The trial court granted a decree to the plaintiff declaring his

claim of easement by prescription to use the plaint B schedule

pathway. Defendants were restrained by injunction from causing

obstruction to the user of the pathway by the plaintiff. The

appeal against the decree was dismissed by the lower appellate

court. Defendants 2 and 3 are the appellants in the second

appeal.

2.

The case of the plaintiff goes as follows: The plaint A

schedule property belongs to him. The property of defendants 2

to 11 which they inherited from the first defendant is on the

eastern side of the A schedule property. The public road is on the

eastern side of the property of the defendants. The B schedule

pathway runs through the property of the defendants and

reaches the public road from the A schedule property. The

plaintiff has acquired a right of easement by prescription in the B

schedule pathway. The suit was filed when the second defendant

attempted to block the pathway.

3.

Defendants 2 and 3 alone contested the suit. They

had the following contentions: There is no pathway as shown in

the B schedule to the plaint running through the property of the

defendants. The plaintiff never used the B schedule property as

a pathway. He has no right of easement in the B schedule

property. His thoroughfare has been through the property of one

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Santha.

4.

PWs 1 and 2 were examined and Exts A1 and A2 were

marked on the side of the plaintiff. The defendants did not

adduce any evidence. Exts C1 and C2 reports and Exts C1(a) and

C2(a) plans of the commissioner were marked.

5.

Heard Sri.P.S.Appu, the learned counsel for the

appellants/defendants 2 and 3.

6.

Admittedly the A schedule property of the plaintiff is

on the western side of the property of the defendants. On the

eastern side of the property of the defendants is a public road.

The plaintiff claimed a right of easement by prescription to use

the B schedule property of the defendants as a pathway. The

plaintiff sufficiently and satisfactorily pleaded the ingredients of

Sec.15 of the Easements Act. The plaintiff deputed his wife to

mount the witness-box to speak to his case. His wife was

examined as PW1. The plaintiff examined a witness as PW2 to

prove his user of the B schedule property as a pathway. A

commissioner was appointed and he conducted inspection and

filed Exts C1 to C2(a). The commissioner reported to the

existence of the B schedule pathway. The courts below accepted

the evidence of PWs 1 and 2 to find the easement by prescription

claimed by the plaintiff. These are concurrent findings on facts

by the fact finding courts. This court cannot entertain the second

appeal in the absence of any perversity, misreading or

misappreciation of evidence or failure to consider any vital

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evidence by the fact finding courts. The defendants did not

choose to adduce any evidence. They chose to avoid the witness-

box and thereby saved them from submitting to cross-

examination. The apex court holds in

Vidhyadhar vs

Manikikrao (AIR 1999 SC 1441) that where a party to the suit

does not appear into the witness-box and state his own case on

oath and does not offer himself to be cross-examined by the

other side, a presumption would arise that the case set up by him

is not correct. An adverse inference shall be drawn against the

defendants who skipped the witness-box despite the evidence

given on the side of the plaintiff. I do not see any mistake

committed by the courts below in appreciating the evidence

produced on the side of the plaintiff.

7.

Two questions are raised in the memorandum of

appeal as substantial questions of law. The first one reads as

under:

(i) Whether the courts below were correct in granting a decree of

declaration regarding B schedule pathway disregarding the

inconsistent plea of easement by prescription and of necessity?

The plaintiff did not plead easement of necessity. There