User as an owner cannot be relied upon to establish an easement.

( 1 ) THIS is an appeal by the defendants from a decision of the Additional District Judge of Ujjain confirming the judgment and decree ot the Civil Judge, Second Class, Ujjain, whereby the defendants have been restrained from interfering and disturbing in any way the plaintiff's right ot way over a piece of land belonging to the appellants.

( 2 ) THE plaintiff's case as originally laid, was that he and the defendants were owners of adjacent houses; that in between the houses there was a joint piece of land over which he had a right to pass and repass; that the defendants were interfering with his right of using this land; and that, therefore, it should be partitioned and he be put in possession of his share. During the pendency of the suit, the plaint was amended and the plaintiff alleged in the alternative that if the land in question was held to be the exclusive property of the defendants, then he had a right of way over the kind and that, therefore, the defendants should be restrained from interfering with his right of passage over the land. The defendants denied that the land was joint property. They claimed that the land belonged to them only and that the plaintiff had no right of way over the land.

( 3 ) AT the trial, the plaintiff first led evidence to show that he was using the land as a passage in his own right as a co-owner. Alter amending the plaint, he tendered evidence to show that he was using the land for passing for over twenty years. Both the courts below found this evidence of user as sufficient to prove the right of way claimed by the plaintiff and decreed his claim accordingly. The defendants have now preferred this appeal.

( 4 ) HAVING heard learned counsel for the parties, I have reached the conclusion that this appeal must be accepted. Before a right of way can be acquired as an easement, it is necessary to prove that (i) there has been an actual enjoyment of that right (ii) the enjoyment has been open (iii) it has been peaceable (iv) it has been as of right, (v) it has been as an easement (vi) the easement was enjoyed and without Interruption, and (vii) it has been enjoyed for twenty years. The evidence which the plaintiff produced to support his right of way consists of vague and general statements about his user of the land as passage. That evidence does not at all indicate with any precision the land which the plaintiff was using as a passage, the purpose for which it was being used and whether the user of the land was open, peaceable, uninterrupted and as an easement. In coming to the conclusion that the plaintiff had a right of way, the learned trial judge was influenced mainly by a statement in the evidence of Isaji that adjoining to the plaintiff's house there was once a Chabutara standing on a land admeasuring 5' x 6'; that when this Chabutara was demolished the land was being used by himself and the plaintiff as a passage; that this land was being so used for over fifty years; and that the plaintiff had taken possession of this land. The learned judge thought that this statement was a clear admission on the part of the defendants that the plaintiff had a right of way. The learned judge overlooked the fact that the land to which Isaji referred in his statement was not the one over which the plaintiff was claiming the easement of the right of way. Neither the trial judge nor the appellate judge gave any consideration to the question whether this user of the land by the plaintiff was as an casement.

( 5 ) EVEN if it is held that the plaintiff has been using the land as a passage for some years, that fact cannot in the instant case lead to the conclusion that the plaintiff's use of the land was in the exercise of his right of easement. It must be remembered that in this case the plaintiff first came forward with the case that the land in question was the joint property of the parties and as a co owner be had a right to use the land. He then amended the plaint and took the alternati