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Is it necessary that the use of a pathway to transform into a right of easement by prescription under Section 15 of the Indian Easements Act (for short, "the Act") the dominant owner has to prove that such user was with notice to the servient owner? This is one of the questions urged by the appellant as a substantial question of law.

2. Respondent No.1 owns item No.1 of the plaint schedule as per settlement deed No.1368 of 1967. Item No.2 property is situated on the north of item No.1 and belong to the appellant. Item No.3 property belongs to respondent No.2 and is situated on the east of item No.2. Item No.4 is the disputed pathway. According to respondent No.1, that pathway starts from the water supply road on the east, passes through item Nos.2 and 3 and reaches item No.1. Along item No.3 belonging to respondent No.3, that pathway has a width of eight feet. Along item No.2 belonging to the appellant, its width is three feet. Respondent No.1 claimed that item No.4 is the only means of access from the road on the east to item No.1 belonging R.S.A. NO.188 of 2009 to her. She claimed user of item No.4 by herself and predecessors-in- interest for over 50 years peaceably, openly, as an easement, as of right and without interruption. Alleging attempt on the part of appellant and respondent No.2, servient owners to interfere with enjoyment of the right, respondent No.1 filed the suit seeking declaration of her right and injunction. Appellant denied existence of the pathway and its user by respondent No.1. She contended that respondent No.1 has other means of access to item No.1. She claimed that herself and family were staying in North India for long in connection with employment of her husband and that if at all respondent No.1 used any portion of item No.2 as a way at any time when they were away from the locality, that would not amount to user of the pathway as of right and adverse to the appellant as she had no notice of such user. Respondent No.2 also resisted the suit. Learned Munsiff accepted the case of respondent No.1 and granted relief. First appellate court confirmed the judgment and decree. Hence the Second Appeal. Learned counsel for appellant contends that alleged user of the pathway without notice to and without the knowledge of appellant, cannot be said to be adverse to the appellant and hence the user would not transform into a prescriptive right. It is also contended that there is no reliable evidence regarding the width of the R.S.A. NO.188 of 2009 pathway and that trial court granted relief without considering the evidence. Learned counsel has placed reliance on the decision in Narendra Gopal Vidyarthi v. Rajat Vidyarthi ([2009] 3 SCC 287) to contend that when the finding of fact is without any evidence or is against evidence it involved a substantial question of law. According to the learned counsel for respondent No.1, no substantial question of law is involved.

3. Exhibits C1 and C1(a) are the report and sketch prepared by P.W.2, the Advocate Commissioner. As per that evidence the pathway has a width of eight feet along item No.3. It came out in the evidence of respondent No.1 as P.W.1 that respondent No.2 acquired title over item No.3 about fifteen years back and only thereafter the pathway passing along item No.3 acquired width of eight feet. Before that, it was only a footpath along item No.3. Learned counsel for appellant contends that notwithstanding the above evidence regarding width of the way along item No.3, trial court accepted case of respondent No.1 regarding user of the pathway having width of eight feet along item No.3 for more than the statutory period and granted relief. But in this appeal it is not necessary to go into the question whether respondent No.1 acquired right of easement by prescription over the pathway having width of eight feet passing through item No.3 R.S.A. NO.188 of 2009 belonging to respondent No.3 since the latter has not challenged judgment and decree of the trail court and so far as respondent No.3 is concerned, that judgment and decree became final. At the same time it is interesting to note that in respect of the same way having width of eight feet passing through item No.3, appellant had filed a suit claiming prescriptive easement, it is a different matter that she was not successful in that attempt.

4. So far as existence of pathway along item No.2 belonging to the appellant is concerned, learned counsel contends that though respondent No.1 claimed its width as three feet, Ext.C1 shows the width as only one and half a feet but in spite of that, trial court granted relief in respect of three feet. Advocate Commissioner in paragraph 1 of Ext.C1 has reported width of the pathway passing through item No.2 as three feet. In paragraph 2 of Ext.C1 it is reported about a thondu like portion adjoining the pathway having width of one and a half feet. Commissioner gave evidence in that way as P.W.2. But it is not disputed that including the thondu width of the pathway along item No.2 is three feet as stated in paragraph 1 of Ext.C1. Learned counsel for respondent No.1 would contend that this aspect was not seriously canvassed in any other courts below. According to the learned counsel width of the pathway along item No.2 is three feet, it is only that during rainy season respondent No.1 and others used to R.S.A. NO.188 of 2009 walk through the ridge like portion as there was flow of rain water through the thondu like portion. Courts below from the evidence found width of the pathway passing through item No.2 as three feet. It is difficult to think a pathway having width of one and a half feet was being used. Finding of the courts below regarding width of pathway passing through item No.2 is one of fact which in my view does not involve any substantial question of law. As regards the alleged user of pathway for more than the statutory period evidence is given by respondent No.1 as P.W.1. P.Ws.3 and 4 have given supporting evidence. Courts below have accepted that evidence. That also involves no substantial question of law.