BHANDARI, J.—This Civil Second Appeal by the defendant arises under the following circumstances.

2. Two houses adjacent to each other as shown in plaint (Ex. 3) on the record situated in Jodhpur City formed one single house at one time. Of these two houses, the southern house belongs to Mst. Sardari plaintiff-respondent, while the northern house belongs to Mst Shiv Pyari defendant-appellant. Outside both the houses, there is a Chabutra with a staircase which is marked by letters EBCF in the plan. Part of the Chabutra is in front of the house of Mst. Sardari, while the rest with the staircase is in front of the house of Mst. Shiv Pyari. In front of both the houses, there is a public road. The case of the plaintiff is that to have access to the public road from her house, she has to make use of the Chabutra and the staircase marked ABCD in front of the house of the defendant. She claimed that she had the right of easement of necessity to the use of the Chabutra ABCD with the staircase as there was no other way to go to the public road from her house. She further claimed that she had acquired the right of easement by way of prescription as she and her predecessors-in-title had been using the Chabutra ABCD and the staircase for going and coming out of their house for more than 20 years. In the suit Bhanwarlal husband of Mst. Shiv Pyari has also been made a defendant. It is alleged that the defendants had placed three slabs at the place AB on the Chabutra ABCD in order to obstruct the plaintiffs passage to her house. She, therefore, prayed for a declaration that she had a right of easement as described above and further prayed for the removal of the obstruction and also for grant of a permanent injunction restraining the defendants from placing any obstruction in her way in future. The trial court decreed the plaintiffs claim holding that the plaintiff had acquired the right of easement by prescription over the Chabutra ABCD and the staircase. The decree was maintained in first appeal by the defendants. Hence this second appeal on behalf of the defendants.

3. For proper appreciation of the arguments of the learned counsel for the defendant-appellants in this case, it may be mentioned that at one time the house of the plaintiff belonged to Prem Shanker while the house of the defendant belonged to Sada Shanker who were members of the same family. On the death of Prem Shanker his daughter Mst. Naraini, the mother of the plaintiff, inherited the house and after her death, the plaintiff inherited it. Mst. Shiv Pyari became the owner of the other house as Sada Shanker gifted the same to her. Mst. Naraini, the mother of the plaintiff filed a suit for possession of the house now belonging to Mst. Shiv Pyari defendant claiming to be the owner thereof. The date of the filing of the suit is not on record, but the Chief Court of the former Jodhpur State finally decided it on appeal on 5th April, 1944. It was held by the said Chief Court that Mst. Naraini had no right or title to that house. The suit out of which this appeal has arisen, was instituted on 6th September, 1956, within 20 years of the filing of the suit by Mst. Naraini for possession of the house.

4. The contention of the learned counsel for the appellants is that as Mst. Naraini had claimed to be the owner of the disputed Chabutra and the staircase within 20th years of the filing of the present suit, she cannot be said to have acquired right of easement by prescription, even though Mst. Naraini and her daughter might have been using the same as a way to their house. It is contended that a person can claim right of way only when he has enjoyed the same as an easement for all the period of 20 years, that is, during all this period he must have had the animus to enjoy the other property as an easement, and unless he has such animus, he cannot be said to have acquired any right of easement. The reply to this argument by the learned counsel for the respondent is that in the matter of acqu

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