The main legal point established in the judgment is the importance of the animus of the plaintiff in determining the nature of the right claimed and the assertion of a hostile claim with consciousness to exercise such a claim on the property of others.

( 1 ) RESPONDENT Nos. 1 and 2. plaintiffs had filed a Civil Suit No. 25-A/92 before Civil Judge Class II, Chanderi for declaration and mandatory permanent injunction on the ground that by long user they have acquired right of way from the land situated in front of the house of the defendants which now has been obstructed by raising a wall by defendants. The defendants contested the suit on the ground that the land belongs to them and the plaintiffs have never used the land as a way leading to the main road.

( 2 ) LEARNED trial Court by judgment dated 15. 3. 1995 decreed the suit and held that the disputed land is a common way for both parties and, therefore, directed the defendants to remove the obstruction or else it has to be removed by the process of the Court. The defendants filed Civil Appeal No. 6-A/95, and the Additional Judge to the Court of District judge, Guna, at Mungaoli by his judgment and decree dated 8. 7. 1996 dismissed the appeal and confirmed the findings of the trial Court, against which this Second Appeal has been admitted on the following substantial questions of law;" (1) Whether the Courts below have erred in decreeing the suit on the basis of the prescriptive easement in spite of the fact that there were no pleadings in this regard ? (2) Whether the Court below has erred in carving out a new case for the plaintiff for which no foundation had been laid in the pleadings?"

( 3 ) LEARNED counsel of the appellants has contended that the plaint is hopelessly lacking necessary ingredients requiring to prove easementary right of way, first, beacause the plaintiffs apart from their right to pass from the land also claimed the land as its owner and, secondly, it is not pleaded as to for how many years the way is used as an easementay right, and in these circumstances the suit itself is not mantainable. Reliance'is placed on a decision of this Court in case of Hirabai and others v. Ramprasad and others, where in it has been observed that the words "as an easement and as of right" as used under the provisions of section 15 of the Easement Act clearly indicate that it is a restriction in favour of the owner or occupier of the immovable property of the rights of ownership of the immovable property of another owner. The restriction cannot be built up or asserted without consciousness of the rights which are restricted. If the right that a person is exercising is not with the consciousness that he is restricting another person's right of ownership, he cannot be said to be enjoying a right of easement. Whether the right claimed as 'easement" or "as rights of ownership" depends upon what the plaintiff intended to do. The question of the animus of plantiff, therefore, requires determination in each case.

( 4 ) INSOFAR as the present case is concerned no doubt, in para 3 of the plaint it has been asserted that the disputed land over which the plaintiffs have acquired the right of way, is in their ownership and possession. But this assertion is to be read with facts as narrated in para 2 of the plaint, wherein it has been clearly mentioned that previously the land and the house of the defendants belonged to the father of the plaintiffs, and since the father of the plaintiffs and the father of the defendants were related to each other, this land and the house passed to the ownership of the defendants. From reading the plaint in its totality it can be ascertained that although previously the land had belonged to the father of the plaintiffs, subsequently it was transferred by consent to the father of the defendants. However, the right to pass from the disputed land continued with the plaintiffs. In the circumstances, i am of the opinion, that there is sufficient pleadings regarding right of easement although the word "easement" as such has not been mentioned in the plaint. Merely by non-mentioning the word "easement" the case of the plaintiffs cannot be thrown out without granting necessary relief. It has furth