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2012 DIGILAW 579 (BOM)

Silaba DSouza v. Benedito Giratur DSouza

2012-03-16

S.C.DHARMADHIKARI

body2012
JUDGMENT:- This Second Appeal challenges the Judgment and Decree of the Lower Appellate Court in Regular Civil Appeal No. 115 of 1999 by which the Trial Court's Decree dated 11/10/1999 in a suit filed by the respondents in Special Civil Suit no.163, 1985/ I came to be confirmed. 2. It is common ground that the suit was filed by the respondents in the Court of Civil Judge, Senior Division at Margao on the basis that they are the owners in possession of a property more particularly described in paragraph I and that property is surveyed under Survey no.575/39. The respondents/plaintiffs stated that they have their ancestral residential house in this property and the main entrance is towards the East. The property is fenced on all sides by rough stone wall in some places and barbed wire fence at other places and there is an opening on the Eastern side of the said property which is the entrance to the said property and the house. 3. On the Eastern side of the property there is the property of the Can dado of Cuncolim, which is surveyed under survey no.575/40, wherein the Appellants-Original defendants before me have their residential house. 4. What the plaintiffs have stated in the plaint is that they have the only access to the property and the residential house from the main road and that is through the property of Con dado of Cuncolim, to which there was a three metres wide way. The access is depicted in the plan and then it is stated that the access is being used by the ancestors of the respondents for last more than 60 years and even the Sociedade has written letters to the Panchayat of Cuncolim as well as to the Mamlatdar of Salcete about the existence of the said access. The allegation is that the appellants/defendants are illegally trying to construct a compound wall in the said property of Can dado and thereby obstructing the access to the said property of the plaintiffs/respondents and their residential house. It is stated that they brought material like stones and they are about to complete the work. 5. It is on this allegation that the respondents prayed for permanent injunction restraining the appellants before me from constructing and/or erecting of any compound wall on the suit way and or making any obstruction whatsoever. 6. It is stated that they brought material like stones and they are about to complete the work. 5. It is on this allegation that the respondents prayed for permanent injunction restraining the appellants before me from constructing and/or erecting of any compound wall on the suit way and or making any obstruction whatsoever. 6. The suit summons was served upon the appellants and after entering appearance through an advocate they filed a written statement in which what they have stated is that the land surveyed under no.575/ 40 is in their possession and enjoyment for many years and they have been owners thereof by long and exclusive possession. They claim that the eastern portion covering their house and some open land on the North belongs to them. They stated that there was in the past an open land without any fences or compound and the residents crossed through one of the more lands as convenient accesses to their houses. However, it is false to suggest that the respondents had their access through the land lying on the northern side. It is stated that however, when the occupant raised a fence, the respondents started to pass through the appellant's land. That is not a public road and therefore where there is only a foot access which the respondents have used for sometime as a short-cut to their house they cannot claim any relief. The respondents have also suppressed the fact that there is no road in the locality, the Village Panchayat of Cuncolim had laid a three metres road in January, 1985, which runs perpendicular to Bhiunsa-Molanguinim road at a distance of only about 25 metres from the alleged suit way. The public road touches and runs along the southern boundary of survey no.575/39 and forms a better and proper access to the land occupied by the respondents and therefore, there is no reason to pass through their land and there cannot be any access or right of way as claimed. 7. Upon these pleadings the necessary issues were framed and the respondents led evidence by pointing out that the survey plans would indicate that the property of the appellants is towards the East and that they have to cross through the propel Y bearing survey no.575/40 so as to access the road which is on the Eastern side. 7. Upon these pleadings the necessary issues were framed and the respondents led evidence by pointing out that the survey plans would indicate that the property of the appellants is towards the East and that they have to cross through the propel Y bearing survey no.575/40 so as to access the road which is on the Eastern side. The width of the access and its location has been identified by the witness Milton D' Souza. In his cross examination all that he stated is that the Panchayat has constructed a road and this road touches one small strip of land which belongs to the respondents and thereafter there is a compound wall of the suit property. 8. As far as the oral evidence of the appellants is concerned what has come on record is that the respondents were using the access through the property of Lawrence D' Souza. They also used to cross through the appellants' property since the appellants' property was blocked they it was used to go through other property. What has further come on record is that the property of the respondents abuts the newly constructed road and in such circumstances, what was suggested is that there is absolutely nothing in his cross examination which would enable the Court to conclude that a case for granting permanent injunction has been made out. 9. The Courts below have concurrently found that the location of the property is not disputed, so also their ownership and the existence of the access. Once there is an admission that there is an access through survey no.575/40 and the argument was only that it is only a foot access, what was required to be decided is whether the existence of the 3 metres access as claimed is proved or not. That is held to be proved by relying on the deposition of not only the respondents but also the appellants. Even with regard to the existence of