Judgment : 1. Heard rival arguments at length on this First Appeal preferred by original defendant no.1 challenging the judgment and decree passed in Civil Suit No.303/2004 dated 30/08/2008. Said suit was filed by present respondents no.1 & 2, original plaintiffs. In the original suit, the present appellant was defendant no.1 and Assistant Engineer Sub-division-II, PWD, Goa was defendant no.2 and State of Goa was defendant no.3. The impugned judgment and decree is against the present appellant/original defendant no.1 only and, as such, present appellant is the only aggrieved party and there is no appeal preferred by original defendants no.2 & 3, as there was no obligation placed on them by impugned judgment and decree. Prior to discussing the case of the rival contesting parties, the averments in the plaint and in the written statement and the issues framed and the answers given and the final order passed are mentioned herein below to have proper perspective of the case. 2. Present appellant is hereinafter referred to as the defendant no.1 whereas the present respondent no.1 is referred to as plaintiffs. 3. It is the case of plaintiffs that they have purchased the suit plot which is admeasuring 610 square metres by registered sale deed dated 25/02/2004 and subsequent deed of ractification/rectification from one Jose Adolfo Figueredo. Said Jose was the owner of 4/8th part of the property known as “Govatil Choato”. Said property was enrolled in the Taluka Revenue Office of Quepem under matriz No.1125. It is situated in Village Shelvona. The 4/8th share of said Jose was surveyed and numbered as 31/44. Out of said survey number plaintiffs have purchased 610 square metres of land as mentioned above. Admittedly, about 25 years back prior to the purchase of the land of the plaintiffs, defendant no.2 had constructed a road through the said survey number and which is referred as 'tar road' in the plaint. The property purchased by the plaintiffs is bounded as follows: On North by remaining property of vendors and partly by road, On South by property bearing Survey No.31/50, On the East by PWD road, and, On the West by property surveyed under no.30/1. 4. Defendant no.1 owns a house in the property bearing survey no.30/1, which is lying towards the western side of the property of the plaintiffs being part of survey no.31/44. 4. Defendant no.1 owns a house in the property bearing survey no.30/1, which is lying towards the western side of the property of the plaintiffs being part of survey no.31/44. Sometime in last week of November, 2004 defendant no.1 managed to get truck loads of mud and laid it on the northern part of the plot purchased by the plaintiffs. It was specifically so laid towards the south of the existing tar road abutting the north boundary of the plot of the plaintiffs. In the plaint, it is specifically averred that the said dumping of mud was covering the area of about 130 square metres from the 610 square metres plot purchased by the plaintiffs and it was so done by defendants no.1,2 & 3 at the behest of defendant no.1. The said encroached area was demarcated by the letters A,B,C,D on the copy of survey plan filed along with the plaint. According to the plaintiffs, defendant no.1 had no right of whatsoever in nature to construct the road by putting mud on the part of the plot purchased by the plaintiffs. Consequently, the suit was filed and different reliefs were claimed. Out of those reliefs only reliefs no.(b) and (d) were granted by the trial Court vide impugned judgment and decree. The operative part of the order of the judgment of the trial Court is reproduced hereunder: “The suit is decreed in terms of prayers (b) and (d) only against the defendant no.1 with costs. The defendant no.1, her children, representatives, agents, servants, etc. are hereby permanently restrained from constructing the road in the suit plot. The defendant no.1 her children, representatives, agents, servants, etc. are hereby directed to remove the mud dumped in the suit plot more particularly depicted in the plan at exbt.69 as an encroachment in the suit plot. Sd/- (P.V. Sawaikar) District Judge-3, South Goa, Margao” The prayer clauses (b) & (d) which are allowed by the trial Court read thus: (b) For a permanent injunction restraining the defendant no.1, her children, relatives, servants or agents in any manner dumping any further mud on the suit encroachment, and/or constructing the road over the suit encroachment, and/or doing any tarring or black topping over the suit encroachment; (d) For a mandatory injunction directing the defendants, jointly and severally, to remove the mud dumped upon the suit encroachment. 5. 5. So far as prayer clause (a) is concerned plaintiffs have asked for the declaration that the dumping mud by the defendants upon the suit encroachment constitute tress pass by the defendants on the property of the plaintiffs. So far as prayer clause (c) is concerned, plaintiffs asked for permanent injunction against defendants no.2 & 3 and their servants, agents, etc. At this juncture, it must be mentioned that during the trial defendants no.2 & 3 came with the plea that they have nothing to do with dumping of the mud over the suit plot and, as such, their submission was accepted by the trial Court and no relief was granted against them. Prayer clause (e) is concerning asking for damages/mesne profits at the rate of Rs.100/- per day from the defendants jointly and severally for dumping of the mud. Needless to mention