JUDGMENT : EASWARAN S., J. These appeals arise from a common judgment and decree in A.S.Nos.107/2005 and 108/2005 on the files of Additional Sub Court, Irinjalakuda, which reversed the judgment and decree in O.S.Nos.1301/2003 and 289/2004 of the Munsiff Court, Kodungallur and granted a decree of injunction in favour of the plaintiff in O.S.No.289/2004. 2. Since the facts are common in both the appeals, the facts leading to the filing of R.S.A.No.648/2011 will be discussed in this judgment. The appellant/plaintiff sued the defendants in a suit for declaration and injunction. Plaintiff is the owner of plaint A schedule property. Plaint B schedule property is lying on the immediate northern side of plaint A schedule property and it belongs to the 1 st defendant – Devaki Amma, who later assigned the property in favour of the 2 nd defendant pending the suit. The 3 rd defendant and additional 4 th defendant are brothers of the 2 nd defendant and are said to be managing the property as the 2 nd defendant was abroad. The access from plaint A schedule property to the panchayath road is through a pathway, which lies through plaint B schedule property, which is scheduled as plaint C schedule. The pathway is having a width of 3 feet and a length of 35 metres. The C schedule pathway has been in use by the plaintiff and her predecessors-in-interest for more than 50 years and hence, the plaintiff is entitled to get easement by prescription. On 03.12.2003, an attempt was made by the 1 st defendant to block the way and hence, the suit was filed. 3. The 1 st defendant resisted the suit and contended that there is no pathway described as plaint C schedule. On 13.01.2004, the 1 st defendant sold the property to the 2 nd defendant, and the additional 4 th defendant was impleaded, since he was managing the property as the 2 nd defendant was abroad. Defendants 2 and 4 filed a written statement contending that, they have purchased the property through Sale Deed No.161/2004 of S.R.O. Mathilakam. The existence of a way was denied by the defendants. Subsequent to the filing of the suit, the 4th defendant filed O.S.No.289/2004 seeking for an injunction restraining the plaintiff in O.S.No.1301/2003, who is the appellant herein, from trespassing into the plaint B schedule property, through which the C schedule pathway lies. 4. The existence of a way was denied by the defendants. Subsequent to the filing of the suit, the 4th defendant filed O.S.No.289/2004 seeking for an injunction restraining the plaintiff in O.S.No.1301/2003, who is the appellant herein, from trespassing into the plaint B schedule property, through which the C schedule pathway lies. 4. Both the suits were tried together. On behalf of the plaintiff in O.S.No.1301/2003 (1st defendant in O.S.No.289/2004), Exts.A1 and A2 documents were produced and PW1 to PW3 were examined. On behalf of the defendants in O.S.No.1301/2003, Exts.B1 to B3 documents were produced and DW1 to DW6 were examined. Exts.C1 to C3(a) consists of reports and rough plans submitted by the Advocate Commissioners. CW1 and CW2 are the Advocate Commissioners who inspected the property. 5. The Advocate Commissioner appointed by the trial court at the first instance had inspected the property and filed Ext.C1 report and Ext.C1(a) rough plan, finding the existence of C schedule pathway and accordingly, an order of injunction was granted. Later, there was an attempt to close down the pathway in question by the defendants and hence, an application for prosecution was filed and in which, the same Advocate Commissioner was again asked to inspect the property and he filed Ext.C2 report and Ext.C2(a) plan, clearly indicating the fact that there was an attempt by the defendants 2 to 4 to forcefully close down the C schedule pathway. Later, the trial court appointed another Advocate Commissioner in O.S.No.289/2004 who filed Exts.C3 and C3(a) report. Based on these reports, the application for injunction preferred by the plaintiff in O.S.No.1301/2003 was heard by the trial court and by order dated 05.04.2004, the application was allowed. In O.S.No.289/2004, I.A.No.814/2004 was filed for injunction restraining the plaintiff in the other suit from trespassing into the plaint schedule property. The same was dismissed. Aggrieved, the plaintiff therein filed a C.M.A.No.58/2004, which was also dismissed. 