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2. The respondents/defendants had resisted the suit and denied that there existed any path which the appellant/plaintiff and pro forma respondents/defendants had been using, as alleged by them. According to them, on 30th April, 1981, the appellant/plaintiff and pro forma respondents/defendants wanted to lead a new path through their land, to which they objected. The matter was also reported to the police and on spot inspection it was found that there was no path from their land.

3. The trial Court rejected the defence of the respondents/defend ants and decreed the suit holding that there exists the path in dispute, which the appellant/plaintiff and pro forma defendants/respondents had been using for the last many years. It was also found by the trial Court that the respondents/ defendants had been interfering with the right of the appellant/plaintiff and pro forma respondents/defendants by obstructing the path in dispute. The Additional District Judge set aside the findings of the trial Court on the grounds, inter alia, that neither there are pleadings nor proof that the appellant/ plaintiff had acquired easementary rights by prescription over the path in dispute. According to him, simple use of the path in dispute for the last 23 years without any objection by the respondents/defendants does not establish that the path in dispute has been used as of right. On the scrutiny of oral and documentary evidence produced on record, the Additional District Judge has come to the conclusion that it is not proved by the appellant/plaintiff that he or his predecessor had been using the path in dispute without interruption for more than 20 years ending within two years next before the institution of the suit. He has rejected oral evidence produced by the appellant/plaintiff on the ground that the witnesses produced by the appellant/plaintiff are either chance witnesses or interested witnesses.

9. Applying these principles to the facts of the present case, it is admitted that the appellant/plaintiff and pro forma respondents/defendants had purchased the land in March, 1958 and from the preponderance of evidence on record it is established that since then they have been continuously using the path in dispute which raises a presumption that their user which was open, peaceable and unobstructed was in the conscious exercise of their right to use that path. The absence of any objection to their such user by the respondents/defendants from March, 1958 till 30th April, 1981, which period is more than twenty years, further strengthens the presumption and inevitable conclusion is that the appellant/plaintiff and pro forma respondents/ defendants had acquired the right to use the path in dispute by prescription.

10. From the admission of the appellant/ plaintiff that the house on the purchased land was constructed in the year 1960-62, the Additional District Judge was not right in drawing inference that the appellant/ plaintiff and pro forma respondents/defendants or earlier their father had not been passing through the land of the respondents/defendants prior to the construction of the house. From the Jamabandi for the year 1977-78 Ext. P-4 on the record, it is clear that the area of the land purchased on the name of the appellant/plaintiff and pro forma respondents/defendants by their father in March, 1958 is 10 bighas and 6 bishwas and its nature is Kahali Abal, from which it is proved that this land was being cultivated by the appellant/plaintiff and pro forma respondents/ defendants and earlier by their father since they purchased it, therefore, for going to their land they must be passing or repassing through the path in dispute.

11. The defence of the respondents/defendants that the path in dispute does not exist, has not been accepted by the Additional District Judge, but according to him, it had not been used by the appellant/plaintiff and pro forma respondents/defendants as of right for the statutory period prescribed under Section 15 of the Act. This Court finds that there is ample evidence on record to prove that the path in dispute did exist and it has been used by public at large. To prove this, the most important and material evidence on record is Ext. P-1, whic has not been considered by the Additional District Judge. It not only proves the existence and use of the path in dispute but also that the respondents/defendants have started obstructing it. This document Ext. P-1 is copy of judgment of Gram/Naya Panchayat, Aral, Tehsil Rohru, District Shimla whereby respondent/defendant No. 2 Khindu Ram was held guilty of offence under Section 283, I.P.C. and sentenced to pay a fine of Rs. 75/- for obstructing an old path which had been in use of the general public and also for plying cattle and mules for going towards Rohru by constructing walls thereon. Respondent/defendant No. 2 Khindu Ram DW-1 in his cross-examination has categorically admitted that the complaint filed by Ram Bahadur Gorkha was in respect of the path in dispute and he was fined Rs. 75/- by the Gram Panchayat for obstructing it. Though this judgment was given by the Gram Panchayat during the pendency of the suit, yet admittedly the respondents/defendants have accepted this decision and not challenged it in courts, which shows that they do not deny the facts stated therein that the path in dispute is in existence and has been in use of the general public since long. Had the Additional District Judge considered this document Ext. P-1, he would not have held that the land through which path in dispute passes, had been brought under cultivation about three years prior to the institution of the suit, therefore, the appellant/plaintiff and pro forma respondents/ defendants were prevented from using the path in dispute, which proves that they were not passing through the path in dispute within two years of the institution of the suit and their claim was barred under Section 15 of the Act. Besides proving open, peaceable, uninterrupted and continuous use for more than 20 years, the appellant/ plaintiff has also established on record that the obstruction was caused within two years before the institution of the suit on 23rd May, 1981, as such the ingredients that they have acquired right of easement of way by prescription over the path in dispute, as laid down in Section 15 of the Act, have been established.