the panchayat road there was some doubt but what appears is that the witness of the appellants' stated that the existence of the access in front of the house of the respondents has been there for more than 60 years and its width has been proved by the witness examined by the plaintiffs/respondents. Even with regard to the existence of the panchayat road there was some doubt but what appears is that the witness of the appellants' stated that the existence of the access in front of the house of the respondents has been there for more than 60 years and its width has been proved by the witness examined by the plaintiffs/respondents. Therefore, the Court concluded that the respondents were using the 3 metres access on the eastern side through survey no.575/40 and which has been used for more than 60 years. Therefore, obstruction being proved entitles the respondents to claim relief of permanent injunction that the issues were answered accordingly. Before the lower Appellate Court an attempt was made to argue that some sort of easementary right is claimed. If such a right is claimed the appellants' pleadings have to be worded accordingly. If the pleadings do not demonstrate that the necessary pre-requisites to claim a right of easement as 'of necessity have been set out, then, the respondents cannot succeed. The Lower Appellate Court disbelieving this has held that this is not a case where any such right has been ascertained. Assuming that, there are adequate pleadings but, the claim is on the basis that there was an access provided to the respondents' property which was blocked and which access has been there for quite some time. The attempt to deprive the respondents entitles them to a permanent injunction. Consistent with this finding the appeal came to be dismissed. 10. Mr. C.A. Coutinho, appears on behalf of the appellants and submits that there are substantial questions of law and particularly those framed at page 5 of the appeal memo (B,C and D), which are in addition to those formulated at the time of the admission of the appeal. 11. He submits that if the plaint is perused and particularly paras 5 and 7, then, the right that is claimed is of easement. It is not pleaded. 12. 11. He submits that if the plaint is perused and particularly paras 5 and 7, then, the right that is claimed is of easement. It is not pleaded. 12. Inviting my attention to the concept of "Easement" as it appears in the Indian Easement Act, 1882, what has been urged is that a right of easement is a right which the owner or occupier of certain land possesses, as such for beneficial enjoyment of that land to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of certain other land not of his own. The right of easement must exist and which right must be established and proved by proper pleadings. Assuming that such a right was pleaded and proved and yet in this case what has come on record is that there is a road which abuts the Panchayat or public road and Respondents have an access to it. Now the panchayat road has also come into existence and that was in the year 1985 itself. In such circumstances it is not as if the requirement for discretionary relief of injunction has been satisfied. 13. Mr. Coutinho has submitted that there are two Miscellaneous Civil Applications in this Second Appeal. One is to bring on record of this Appeal the judgment and decree of the Civil Court in Special Civil Suit no.63/2002/II which suit came to be filed by the appellants herein against one Joaquim Mascarenhas Fiuza and others along with the Sociedade claiming that the appellants have acquired title to the suit property by prescription. That the suit has been decreed and therefore that judgment has relevance and secondly to frame substantial questions of law in addition to what have been framed earlier and which relates to the claim of injunction against the appellants in the instant suit. That claim could not have been granted unless the respondents seek a declaration of acquiring easementary right over the appellants' property. 14. For all these reasons it is submitted that the appeal be allowed and the judgments and decrees of the Courts below be quashed and set aside. He places reliance upon two decisions in the case of Shri Damodar Vasudev Shirodkar and ors. Vs. Smt. Hirabai Vassant Kenkre, reported in 1998 (1) Goa Law Times.2 and Justiniano Antao & Ors. Vs. For all these reasons it is submitted that the appeal be allowed and the judgments and decrees of the Courts below be quashed and set aside. He places reliance upon two decisions in the case of Shri Damodar Vasudev Shirodkar and ors. Vs. Smt. Hirabai Vassant Kenkre, reported in 1998 (1) Goa Law Times.2 and Justiniano Antao & Ors. Vs. Smt. Bernadette B. Pereira reported in 2005 (5) ALL MR (S.C) 135. 15. On the other hand, Mr. A.F. Diniz appears on behalf of the respondents and submits that the concurrent findings of facts cannot be termed as perverse at all. These concurrent findings have been recorded in the light of the plaintiffs' suit which is simplicitor for injunction. In that suit, what the plaintiffs have pleaded is that they have a right of passage and which is an access to their property. That access and its existence is not disputed. That access was available not only to the present respondents but also to their ancestors over a period of time. The extent of the access with its location and dimensions has been elaborately pointed out. Consistent with such pleadings the evidence was led and on appreciation of the same the suit has been decreed. In the Memo of Appeal before the District Court, there is no ground that the suit could not have been decreed unless the right of easement has been established and proved. Therefore, the decrees cannot be set aside by now canvassing something which was never argued or canvassed. For these reasons, according to him, there is no substantial question of law and the appeal deserves to be dismissed. 16. With the assistance of Mr. Coutinho and Mr. Diniz, I have perused the Memo of Appeal, all annexures there to, pleadings of the trial Court, the judgments rendered by the trial Court and the Lower Appellate Court including portions of the evidence of some vital witnesses. I am satisfied that in the Second Appeal there is no substantial question of law and it deserves to be dismissed. 17. The suit was a suit simplicitor for permanent injunction. I am satisfied that in the Second Appeal there is no substantial question of law and it deserves to be dismissed. 