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Dw 1 has stated during his evidence that the width of the pathway was not reduced after the Madrasa committee purchased the property in question. Therefore the version of the plaintiff that after 1983 the obstruction was not removed only mean that he was not able to take vehicle through the passage in question after 1983 in view of the obstruction by the defendants. Apparently at the time when the Commissioner inspected the property for the preparation of Ext.C1 and C2 width of the passage in question was 6 feet 8 inches. At this time there was no obstruction to the use of the pathway having a width of 6 feet 8 inches. The defendants have no case that the obstruction was there at that time. Therefore it is to be presumed that even at the time institution of the suit the plaintiff was using the passage in question without any interruption, though not for vehicular traffic- (emphasis supplied). Even if the plaintiff has not been taking vehicles through the passage in dispute within a period of 2 years, the plaintiff will be entitled to have the use of the passage having the same width as that was in use prior to the institution of the suit.

11. In appeal, the first appellate court has confirmed this finding of the trial court. According to both trial court as well as the appellate court there was a way in use and even if there was obstruction for vehicular traffic within two years prior to the filing of the suit the prescriptive right of easement will be available for the entire pathway claimed for vehicular traffic also. The trial court relied on the decision of this Court reported in Simon v. N. Jayanth 1986 KLT 457. In that case the question involved was easement by grant. In the present case we are concerned with a claim of easement by prescription and Section 15 of the Indian Easements Act specifically provides that period of 20 years shall be taken to be a period ending within two years next before the institution of the suit. The finding of the trial court as well as the appellate court that even if there was obstruction for vehicular traffic, for more than two years prior to the suit the mere use of way by walking uninterruptedly, the plaintiff can claim easement for the entire width of 6 feet 8 inches does not seem to be correct in view of the provision contained in Section 15 of the Indian Easements Act. Even in the plaint there is no clear averment that the plaintiff has been using the pathway having a width of 6 feet 8 inches as of right and from what period. The Commissioner has reported that the distance between the two buildings of the defendants through which there is a pathway is 6 feet 8 inches. Therefore the plaintiff wants that entire space to be declared as a pathway available for the plaintiff's use. It is also stated that this is a public pathway and all the members of the public are using this pathway. If that is so there is no question of easement by prescription as against the defendants since it is only if the plaintiff admits the defendant as the owner of the land that easement by prescription can be claimed as against the defendants. The plaintiff himself has admitted in Ext.B7 complaint that he made a complaint before the RDO, Kannur that he had filed a complaint before the municipal authority and they had informed him that it is a private property and the municipality cannot interfere in this matter. Therefore B-schedule property was not recognised as public pathway by the Kannur Municipality.

12. Learned Counsel for the appellants submitted that there was a pathway through plaint B-schedule property and it is having only 4 feet width and the defendants will not prevent the plaintiff from using the pathway. Defendants' only objection is for making use of the entire area as the pathway of the plaintiff. According to the learned Counsel unless and until the plaintiff satisfies the entire ingredients of Section 15 of the Indian Easements Act no right of prescription can be declared in respect of plaint B-Schedule property for vehicular traffic through B-Schedule property. In view of the provisions contained in Section 15 of the Indian Easements Act and the precedents referred to earlier, the reasoning of the trial court as well as the first appellate court cannot be sustained. The Second Appeal is therefore allowed and substantial questions of law formulated on which notice was issued are found in favour of the appellants. The judgment and decree passed by the lower courts are therefore set aside. But the right of way through 4 feet width now available in the plaint B-schedule property as conceded by the learned Counsel for the appellants for the ingress and egress of the plaintiff to his property is declared. The parties shall bear their costs in this appeal.