The right of easement by prescription requires proof of continuous use, which was established in this case despite the appellant's objections.

J U D G M E N T

The appeal is by the 1^st defendant, non-suited concurrently in a suit for injunction filed by the plaintiff claiming right of easement by prescription. The plaintiff contended that he has a right of easement by prescription over item No.2 of the plaint schedule property, whereas item No.1 is in his possession. The plaintiff further contended that the pathway in existence was from time immemorial as used by his predecessor and now by him. In support of his plea that item No.2 pathway was being used for ingress and egress to item No.1, the plaintiff examined an independent witness as PW2. The 1^st defendant / appellant resisted the suit by raising a dispute regarding the identity of the pathway in question. It was further contended that the pathway was closed down in the year

2001, thereafter, the plaintiff was not using the same. It was further contended that the pathway was carved out only for the exclusive use of the defendants and that the plaintiff does not have any right over the same. The trial court on appreciation of evidence decreed the suit and restrained the defendants, obstructing the plaintiff from using item No.2 nor changing the nature and lie of the property. The 1^st defendant alone preferred an appeal. The First Appellate Court concurred with the findings of the trial court by finding that the Advocate Commissioner has clearly reported the existence of the pathway. It was further found that item No.2 is the only access through the plaintiffs property. Consequently, the appeal was rejected.

Aggrieved, the present appeal is filed.

2. Heard Shri.K.S Hariharaputhran, the learned counsel for the appellant.

3. The learned counsel for the appellant mainly raised three substantial points, which according to him will warrant this Court to have a re-look at the appreciation of the evidence by the courts below. Firstly it is contended that during the cross examination of PW1, the plaintiff clearly admitted that the ownership of the pathway does not vest with the defendants. Thus it is pointed out that, if a right of easement by prescription is claimed, necessarily the plaintiff will have to admit the title of the defendant. Secondly, it is contended that the evidence of PW1 would show that there is a complete deviation from the plaint averments as regards the existence of the pathway and therefore it is pointed out that the evidence and the pleadings in the present case do not go together. Lastly, it is pointed out that as regards the existence of the right of easement by prescription, the requirements of Section 15 of the Indian Easements Act, 1882 , have not been met.

4. On considering the submissions raised on behalf of the appellant, this Court is of the considered view that none of the contentions are sustainable. Further, these contentions, even if it is appreciated, will not amount to any question of law, much less a substantial question of law for the simple reason that the findings of the courts below are purely based on appreciation of evidence. It has come out in evidence that the pathway was in existence from 1976 onwards, though it is stated that, it was closed in the year 2001, for which there where no evidence adduced on the side of the defendants. At any rate when the right of easement by prescription is proved through an independent evidence in the form of PW2 and that the entire findings of the courts below hinges upon the appreciation of evidence, unless it appears to this Court that the said appreciation is perverse, no interference in exercise of the powers under Section 100 of Code of Civil Procedure is warrented.

5. As regards the contention that the plaintiff had given up his case in the plaint and has