17. The suit was a suit simplicitor for permanent injunction. Assuming even in such a suit for the reliefs to be granted, the respondents/plaintiffs were required to plead and thereafter prove that they have been in possession of their own property continuously and for a period of time, but that property has an access on a particular side or direction. That access is of required and stated dimensions and width. That access has been used by them continuously, uninterruptedly and peacefully over a passage of time. 18. I am in agreement with Mr. Diniz that in the present case to claim relief of permanent injunction there are adequate a d sufficient pleadings. It is not the case of t e appellants that the property bearing survey no.575/39 was not used or occupied and also in possession of the respondents and their ancestors. It is not the case of the appellants through out that the property which they claim bearing survey no.575/40 was never used as an access by the respondents to their property. Once, the pleading is that the suit way existed in the property of Con-dado and that was used for the last more than 60 years, then, the act of the appellants in trying to obstruct it by constructing a compound wall is taking away the right of passage and access available to the respondents. Pertinently, the owner of the property under survey no.575/40 namely, the Sociedade has not disputed that the property was not utilized as an access and that access is to the extent of three metres width. In such circumstances, there is no merit in the contention that the right as claimed under the Indian Easements Act, 1882 was projected and necessary pleading to establish and prove that right was Jacking in this case. 19. In such circumstances, there is no merit in the contention that the right as claimed under the Indian Easements Act, 1882 was projected and necessary pleading to establish and prove that right was Jacking in this case. 19. The Courts below have concurrently found that the evidence led on behalf of the respondents enabled them to conclude that the respondents were using the three metres access on the eastern side through survey no.575/40, an opening of 3 metres was kept on the fence, that the respondents have established that access has been used for more than 60 years and when even the Sociedade has confirmed this position, then the suit is required to be decreed after issues no.2,3,and 4 which cast a burden on the respondents have duly been proved. The issues have been drawn on the basis of pleadings in the suit and consistent therewith the oral and documentary evidence has been led, the appreciation of which does not appear to be perverse to such an extent as would not give rise to any substantial question of law. There fore, both the courts have rightly held that the existence of the panchayat road is no ground to deny relief to the appellants. That is something distinct than the access which is claimed by the respondents to their property and that if the said road is constructed that would not defeat the claim of the respondents in respect of the suit access. 20. The arguments of Shri Coutinho overlook the controversy that was before the Courts below. Assuming that in order to claim a relief of permanent injunction some right in the property has to be established, that in the given facts and the circumstances cannot be stretched to a right of easement. Even if that is taken to be the case, the pleadings in the suit of the defendants read as a whole do not seem to be lacking in any manner enabling the respondents in claiming relief of permanent injunction. The reliance placed on the two decisions by Mr. Coutinho, one of the Hon'ble Supreme Court and one of this Court is misplaced. The reliance placed on the two decisions by Mr. Coutinho, one of the Hon'ble Supreme Court and one of this Court is misplaced. In the case before the Supreme Court what has come on record is that the right of access was claimed without any specific averment either in the plaint or statement of the witness showing that the access from the land of the defendants was used as of right for the last 20 years. There was categorical evidence that the plaintiff has an access on the south eastern side and this was being used by her for a long time. Therefore the obstruction put by the defendants would hold good and that would not enable the trial Court to decree the suit. The observations in paragraph 9 of the judgment which are heavily relied must be seen in the entirety. There the plaintiff was having access through the southern side. There was no case of access to her house except through the property of the defendants. Such is not the ease before me. Therefore, this decision is clearly distinguishable. Equally, the learned Single Judge's view in the case reported in 1998 (1) Goa Law Times, page 2 must be seen in the backdrop of the factual finding of that case. There the plaintiffs before the trial court had not pleaded that they were using the access as of right. That was essential and finding that proper pleadings were lacking and sti 11 the suit came to be decreed. Such is not the Situation in the present case and particularly considering the nature of the relief claimed. 21. As a result of the above discussion, T do not find that there are any substantial questions of law which arise for determination in this appeal. In fact an attempt is made to reopen the factual facts and Respondent-appreciation of the evidence which is not permissible in law. Once such is the conclusion reached, then the claim of the respondents cannot be defeated by any decree that the appellants may have obtained against a third party. r do not find any merit in the request made in the accompanying Miscellaneous Civil Applications. Once such is the conclusion reached, then the claim of the respondents cannot be defeated by any decree that the appellants may have obtained against a third party. r do not find any merit in the request made in the accompanying Miscellaneous Civil Applications. As far as the issue of substantial questions of law is concerned, r have come to the conclusion that the relief claimed was of permanent injunction which would be granted on the basis of the pleadings and oral and documentary evidence on record. Therefore, the Second Appeal fails and is dismissed. The miscellaneous civil applications do not survive and are disposed off. There would be no order as to costs. Appeal dismissed.