfected thereafter when the ownership of both the A and the B schedule properties coalesced in one, the plaintiff's father. Secondly, even if it is accepted, once