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2013 DIGILAW 1500 (BOM)

Joao Andre da Costa v. Querino da Costa

2013-08-02

F.M.REIS

body2013
JUDGMENT F.M. Reis, J.- Heard Mr. N. Sardessai, learned counsel appearing for the appellants and Mr. S.S. Kantak, learned Senior Counsel appearing for the respondent Nos. 3(a) to 3(c) and 4. 2. The above Second Appeal has been admitted by this Court by order dated 07.09.2011 on the following substantial question of law: 'Whether the Courts below erred in allowing the respondents' plea that the respondents had a right of way through the suit property without spelling out, discussing what the said right was, more in view that both the Courts below had rejected the respondents' contention/plea as ownership/co-ownership of the suit property?' 3. Mr. N. Sardessai, learned counsel appearing for the appellants has pointed out that it was the contention of the respondents in the a counter claim that the sale deed executed in favour of the appellants dated 10.3.1971 was null and void and that the respondents were also seeking a declaration that they had acquired right of way through the property which was the subject matter of the said sale deed. The learned counsel further pointed out that originally the whole property was in co-ownership between the appellants and the respondents and the other co-owners and that in view of the partition by virtue of the allotment in the Inventory Proceedings, a specific portion of the property was allotted to the appellants and the respondents and the disputed suit property surveyed under No. 56/13 of Varca Village was in fact sold by the respondents to the appellants. The learned counsel further pointed out that the attempt by the respondents to declare the said sale deed as null and void has failed and has attained finality, and as such the learned Judge was not justified to grant a right of way through the suit property when in the partition proceedings an access was reserved for the benefit of all the co-owners towards the extreme side of the suit property. The learned counsel further submitted that even assuming the contentions of the appellants are accepted, for a claim of access under Section 15 of the Easement Act, it was incumbent upon the respondents to establish such user as a matter of right for a period of 20 years with some animus or hostile user against the appellants herein. The learned counsel further submitted that even assuming the contentions of the appellants are accepted, for a claim of access under Section 15 of the Easement Act, it was incumbent upon the respondents to establish such user as a matter of right for a period of 20 years with some animus or hostile user against the appellants herein. The learned counsel further submitted that on bare perusal of the reliefs in the counter claim, there is nothing to suggest on that count and in any event, if the contention of the respondents is accepted, at the most, such occupation would be on the assumption that the respondents are the co-owners of the disputed access. The learned counsel further pointed out that a co-owner cannot claim any hostile right and/or prescriptive right of easement over the property as against the other co-owners and as such the Courts below have not examined the said aspect and have erroneously come to the d conclusion that the respondents are entitled for the declaration of the right of way through the property of the appellants. The learned counsel further submitted that the pleadings do not suggest any allegations with regard to such user as a matter of right and it is well settled that unless and until such right of the user is established by the respondents, the question of granting any declaration as decreed by the Courts below is not at all justified. The learned counsel further submitted that the Courts below have not determined under which provisions of law such easementary right has been culled out in favour of the respondents and this itself has resulted in a substantial question of law which calls for interference by this Court in the above Second Appeal. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has totally misdirected itself while coming to the conclusion that the respondents are entitled for an easement through the property of the appellants which is designated as Lote-B in the plan at Exhibit PW 1/C. In support of his submissions, the learned counsel has relied upon the judgment of the Apex Court reported in 1971 (2) SCC 205 in the case of Chapsibhai Dhanjibhai Danad v. Purushottam and stressed in the observations at para 19 of the said judgment. The learned counsel as such submits that the substantial question of law framed by this Court is to be answered in favour of the appellants. 4. On the other hand, Mr. S.S. Kantak, learned Senior Counsel appearing for the respondents has joined issue with the submissions of the learned counsel appearing for the appellants. The learned Senior Counsel has pointed out that the contention sought to be raised by b the appellants before this Court has been raised for the first time as according to him there is no foundation for a substantial question of law on that count as the appellants have not pleaded anything to that effect in the written statement to the counter claim. The learned Senior Counsel further submitted that unless and until there is a foundation in the pleadings and in the submissions before the Courts below on this aspect, the question of there being any substantial question of law on that count would not arise. The learned Senior Counsel further submitted that on bare perusal of the written statement filed by the appellants, there is nothing on record to show that it was the case of c the appellants that the respondents were using the right of way as co-owners of the suit property. The learned Senior Counsel in support of his submissions has relied upon the judgment reported in (1997) 4 SCC 713 in the case of Panchugopal Barua and others v. Umesh Chandra Goswami and others, the judgment of the Apex Court reported in AIR 1966 SC 1024 in the case of Krishnapasuba Rao Kundapur and another v. Dattatraya Krishnaji Karani, the judgment of the Apex Court reported in (1997) 5 SCC 438 in the case of Kshitish Chandra Purkait v. Santosh Kumar Purkait and others, and the judgment of this Court reported in 2009 (1) All MR 374 in the case d of Kondabai Laxman Mhaske & Ors. v. Muktabai Vinayakrao Chavan and Anr. The learned Senior Counsel further pointed out that it is the case of the respondents that their claim of right of the way was in terms of the provisions of Section 15 of the Easement Act, as according to him, the respondents have acquired a right of easement by prescription through the suit property of the appellants. The learned Senior Counsel further pointed out that this Court in the judgment reported in AIR 1946 Bom. The learned Senior Counsel further pointed out that this Court in the judgment reported in AIR 1946 Bom. 266 in the case of Raychand Vanmalidas v. Maneklal Mansukhbhai has observed as in what circumstances a co-owner can claim an easementary right of way. The learned Senior Counsel as such submits that the substantial question of law framed by this Court is to be answered in favour of the respondents as there are concurrent findings of fact that the respondents were using the disputed access for a period of more than 30 years. The learned Senior Counsel as such submits that there is no merit in the above appeal and as such, the appeal deserves to be rejected. 