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10. It was contended that judgment and decree passed by trial Court was unsustainable and opposed to law, facts of case and evidence on record. It was contrary to admission that width of pathway was only ½ ft. and further admission that plaintiff had some other pathway to reach his property. Even Commissioner's report also RSA NO.449 OF 2007 disclosed width of pathway was 1½ ft. Court was not justified in rejecting application filed by defendant for appointment of Court Commissioner. It was also contended that there was no proper appreciation of evidence.

23. Referring to Ex.P11 and P12 - report and sketch, wherein Commissioner had shown existence of pathway by marking it in red colour and also stated that defendant had put up fence six months prior to inspection, concluded that plaintiff had established existence of easement. While decreeing suit, trial Court also considered contention of defendant regarding existence of alternate pathway. Upon recording a categorical finding that said pathway was not in existence, rejected contention. It referred to unequivocal admission of DW.1 about existence of pathway of 1½ ft. width situated in middle of his land. It held that lack of clear denial by defendant to a suggestion by plaintiff about RSA NO.449 OF 2007 width of pathway to be 6ft., as establishing at 6ft. Based on said conclusion, it proceeded to decree suit.

26. Explanation I - clearly mandates that each period of twenty years uninterrupted user of easement should be established to be in existence within two years prior to filing of suit.

RSA NO.449 OF 2007

27. Admittedly, instant suit is filed on 22.07.1998. As per plaint, cause of action for filing suit arose on 20.06.1995, when (in pursuance of ex-parte order of temporary injunction obtained in O.S.no.126/1995), defendant put up fence obstructing plaintiff from using pathway. As per plaint, width of pathway was 6ft. Though it is elicited from defendant that there was no obstruction of using pathway of 1½ ft. width passing through schedule 'B' land to plaintiff and others, same would not entitle plaintiff for a decree. It is seen that plaintiff failed to give adequate description of pathway in 'B' schedule. Suit prayer merely refers to Court Commissioner's report at Ex.P.11 in earlier suit. It discloses that defendant had blocked 6ft. wide pathway and also refers to existence of 1½ ft. wide pathway. Without specifically stating which among two pathways plaintiff was trying to enforce, suit could not be proceeded with. Hence, not only on ground of lack of clarity in prayer, but also on ground of failure of plaintiff to plead RSA NO.449 OF 2007 and establish existence of easement as required under Section 15 of Indian Easements Act, judgment and decree passed by first appellate Court would be fully justified.

28. Further, requirements of law mandated in Justiniano Antao (supra) would not be satisfied, as even date of accrual of cause of action mentioned in plaint would be beyond two years prior to suit.

29. Merely on ground that defendant admitted existence of 1½ ft. pathway, High Court of Kerala in Badariya Madrassa Committee (supra) under similar circumstances held such admission would not justify decree for pathway of 6ft. width.

30. But there is admission by defendant about existence of pathway of 1½ ft. in width and admitted position that there was no obstruction by defendant for such right, which would meet requirements of statute.