6. With these material evidence on record, the trial court proceeded to consider the suit and found that the existence of C schedule pathway has been proved by the plaintiff in O.S.No.1301/2003. Based on the evidence of PW2 and PW3, and also DW1 and DW5, the trial court held that the prescriptive right of easement has been conclusively proved by the plaintiff in O.S.No.1301/2003/appellant herein and therefore, decreed O.S.No.1301/2003. Based on the evidence of PW2 and PW3, and also DW1 and DW5, the trial court held that the prescriptive right of easement has been conclusively proved by the plaintiff in O.S.No.1301/2003/appellant herein and therefore, decreed O.S.No.1301/2003. Aggrieved, the additional 4 th defendant in O.S.No.1301/2003 preferred A.S.No.107/2005 and defendants 1, 3 and additional 4 th defendant in O.S.No.1301/2003 filed A.S.No.108/2005 before the Additional Sub Court, Irinjalakuda. 7. The first appellate court, however, came to the conclusion that existence of C schedule pathway has not been proved by the appellant herein and further proceeded to consider as to whether any prescriptive right of easement has been established by her. On reappreciation of evidence, the first appellate court concluded that the plaintiff/appellant herein has miserably failed to prove the existence of a prescriptive right of easement and accordingly, reversed the judgment and decree of the trial court and dismissed O.S.No.1301/2003 and decreed O.S.No.289/2004 and hence, the present two regular second appeals. 8. On 14.03.2016, this Court admitted these appeals on the following substantial questions of law framed in the memorandum of appeals: i. When there is a clear mentioning of the C schedule pathway in the plaint, which is corroborated by the commissioner's report, plan and evidence of the commissioner, and which is accepted by the trial court, is it legally correct for the 1 st appellate court to hold that there is no C schedule pathway as mentioned in the plaint. ii. Whether on the facts and circumstances of the case, the 1 st appellate court was legally right in holding that the C schedule pathway is not in existence. iii. When there is clear and cogent evidence regarding the use of C schedule pathway for more than 50 years as of right, openly and continuously, which has been accepted by the trial court was it legally right for the 1 st appellate court to upset that finding. iv. On the facts and circumstances of the case as the appreciation of evidence on record by the 1 st appellate court was legally correct. 9. Since both the appeals raises common substantial questions of law, these appeals are heard together and disposed of by this common judgment. 10. Heard, Adv.Ranjith Thampan – learned Senior Counsel appearing for the appellants in both the appeals, assisted by Adv.V.M.Krishnakumar K. and Adv.K.S.Bharathan – learned counsel appearing for the respondents in both the appeals. 11. 9. Since both the appeals raises common substantial questions of law, these appeals are heard together and disposed of by this common judgment. 10. Heard, Adv.Ranjith Thampan – learned Senior Counsel appearing for the appellants in both the appeals, assisted by Adv.V.M.Krishnakumar K. and Adv.K.S.Bharathan – learned counsel appearing for the respondents in both the appeals. 11. Adv.Ranjith Thampan – learned Senior Counsel appearing for the appellants in both the appeals, contended that the appreciation of the evidence by the first appellate court is perverse, which qualifies itself as a substantial question of law warranting interference of this Court under Section 100 of the Code of Civil Procedure, 1908. The existence of C schedule pathway was never a dispute before the trial court. Both the Advocate Commissioners who inspected the property and filed Exts.C1 to C3(a) reports and plans, categorically found the existence of C schedule pathway with precision. The evidence of PW2 and PW3 would certainly prove that the plaintiff was using C schedule pathway for more than 50 years. The existence of the C schedule pathway is also clearly spelt out from the evidence of DW1 and DW5 and therefore, the first appellate court could not have held otherwise. 12. Per contra, Adv.K.S.Bharathan - learned counsel appearing for the respondents in both the appeals, contended that the appellants herein does not have a consistent case. At one hand, the plaintiff in O.S.No.1301/2003/appellant herein contended that she has a right of easement by presciption, but at the same breath she says that her claim will fall under the head easement by necessity. Thus, when the plea of easement by prescription and easement by necessity cannot go together, the plaintiff must elect before the time of trial as to which right she wants to claim. In support of his contention, he relied on the decisions of the Single Bench of this Court in Kallen Devi and others v. Kizhakkekoroth Raghavan [ 2012 (2) KHC 443 ] and Lilly and others v. Wilson and others [ 2018 (1) KHC 623 ]. Referring to the proof affidavit of the plaintiff, learned counsel pointed out that, even at the time of the trial, the plaintiff did not elect to confine her claim to the easement by presciption alone and therefore, in such circumstances, the first appellate court was justified in reversing the judgment and decree. 