JUDGMENT:- This is a second appeal by Vidya Sagar and Ram Sunder, defendants 1 and 2, respectively; Ram Das plaintiff-respondent No. 1 filed a suit against Vidya Sagar and Ram Das, defendants 1 and 2 Puddan defendant No. 3 and Razi Haider defendant No. 4. The plaint allegations were that the plaintiff held certain agricultural plots mentioned in para 1 of the plaint; to the North of these plots exists plot No. 340 which originally belonged to Puddan, respondent-defendant No. 3, and to the immediate West of the said plot there is plot No. 354 in the tenancy of Ram Sunder, defendant No. 2. Puddan sold the western part of plot No. 340 to Vidya Sagar, defendant No. 1 appellant. There existed a 10 Ft. wide passage over plot No. 340 in western extreme where it meets plot No. 354. The plaintiff claimed to have been using this passage for going to his southern fields and had also been taking his bullocks and cows over this passage to his fields. He, therefore, claimed having acquired easementary right by prescription over this passage. It was alleged that the appellant Vidya Sagar had made an encroachment over this passage by constructing an Abata. It was further alleged in the plaint that the disputed passage, which had been encroached upon by Vidya Sagar, was the only passage by which the respondent Ram Das could reach his fields and a claim was also set up on the basis of easement of necessity. On these facts and allegations the plaintiff prayed for a decree for demolition of constructions made on the Ahata by Vidya Sagar and for restoration of his passage. The contesting defendants 1 and 2 denied existence of any passage between plots Nos. 354 and 340. They also denied that the disputed land was ever used by the respondent Ram Das as a passage to his fields. The trial court dismissed the suit holding that Ram Das had failed to establish that he had acquired any easementary right to use the land in dispute as a passage and as far as the claim of easementary necessity was concerned the finding was that an alternative passage was available to the plaintiff for approaching his fields and the claim could not be sustained on the basis of easement of necessity. The suit having been dismissed Ram Das appealed and the District Judge allowed the appeal holding that there was a 5 Ft. wide passage between plots Nos. 354 and 340 and the respondent Ram Das had succeeded in proving that he had been passing over this passage to his fields and also taking his bullocks through it for a statutory period and had thereby acquired right of easement by prescription. The judgment and decree of the trial court were set aside. Defendants 1 and 2 were directed to remove the construction which, on demarcation, was found to fall within their plots. It is in these circumstances that the defendants have come to this Court in second appeal.

2. I have heard learned counsel for the parties. The first submission is that no case of acquisition of easementary right by prescription was set up in the plaint and, therefore, the lower appellate court was in error in spelling out a new case of that kind for the plaintiff. This submission, however, does not appear borne out from the plaint because in para 1 of the plaint there was an averment suggesting long user of the disputed land as a passage.

3. The next submission is that there was no evidence to support the lower appellate Court's finding that there was 10 Ft. wide passage between plots Nos. 354 and 340 and that the respondent had been using any such passage either for himself going to his fields or taking his bullocks to the fields. In this connection it is submitted that all that was established from the evidence of defendant's witnesses was that there was a Mend between these two plots and it was this Mend which was being used by Ram Das for going to his fields and for taking his bullocks but it was submitted that this was permissive use of the Mend and there was no evidence that the plaintiff had been using the Me

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