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2013 DIGILAW 933 (BOM)

Madhu Sonu Naik v. Ana Rosa Fernandes

2013-05-03

A.P.LAVANDE

body2013
Judgment : Heard Advocate Mr. Kakodkar for the appellant and Mr. D'Costa, learned Senior Counsel for respondent no.4. None present for the other respondents, though served. 2. By this Second Appeal, the appellant takes exception to judgment and decree dated 15/11/2003 passed by the Additional District Judge-II, Panaji in Regular Civil Appeal No.30/2001 by which the appeal preferred against the judgment and decree dated 14/12/2000 passed by Civil Judge, Junior Division, Panaji in Regular Civil Suit No.107/1985/C, has been dismissed. 3. The appellant is the original plaintiff in the above suit which was initially filed seeking injunction against the defendants from interfering with the right of way through the property of respondent no.1 Thereafter, relief was also claimed against respondent no.4. Subsequently, the plaint was amended by adding additional paragraph 41(A) in which the plaintiff claims right to purchase three metres wide access way through the property of defendant no.1 at a reasonable price in terms of Article 2309 of Portuguese Civil Code. The suit was contested by the defendants. 4. The trial Court framed the following issues : “1. Whether the plaintiff proves that the suit way was in existence for last more than 30 years as mentioned in Paragraph 8 of the plaint? 2. Whether the plaintiff proves that he acquired right of easement by way of prescription over the said way including the suit way? 3. Whether the plaintiffs prove that he is entitled for a mandatory injunction for demolition of all the construction existing on the suit way? 4. Whether the defendant no.1 proves that the suit is not maintainable in the absence of prayer for declaration? 5. Whether the defendant no.2 proves that licence was issued for construction of building as mentioned in para 12 of the written statement? 6. What relief ? What order?” 5. Thereafter, following additional issues were framed: “1. Whether the plaintiffs prove that on 10/05/98 the defendant no.1 constructed a compound wall on the boundary of his property and the property of defendant no.1 which wall is illegal unauthorized and without any licence or permission from the defendants no.2 and 3?” 2. Whether the plaintiff proves that the said illegal compound wall is liable to be demolished as the same obstructs the right of way suit way of the plaintiffs through the property of the defendant no.1?” 6. Whether the plaintiff proves that the said illegal compound wall is liable to be demolished as the same obstructs the right of way suit way of the plaintiffs through the property of the defendant no.1?” 6. The Trial Court, upon appreciation of evidence led by the parties, dismissed the suit. No issue as to whether the plaintiff's property was landlocked and his entitlement under Article 2309 of Portuguese Civil Code, was framed. 7. The plaintiff preferred the appeal to the District Court. The lower appellate Court framed the following points for determination in the appeal: “1. Whether appellant has acquired right of easement by way of prescription over “the suit way”? 2. Whether suit way is the only access to appellant? 3. Whether appellant is entitled to purchase 3 mts way through the property of respondent no.1 or in alternate from the eastern boundary of respondent no.4 for the price fixed by the Court? 4. Whether licence/ N.O.C. granted by respondent no.2/ respondent no.3 is proper?” 8. The appeal was admitted on the following substantial questions of law: “(i) Whether as a consequence of the appellant having been permitted to amend the plaint and the consequent addition of paras 35(a), (b) and (c) and 41(a) and (b) to the plaint, the Court ought not to have framed additional issues as regards (a) the property of the appellant being landlocked and (b) the entitlement of the appellant to purchase 3 metre way through the property of the defendant no.1 or the defendant no.4?” (v) Whether the Court has not failed to address itself to or consider or apply the provision of Article 2309 of the Portuguese Civil Code to the facts of the case? 9. Mr. Kakodkar, learned Counsel for the appellant/plaintiff submitted that he is pressing relief only against respondent no.1 i.e. defendant no.1 and that too in so far as his claim under Article 2309 of Portuguese Civil Code is concerned. Mr. Kakodkar fairly conceded that in the absence of declaration of right of way, the suit filed seeking right of way by prescription could not have been decreed by both the Courts below. Mr. Mr. Kakodkar fairly conceded that in the absence of declaration of right of way, the suit filed seeking right of way by prescription could not have been decreed by both the Courts below. Mr. Kakodkar further submitted that the lower appellate Court ought to have remanded the matter to the trial Court for framing additional issue regarding right of the plaintiff to purchase three metres access in terms of Article 2309 of Portuguese Civil Code since no issue was framed by the trial Court in that regard. He further submitted that the finding given by the lower appellate Court that the property of the plaintiff was not landlocked, is not based on any evidence and as such, is illegal. Mr. Kakodkar submitted that this is a fit case in which the decrees passed by both the Courts below deserve to be quashed and set aside and the matter remanded to the trial Court for framing additional issue regarding right of the plaintiff to purchase three metres wide access in terms of Article 2309 of Portuguese Civil Code which was pleaded in paragraph 41(A) as amended. In support of his submissions, he relied upon the judgment of the Apex Court in the case of Remco Industrial Workers House Building Cooperative Society Vs. Lakshmeesha M. and Others; (2003)11 SCC 666 . 10. No doubt that the trial Court did not frame any issue as to whether the plaintiff's property was landlocked and whether he is entitled to purchase three metres wide access. However, such a point for determination was framed by the lower appellate Court as is evident from the points for determination referred to above. The lower appellate Court recorded finding that the evidence on record discloses that the case of the plaintiff that the plaintiff's property was landlocked, was not borne out from the evidence on record and as such, he was not entitled to the relief in that regard. 11. It is pertinent to note that in the judgment, it is no where mentioned that it was contended on behalf of the appellant/ plaintiff that the matter deserves to be remanded to the trial Court for framing issue in terms of Article 2309 of Portuguese Civil Code, though ground was raised about non-consideration of applicability of Article 2309 of Portuguese Civil Code in the memo of appeal. 12. 12. It is by now well settled law in view of the judgment of the Apex Court in the case of State of Maharashtra Vs. Ramdas Shriniwas Nayak and another; AIR 1982 SC 1249 that the statements made in the judgment are conclusive and it is not possible for a party to contend that the contentions not mentioned in the judgment, were made before the Court below. The lower appellate Court having dealt with the issue regarding the entitlement of the plaintiff in terms of Article 2309 of Portuguese Civil Code, in my opinion, the submission made on behalf of the plaintiff that the matter deserves to be remanded to the trial Court for framing issue, deserves to be rejected. The appellant having taken chance before the lower appellate Court, cannot be heard in Second Appeal to say that the matter deserves to be remanded to trial Court for framing the issue. 13. In my view, the finding given by the lower appellate Court that the plaintiff has failed to prove that the property was landlocked, cannot be said to be perverse warranting interference in Second Appeal. It is well settled that the finding of facts unless absolutely perverse, cannot be disturbed in Second Appeal even if the finding is wrong, having regard to limited nature of jurisdiction of this Court in Second Appeal, as laid down by the Apex Court in a catena of judgments. The findings recorded by the lower appellate Court cannot be said to be perverse warranting interference in Second Appeal. 14. In view of the factual and legal position in the present matter, the judgment in the case of “Remco Industrial Workers House Building Cooperative Society” (supra) relied upon by Advocate Mr. Kakodkar for the appellant, is not applicable in the present case. 15. In the result, therefore, I do not find any merit in the Second Appeal. Consequently, Second Appeal is dismissed with no order as to costs.