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19. The first question to be considered is the existence of Plaint C schedule pathway. Plaint C schedule pathway is shown as having 3 Meters width and 48 Meters length. The existence of the pedestrian pathway as on the date of the suit is more or less admitted by the defendants. Their contention is that it is used as a means of easy access on the basis of consent on account of the relationship of the plaintiff and the 1st defendant. The appellants have expressed no objection in providing the said pedestrian pathway on the northern extremity of the plaint B schedule property. But such concession could not be taken as a proof of existence of the pathway having a width of 3 Meters 2025:KER:31413 for the statutory period of 20 years immediately preceding the suit. Hence the plaintiffs have to prove the existence of the plaint C schedule pathway having a width of 3 Meters first.

24. The specific finding of the First Appellate Court is that once the use is established over a particular area, a reasonable space claimed as 3 Meters width required for the said use as deposed by PWs 1 to 3 can be fixed as the width of the plaint C schedule 2025:KER:31413 though the same is not specifically demarcated in the Commission Report. Such finding is plainly illegal and unsustainable. First of all, the width of the way could not be fixed relying on the interested testimonies of PWs 1 to 3. The Advocate Commissioner has not identified a 3 Meters width pathway through plaint B schedule property. There is no evidence to prove the vehicular passage through the plaint schedule property for the statutory period of 20 years.

25. The First Appellate Court failed to understand the distinction between the pedestrian passage and vehicular passage. In Badariya Madrassa Committee (supra) this Court held that when the use of way is only for walking the plaintiff cannot claim easement for taking vehicular traffic. When the evidence before the court is only for pedestrian passage the First Appellate Court should not have granted the relief of vehicular passage. Hence, I am of the view that the judgment and decree passed by the First Appellate Court is liable to be modified. From the pleadings 2025:KER:31413 and evidence, it is clear that the plaintiff and the family members have been using the northern extremity of plaint B schedule property for walking. Even though the Advocate Commissioner has reported only 30 cms as the width of beaten track, I am of the view that 30 cms is not enough for pedestrian passage, when both sides are enclosed. A minimum width of three feet is reasonably required for a pedestrian passage. The description of plaint C schedule pathway is not in accordance with the said three feet width pathway and the same is not identified by the Advocate Commissioner. Even then, in order to have a quietus to the litigation, I hold that plaintiffs are entitled to get a declaration of easement by prescription over a pathway having three feet width on the northern extremity of plaint B schedule property, i.e; on the immediate southern side of the northern boundary of plaint B schedule property. There will not be any difficulty to identify such a pathway through plaint B schedule property even without any schedule.

2025:KER:31413

26. In view of the aforesaid discussion, I answer the substantial question of law in the negative and in favour of the appellant.

27. The Regular Second Appeal is allowed in part, modifying the judgment and decree passed by the First Appellate Court by declaring that the additional plaintiffs are having right of easement by prescription over a pathway lying east-west having three feet width on the immediate southern side of the northern boundary of plaint B schedule property starting from eastern canal road and ending at the south eastern side of the Plaint A schedule property and further passing a permanent prohibitory injunction restraining the defendants 2 and 3 from obstructing the use of such three feet width pathway by the additional plaintiffs for their ingress and egress to Plaint A Schedule property.