The prescriptive right to an easement requires uninterrupted, open user of the pathway, not existing under consent, corroborated by the surrounding facts and circumstances.

1. The plaintiffs are the appellants in this Second Appeal. The suit - OS. No. 227 of 1972 of the Munsiff's Court of Changanacherry filed by them was for a declaration of their right of easement over the plaint schedule pathway and for an injunction restraining the defendant - respondent from obstructing the said pathway or altering its boundaries or in any way interfering with the use of the same by the plaintiffs. The defendant admitted the existence of the pathway but contended that it bad been laid for his own exclusive use. He denied that was being used by the plaintiffs. He also controverted the right of easement claimed by the plaintiffs.

2. The Trial Court held that the plaintiffs have got easement right over the plaint schedule property, that the plaintiff's predecessor in interest have used the plaint schedule pathway for the statutory period and therefore they are entitled to the declaration and injunction prayed for. On appeal by the defendant, the lower appellate court, namely the District Court of Kottayam has reversed the decree of the Trial Court and dismissed the suit. According to the learned District Judge, the user of the land by the plaintiffs could only be on a tacit consent given by the owner and no right of easement has been created. The District Court was positively of the opinion that the Munsiff's Court finding that the plaintiffs and others were using the pathway continuously and without interruption for more than 20 years as of right is not correct. The plaintiffs have therefore come to this court in Second Appeal.

3. In this appeal by plaintiffs 1 and 3, in the suit, the judgment of the lower appellate court is attacked. Mr. Balasubramanyan, learned counsel for the appellants puts forth the view that the lower appellate court has made a thoroughly erroneous approach to the case and has misdirected itself into an erroneous line of reasoning and conclusion. According to him, the lower appellate court has erred in embarking upon an enquiry as to whether the plaintiffs have the absolute necessity to use the pathway and making the absence of such necessity the foundation of its judgment. That is not warranted by the issues framed in the case. He points out that the lower appellate court has failed to see that even on its finding the plaint schedule pathway was in existence as a pathway for well over 20 years before suit, that the plaintiffs and their predecessors were using it as such and that the continuous user by the plaintiffs and their predecessors in interest would raise a presumption of the user being as of right. He again stresses on the fact that the property is not an unfenced paramba, but a well made pathway of about 9 1/4 feet, width used as such with Kayyalas on both sides of it separating it from other properties on the north and south. Such pathway can only be as of right and in open assertion of their right to use it as a pathway. He also takes up the position that the defendant has acquiesced in the plaintiffs and their predecessors using the pathway used as such by him that he is precluded from challenging the rights of the plaintiffs after such a long time. In short, his contention is that in the circumstances and evidence in the case, the plaintiffs should have held to have proved the prescriptive right claimed by them. In that context, according to him, the long uninterrupted and open user by the plaintiffs of a pathway existing as a pathway for more than 25 years can only be in exercise of a right and that the plaintiffs have established t