A title of easement is not complete unless it is adjudicated against a servient owner.

( 1 ) THIS is a plaintiffs' second appeal against the judgment and decree dated 2nd February, 1994, passed by the District Judge, Guna in Civil Appeal No. 6-A/80 reversing the judgment and decree dated 31st August, 1980, passed in Civil Suit No. 27-A/80 by the Civil Judge, Class I, Guna.

( 2 ) THE appeal was admitted by this Court on 8-8-1994 on the following substantial question of law:"whether the suit was wrongly dismissed by the appellate Court with the observation that the plaintiffs have not proved that the right was used as an easementary right and this finding is against the record. "

( 3 ) FACTS giving rise to this appeal are thus : The plaintiffs instituted a Civil Suit on 9-4-1979 for declaration and permanent injunction to restrain the defendant-Thakuri (since deceased) from interfering with their right of way from the ancient door which opens on the agricultural field on the East side of the defendant and joins the thorough-fare which is at a distance of about 10 to 15 feet, shown in the map annexed with the plaint. The plaintiffs averred that they are using the way from their door to go to main pathway as an easement. The defendant by raising the construction is obstructing the right of way of the plaintiffs. Therefore, the defendant be permanently restrained from raising the construction.

( 4 ) THE defendant denied the right of way from his land and contended that the land is open agricultural land which he used to cultivate by putting Bagad. There is no right of way nor the land is used as Nistar. Plaintiffs have their main gate which opens on the thoroughfare.

( 5 ) THE trial Court, after appreciation of evidence adduced by the parties, decreed the suit.

( 6 ) THE Lower Appellate Court, in appeal, dismissed the suit, holding, that the plaintiffs have failed to establish their easementary right of way by prescription.

( 7 ) AGGRIEVED of this judgment and decree, the plaintiffs filed Second Appeal No. 166/81, which was allowed on 27-8-1982 and the case was remitted to the Lower Appellate Court for rendering a fresh decision after hearing parties and proper marshalling of the evidence.

( 8 ) THE Lower Appellate Court, after reappraisal and marshalling of evidence, observed that though the plaintiffs were using the way since more than 20 years; but the land is open agricultural land over which the defendant used to cultivate every year. From the door, the distance to the main thoroughfare is about 10 hands, that is, in between 10 to 15 feet. Therefore, the total area of open land of the defendant cannot be used as easement. Ordinarily 5 feet wide area of the land would be sufficient for use of the way for pedestrian, cycle or scooter etc. The plaintiffs have their main gate/door which opens on the main thoroughfare. The plaintiffs' case is not of easement of necessity but of acquisition of right by prescription. In order to establish the right of pathway by the plaintiffs, it must be shown that the enjoyment of such right by the plaintiffs was peaceable and open and that the pathway was being used as of right as an easement without interruption over a period of 20 years. The use of the land during the period when there is no agriculture, was mere permissive looking to relations between the parties. The plaintiffs have failed to plead and prove the user of the way that has ripened into right of easement by prescription. Therefore, the Lower Appellate Court dismissed the suit.

( 9 ) AFTER the close of hearing of this appeal, the appellants filed an application, on 20-2-1998, under Order 6, Rule 17 of the Code of Civil Procedure, to amend the plaint of which reply was filed by the respondent to oppose the amendment.

( 10 ) THE plaintiffs in their suit seek a declaration and permanent injunction to restrain the defendant from interfering with their right of way through the door on Eastern side of their house which they were using for over 20 years. The claim is based on acquisition of easementary right b