that what is granted by the trial Court is prayer clause (b) and (d) as detailed above and they were so granted by accepting the case of the plaintiffs that defendant no.1 had no right over the said part of the plot where the mud was laid by defendant no.1 and, as such, he was injuncted and mandatory directions were given to remove the already laid mud. 4. The defence of defendant no.1 is manifold and according to him there was easementary right in his favour to pass and repass over the said portion of the plot and specifically over the area which is demarcated by the alphabets A, B, C, D in the plan produced by the plaintiffs. Another defence is that according to the defendant no.1 there was already in existence a road more than 20 years back and this is the same road which is beyond the property of the plaintiffs which they purchased from one Jose Adolfo Figueredo. It was also the defence of defendant no.1 that suit fails on account of misjoinder of defendants no.2 & 3, inasmuch as they have not taken any part in the construction or dumping of the mud on the road. It is also the defence that the plaintiffs have not given the precise dimensions of the suit plot and had wrongly mentioned and described the northern boundary of his plot as having part of plot no.31/44 and the existing road. It is also the defence that the plaintiffs have not given the precise dimensions of the suit plot and had wrongly mentioned and described the northern boundary of his plot as having part of plot no.31/44 and the existing road. In short, according to the defendant no.1, he had easementary right over the road which is alleged as an encroachment by the plaintiffs and, as such, consequently according to defendant no.1, plaintiffs had no locus to file any suit for injunction much less for any damages or mesne profits. 5. So far as defendants no.2 & 3 are concerned they disputed having taken any action of dumping the mud on any portion of the suit plot or the encroached area. On the strength of the pleadings following issues were framed by the trial Court which are reproduced hereunder: ISSUES FINDINGS 1. Whether the plaintiffs prove that since there was no road available for the defendant no.1 as an access to her house, the defendant no.2 around 20 years back constructed a road about 3 metres wide connecting the house of the defendant no.1 and houses of some others upto the road on North-South direction passing through the said property bearing survey no.31/44? Affirmative 2. Whether the plaintiffs prove that the plot sold to the plaintiff no.1 vide sale deed dated 12/03/2004 and Deed of Rectification dated 18/10/2004, (suit plot) has an area of 610 square meters, having boundaries as described in paragraph 6 of the plaint? 3. Whether the plaintiffs prove that the defendant no.2 in the last week of November, 2004 by using their trucks started dumping mud in the suit plot and constructed a road therein, thereby making encroachment in the suit plot in an area of 130 sq. meters as shown under letters ABCD in the copy of survey plan annexed, to the plaint at exhbt. 'D' for the benefit of the defendant no.1? Affirmative 4. Whether the defendant no.1 proves that the alleged encroachment is a part of the road existing for the last more than 20 years and in use by defendant no.1 and others, as the only accessible road to their houses and the same has crystallized as easementary right? Negative 5. Whether the defendant no.1 proves that the suit encroachment is not falling in the suit plot? Negative 6. Negative 5. Whether the defendant no.1 proves that the suit encroachment is not falling in the suit plot? Negative 6. Whether the defendants prove that the portion alleged as suit encroachment is acquired by the Government? Negative 7. Whether the defendant no.1 proves that the suit is bad for misjoinder of defendants? Negative 8 What relief? What Order? As per final order. 6. Without going much into the details as to the analysis of the substantive evidence of the witnesses examined by rival parties, suffice it to say that the evidence produced on behalf of plaintiffs is by examination of plaintiff no.1 as PW-1, PW-2 a Woman residing in the neighbourhood of defendant no.1, PW-3 Engineer Nilesh Dessai who produced the plan Exhibit 60. So far as the plans in the property are concerned one more plan is brought on record on behalf of defendant no.1 and it was Exhibit 70 i.e. the plan drawn by one engineer Mr. Dangi. Said plan was relied upon by defendant no.1. However, said Dangi was not examined. Plaintiffs also produced the initial certified plan at Exhibit 56 and the sale deed of purchase of the part of property Surveyed under no.31/44, dated 25/02/2004 and also the deed of ratification dated 15/10/2004. The sale deed and deed of rectification are at Exhibits 57 and 58. So far as PW-2, one Smt. Manik Naroji is concerned, surprisingly she was also examined as witness for defendant no.1. However, her defence was described by the trial Court considering that she had supported the case of both the parties and, as such, her evidence is not trustworthy. In the opinion of this Court this has rightly been done by the trial Court and her evidence is not considered in order to decide the matter. So far as defendant no.1 is concerned, DW1 one Sanjay Dessai is examined who is the son of defendant no.1. He produced power of attorney giving him authority to give evidence. He also produced survey plan at Exhibit 75. On behalf of defendant no.1 one engineer by name Arun Patil was examined as DW2. He produced inspection report Exhibit 81. One neighbouring resident of defendant no.1 was examined as DW3. He is Ankush Dessai. As mentioned earlier Smt. Manik Naroji is also examined as DW4 and one more Prakash Naik was examined as DW5. 