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9. After considering the evidence on record, the trial court came to the conclusion that there existed no motorable pathway as claimed having width of 10 feet as claimed. But the court below came to the conclusion that there existed a pathway having a width of 5 feet commencing from the road on the east of plaint A schedule property which was identified by the commissioner in Exts.C2 and C4 plan. The courts below also came to the conclusion that the property originally belonged to Guruvayur Devaswom in jenmom and thereafter obtained by several persons including the predecessor of the plaintiff and defendant and thereby the plaintiff and his predecessor acquired right of easement by necessity and also found that this way is being used by the plaintiff and predecessor since long time openly, peaceably and without any obstruction as of right with the knowledge of the defendants and thereby he acquired right of easement by prescription and also granted a declaration that he is entitled to get right of user of the pathway by easement by prescription and also granted a decree for permanent prohibitory injunction restraining the defendants in  O.S.No.286/93 from committing any act of waste or reducing the width of the pathway or interfering with the right of user of the pathway by the plaintiff in that suit to the extent mentioned above and decreed the suit accordingly. Since that suit was decreed, the court below dismissed O.S.No.285/93 filed by the plaintiff in that case.

16. For the purpose of convenience sake, I am referring to the status of the parties as mentioned in O.S. No.286/93 in the lower court as it is a substantive suit and since both these appeals arose out of common judgment of both the trial court and the 1st appellate court on the basis of common evidence, I am disposing of both the appeals by common judgment.

17. It is an admitted fact plaint A schedule property in O.S. No.286/93 of Munsiff Court, Wadakkanchery belongs to the plaintiff in that case, who is the respondent in both the appeals. It is also an admitted fact that the properties on the east through which the plaintiff in that case is claiming easement right belong to defendants 1, 3 and 4 and this fact is also not disputed. According to the plaintiff in that suit, there was a motorable pathway having a width of 3 meter starting from plaint A schedule property and it passes through the property of defendants 1, 3 and 4 and reaches Chavakkad-kayamkulam public road. According to the plaintiff in that case, originally the property belonged to Guruvayur Devaswom and it was obtained by Padippurakkal tharwad on kanam right and thereafter it was given to several persons and thereby they acquired a right of easement by necessity and also they have got a case that the way is being used by the plaintiff and his predecessors for more  than 100 years, openly peacefully and without objection for more than 100 years and thereby they acquired a right of way by prescription also. When the commissioner was inspected the property who submitted Exts.C1, C2, C3 and C4 report and plan. They did not find the existence of any pathway having a width of 3 meters as claimed by the plaintiff as B schedule to that suit. The courts below also came to the conclusion relying on Exts.C1 and C2 that at the point B3, B4 and B7, it was having a width of 5 feet and at the point B3 and B7 also having it was a width of 5 feet at the beginning point from where the alleged way starts from the property of the plaintiff it was having a width of only 4 feet and at the entry point namely from Chavakkad-Kunnamkulam road, it was having width of 4 feet and 3 inches. In Exts.C3 and C4 it was shown much lesser width as well. The courts below had disbelieved the evidence of Pws 2 to 5 to the extent that it can be used for the purpose of vehicular traffic and vehicles were taken through that portion. So under such circumstances, the courts below have concurrently come to the conclusion that the way having a width of 10 feet having motorable convenience as claimed by the plaintiff was not available and such a way has not been enjoyed either by the plaintiff or by his predecessors and to that extent the claim of the plaintiff was not accepted by the courts below. 

19. The evidence of PW2 who was an employee of Health  Department whose office was housed in a house in plaint A schedule property deposed that she was working there during 1960 till she was transferred from there and they were using the way through the property of the defendants to reach the office. But she had also stated that their vehicle also used to taken through that property to reach the office. But the slanting portion mentioned in the commissioner's report slanting from the property of the plaintiff to the property of the 1st defendant where the alleged pathway starts. There is no possibility of vehicle being taken into the property as the width of the slanting portion is only less than 5 feet. Further it was deposed by her that at the time when the office was functioning there, the property through which they used to pass was an open land an it is not possible for her to ascertain the width of the pathway or location of the pathway as used by them. She has no idea about the user of the pathway or the manner of the user after she was transferred from there.

20. The same is the evidence of Pws 3 and 4 as well. They were also examined for the purpose of proving that they were also in possession of the house in plaint A schedule property as employees of the Social welfare Department and also of Health Department. They also stated that they cannot identify the pathway exactly and they may not be able to say what was the  width of the pathway as well. They also stated that it was an open land and they were passing through the property. It is quite natural that in the open land, when people pass through normally the people will not object but that will not give them any right as such. The evidence of PW5, the son of the predecessor of the plaintiff, is also not helpful to prove the right exercised by his predecessor as he had no knowledge about the same. None of these witness had deposed that the user of the pathway claimed by them was as of right openly, publicly and without any objection from any others to the knowledge of the owner of the property. It was also brought out in evidence that there was a temple tank situated on the east of 1st defendant's property and the people come to the temple used to go that tank through the disputed pathway as well. So under such circumstances, it cannot be said that the evidence of either the plaintiff or the witnesses examined on his side namely Pws 2 to 5 is sufficient to come to the conclusion that the way has been used by them openly, peacefully without any objection as of right as an easement so as to claim right of easement by prescription under Section 15 of the Easement Act.