5. In answer to the submissions of Mr. S.S. Kantak, learned Senior Counsel appearing for the respondents. Mr. Sardessai. learned counsel appearing for the appellants has pointed out that it is for the first time the respondents are now alleging their claim of easement in terms of the provisions of Section 15 of the Easement Act. The learned counsel further submits that on bare perusal of provisions of Section 15 of the Easement Act read with the definition of 'Easement' in the said Act, it is clear that in order to claim right of easement, such right is to be claimed as a matter of right which has been interpreted to be in the nature of hostile title. The learned counsel further submits that on bare perusal of averments in the counter claim, it is evident that there are no such pleadings and on this basis itself the claim of the respondents deserves to be rejected. The learned counsel further pointed out that there was a specific averment in the written statement disputing that the respondents were entitled for any declaration of a right of easement and further that the respondents were entitled for any such right of way through the property of the appellants. The learned counsel further pointed out that in the grounds of the appeal there was an averment which shows that originally the suit property was in co-ownership and having regard to the findings which were challenged, the submissions on that count can easily be culled out. The learned counsel further submits that the substantial question of law framed by this Court deserves to be decided in favour of the appellants. 6. The learned counsel further submits that the substantial question of law framed by this Court deserves to be decided in favour of the appellants. 6. I have considered the submissions of the learned counsel and I have also gone through the records. On bare perusal of the substantial question of law framed by this Court at the time of admission of the above Second Appeal, such substantial question of law can be divided into two parts. The first portion is to ascertain as to whether the Courts below have committed an error in granting right of way in favour of the respondents without spelling out under which provisions of the said Easement Act, the easementary right is accepted in favour of the respondents. The second portion is in order to grant such right of easement, the ingredients required for such purpose have been established by the respondents which would entitle them to a declaration and other reliefs as claimed by the respondents herein. 7. With regard to the first portion of the substantial question of law and taking note of the contention of Mr. S.S. Kantak, learned Senior Counsel appearing for the respondents that the right claimed by the respondents is in terms of the provisions of Section 15 of the Easement Act, it is thus clear that the respondents are claiming the right of way through the suit property by prescription. In order to claim such prescription. Section 15 of the Easement Act would have to be read with the definition of 'Easement' in terms of the said Act. Taking note of the fact that both the Courts below have not otherwise held that the right of way decreed in favour of the respondents was a under Section 15 of the Easement Act. I find that the Courts below ought to have first held under what provisions of the Easement Act such right of way was considered in favour of the respondents. Not rendering such findings itself would vitiate the impugned judgment as it was incumbent upon the learned Judge to appreciate the evidence on record and ascertain as to whether the ingredients required to establish the right of easement in terms of Section 15 of the Easement Act have in fact been established by the respondents. On perusal of the judgment of the Lower Appellate Court. On perusal of the judgment of the Lower Appellate Court. I find that there is no discussion b on that count resorted to by the learned Judge while disposing of the appeal preferred by the appellants. Apart from that, it is not in dispute that the attempt by the respondents to declare the sale deed in favour of the appellants as null and void has been unsuccessful and these findings have attained finality. In this background, the learned Judge would have to consider as to whether the respondents are in fact entitled for a declaration as sought in the counter claim. 8. Considering the view I propose to take in the above Second Appeal, I find that the second part of the substantial question of law need not be considered at this stage. The learned Lower Appellate Court has not appreciated the evidence on record to ascertain as to whether the respondents have in fact satisfied the requirements for claiming the right of easement by prescription in terms of Section 15 of the Easement Act. Hence, it is appropriate in the peculiar facts and circumstances of the case and in the interest of justice to direct the Lower Appellate Court to re-examine the matter a fresh after hearing, the parties in accordance with law. 9. The contention of Mr. S.S. Kantak, learned Senior Counsel appearing for the respondents that there is not foundation in the pleadings of the appellants to raise such contention before this Court at this stage need not be addressed to. Suffice to say that, it is always open for the party on the basis of the pleadings of the party who claims the relief to non-suit the party on the basis by drawing inferences from such pleadings. As such irrespective as to whether any contentions sought to be raised by the appellants before this Court are found in the written statement and the counter claim, nevertheless, does not preclude the appellants to non-suit the plaintiffs/respondents herein on the basis of their own pleadings, and evidence on record. Considering the said aspect and in view of the fact that the matter is being remanded to the Lower Appellate Court to consider the matter a fresh in the light of the observations made herein above, I find that the contention of Mr. Considering the said aspect and in view of the fact that the matter is being remanded to the Lower Appellate Court to consider the matter a fresh in the light of the observations made herein above, I find that the contention of Mr. S.S. Kantak, to the effect that there is no foundation which would entitle the appellants to raise this contention cannot be accepted. 10. In view of the above, I pass the following : ORDER (i) The appeal is partly allowed. (ii) The impugned judgment and decree passed by the Lower Appellate Court dated 30.06.2009 is quashed and set aside. (iii) Regular Civil Appeal No. 39/2009 is restored to the file of the Lower Appellate Court. The Lower Appellate Court is directed to decide the said appeal a fresh in the light of the observations made herein above after hearing the parties in accordance with law. (iv) The Lower Appellate Court shall dispose of the said appeal as expeditiously as possible and preferably within three months from the date of the appearance of the parties. (v) All contention of the parties on merits are left open. (vi) The parties are directed to appear before the learned Judge on 16.09.2013 at 2.30 p.m. (vii) The appeal stands disposed of accordingly.