13. Referring to the proof affidavit of the plaintiff, learned counsel pointed out that, even at the time of the trial, the plaintiff did not elect to confine her claim to the easement by presciption alone and therefore, in such circumstances, the first appellate court was justified in reversing the judgment and decree. 13. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and also the records of the case. 14. The primary question to be considered is whether the existence of C schedule pathway has been proved by the plaintiff in O.S.No.1301/2003/appellant herein or not. In the present case, there cannot be any dispute with regard to the fact that C schedule pathway exists in plaint B schedule property. The evidence of DW1 and DW5 unequivocally prove that, the existence of C schedule pathway. The Advocate Commissioner who visited the property at the time when O.S.No.1301/2003 was moved for admission filed Exts.C1 report and C1(a) plan. A perusal of Ext.C1(a) plan shows the existence of the pathway with precision length and width as described in C schedule to the plaint, has been clearly spelt out by the Advocate Commissioner in his report. Subsequently, when there was an attempt made by defendants 2 to 4 to block the way, after the purchase of the property from the 1 st defendant - Devaki Amma, the same Advocate Commissioner who filed Exts.C1 and C1(a) was appointed, who inspected the property and gave Exts.C2 report and C2(a) plan, which shows the extent of obstruction made by the defendants 2 to 4 in plaint C schedule property. Several interlocutory orders were required to be passed because of the said obstruction. The most crucial order in this regard is order dated 29.07.2005, in which, taking note of the existence of the pathway, the respondents 2 to 4 were directed to remove the obstruction and in fact, it is admitted across the Bar that such obstruction was removed by them and consequently, the prosecution application against them were closed by the trial court. 15. When existence of the pathway through the Advocate Commissioners’ reports as well as the evidence of DW1 and DW5 stands proved, the further question is whether it was open for the first appellate court to have embarked upon the said question. 15. When existence of the pathway through the Advocate Commissioners’ reports as well as the evidence of DW1 and DW5 stands proved, the further question is whether it was open for the first appellate court to have embarked upon the said question. Though, for a moment, even if it is assumed that the first appellate court was justified in entering into an enquiry as regards the existence of the C schedule pathway, the findings rendered upon cannot be sustained because of the unimpeachable evidence in the form of Exts.C1 and C2 report reports and also the evidence of PW2 and PW3, and DW1 and DW5. This Court fails to comprehend as to how the first appellate court could enter into a contrary finding against all the evidence on record. This Court cannot remain oblivious of the fact that, despite a strong objection from respondents 2 to 4 as regards the existence of C schedule pathway, in the light of Exts.C1 and C2 reports, the trial court had directed them to remove the obstruction pending the suit. Though the orders are of interlocutory nature, the same has been referred to by this Court to test the sustainability of the findings of the first appellate court. 16. The impropriety committed by the first appellate court is evident from the fact that, even after it found that C schedule pathway is not in existence, still it proceeded to embark further upon the question as to whether the plaintiff has proved her prescriptive right of easement. If, as a matter of fact, C schedule pathway was not in existence at all, then there is no warrant for any further observation regarding the proprietary rights of the plaintiff to have access to the C schedule pathway. 17. Be that as it may, now that the first appellate court has entered into such findings, this Court must necessarily test those findings in order to see as to whether there is any perversity in the findings. This is more so because, this Court has alredy found that, as regards the finding of the first appellate court regarding the existence of C schedule pathway, the findings are nothing but perverse. 18. This is more so because, this Court has alredy found that, as regards the finding of the first appellate court regarding the existence of C schedule pathway, the findings are nothing but perverse. 18. Coming to the question as to whether the plaintiff has proved her prescriptive right of easement, it must be remembered that the trial court relied on the evidence of PW2 and PW3 and also the evidence of DW1 and DW5 to hold that the case pleaded by the plaintiff is more probable. It must be remembered that when a claim of easement by prescription is raised, it is obligatory on the part of a plaintiff to establish with precision the existence of a way over which the right of prescription is claimed, because the prescriptive right is a precarious right and erodes into the proprietory rights of defendants’ property. 19. Keeping in mind the above principle, when this Court proceeds to test the evidence on record, it is inevitable for this Court to hold that the existence of C schedule pathway has been proved with precision through the reports of the Advocate Commissioners, Exts.C1, C2 and C3, and the plans, Exts.C1(a), C2(a) and C3(a) and also the evidence of PW2 and PW3. Coupled with the fact that, there is a clear admission regarding the existence of way by DW1 and DW5, there cannot be any issue with regard to the fact that the plaintiff has succeeded in proving the prescriptive right over C schedule pathway. 20. The only question remains to be considered by this Court is whether the evidence of PW2 and PW3 could have been discarded by the first appellate court. It must be remembered that the trial court accepted the evidence and decreed the suit in favour of the plaintiff/appellant herein. By exercising the powers under Section 96 of the Code of Civil Procedure, 1908, it was not open for the first appellate court to have arrived at a different conclusion because it did not agree with the views of the trial court. In short, the first appellate court cannot substitute the findings merely because it did not agree with the views expressed by the trial court. 21. In short, the first appellate court cannot substitute the findings merely because it did not agree with the views expressed by the trial court. 21. Now coming to the contention of the respondents that the claim of easement by prescription and claim of easement by necessity will not go together, it must be remembered that, in the plaint, though there was an alternate plea of easement by necessity, in the relief portion the plaintiff has sought for in Relief ‘B’, an easement by prescription alone. It is true that in Kallen Devi (supra), this Court has held that easement of prescription and necessity cannot go together and further, in Lilly (supra), this Court had also laid down the principles to determine under what circumstances an intentional relinquishment of the claim can be inferred. On a careful consideration of the principles laid down by this Court in the above decisions, this Court is of the considered view that the factual situation presented before this Court in these appeals do not warrant a blind application of the principles laid down in Kallen Devi (supra) and Lilly (supra). 22. In the present case, the plaintiff had claimed a relief of easement by prescription alone, a mere reference to the claim of easement by necessity in her pleadings and also in her proof affidavit will not help the respondents 2 to 4. At any rate, the appellant is not non-suited on the ground that the claim of easement by necessity and prescription will not go together, but the first appellate court has non-suited the appellant on the ground that the claim for easement by prescription has not been proved at all and further the existence of the C schedule property has not been proved, which according to this Court is clearly erroneous and also vitiated by perversity. 23. 23. In the above circumstances, this Court is of the view that the judgment of the first appellate court cannot be sustained and accordingly, this Court is of the view that the substantial questions of law framed in the memorandum of appeals are to be answered as follows: a. When there is clear mentioning of C schedule pathway in the plaint, coroborrated by the Advocate Commissioners’ reports and accepted by the trial court, the legality or correctness of the same could not have been held otherwise by the first appellate court and the findings thus qualifies as a perverse appreciation of evidence. b. When there was clear evidence regarding the use of C schedule pathway through the categoric evidence of PW2 and PW3 and also DW1 and DW5, the plaintiff had successfully proved the claim for easement by prescription and therefore, the contrary findings by the first appellate court is unsustainable. Accordingly, these appeals are allowed by reversing the common judgment and decree in A.S.Nos.107/2005 and 108/2005 on the files of Additional Sub Court, Irinjalakuda and restoring the common judgment and decree in O.S.Nos.1301/2003 and 289/2004 on the files of Munsiff Court, Kodungallur. Parties are directed to suffer their respective costs.