7. On behalf of defendant no.1 one engineer by name Arun Patil was examined as DW2. He produced inspection report Exhibit 81. One neighbouring resident of defendant no.1 was examined as DW3. He is Ankush Dessai. As mentioned earlier Smt. Manik Naroji is also examined as DW4 and one more Prakash Naik was examined as DW5. 7. So far as present appeal is concerned, what is important is whether the issue nos.2,3 & 5 are properly answered or not, as these issues are going to the root of the matter as to whether the alleged dumping of mud is within the property purchased by the plaintiffs and whether over the said part of the property over which the mud was dumped, defendant no.1 has any easementary right. In order to answer within the issues the trial Court had dealt with the substantive evidence of the witnesses examined on behalf of the parties and also mainly placed reliance on the plans produced by rival parties. The plant Exhibit 69 was produced by PW3 Nilesh, who had surveyed the property and plan Exhibit 70 is the plan produced by defendant no.1 and it was prepared by one Dangi. However, it is significant to know that said Dangi was not examined by defendant no.1 to support his case that the foot way in between the plot of land admeasuring 610 square metres purchased by plaintiffs and the property bearing Survey No.30/1, is within the boundaries of the plot purchased by the plaintiffs. Though defendant no.1 placed reliance on the map Exhibit 70 prepared by Dangi which allegedly show the said pathway within the boundaries of the plot produced by the plaintiffs subsequently he relied on the map produced by the engineer Arun Patil, DW-2. The inspection report prepared by said DW-2 is Exhibit 81. The learned trial Court had critically examined the contention of the defendant no.1 and compared both the plans i.e. plan Exhibit 70 of Dangi and the inspection report of Arun Patil DW-2 and came to the conclusion and rightly so in the opinion of this Court that the defendant no.1 had failed to establish that defendant no.1 had access through the property of survey No.31/44 and alternatively that access is lying beyond the boundary limits of the plot admeasuring 610 square metres produced by the plaintiffs. It is observed that while answering these issues no.2,3 & 5 respectively, 2 & 3 in affirmative and 5 in negative, the trial Court had concluded that there was a tar road already in existence prior to 20 years of he purchase of the suit plot of the plaintiffs and such tar road was dividing the survey no.31/44 and towards east, but was joining the road which was running north south and known as Curchorem Assolda road. Furthermore, the trial Court had discussed the evidence of DW1 and 5 and came to the conclusion that defendant no.1 had failed to establish that he had been using the suit road as motorable access continuously, openly and peacefully without any interruption and as of easementary right for more that 20 years. Moreover, it is brought to the notice of this Court during the arguments on behalf of the original plaintiffs, present respondent no.1 that during cross-examination DW1 had accepted that he had asked for permission to use the road from the plaintiffs. On this aspect, the learned Court had dealt with the evidence of DW-3 Ankush Dessai inasmuch as DW-3 in his cross-examination has stated that he and husband of DW1 had approached Jose Adolfo Figueredo, the earlier owner of Survey No.31/44 and obtained permission for using the suit road and in the year 1979 said Jose Adolfo Figueredo had come to the property and had identified the suit road which they could use and that road was earlier in possession of plaintiff no.1 and by this the trial Court came to the conclusion that the user if any of the suit road by defendant no.1 was permissive and, as such there cannot be any question of establishment of easementary right. Considering the substantive evidence of the defendants' witnesses, in the opinion of this Court no error can be found in the said reasoning. 8. Now coming to the issue nos.6 and 7, defendants did not lead any evidence on this aspect as to the encroached portion was acquired by Government at any time. On the contrary, defendants no.2 & 3 have admitted that they do not have any right over the suit access. So far as issue no.7 as to misjoinder of necessary parties, the trial Court had discussed this issue in para 36 of the impugned judgment and decree. On the contrary, defendants no.2 & 3 have admitted that they do not have any right over the suit access. So far as issue no.7 as to misjoinder of necessary parties, the trial Court had discussed this issue in para 36 of the impugned judgment and decree. It was the apprehension of the plaintiffs that defendants no.2 & 3 were helping defendant no.1 and were in fact constructing the road and this apprehension was on the basis that son of defendant no.1 was in the ministry of Goa Government, and according to PW1 he was informed by DW-1 i.e. son of defendant no.1 and also by the engineer of Government of Goa that Government is constructing the road. On this premise, original defendants no.2 & 3 were added as party defendants and, as such, the trial Court answered this issue in the negative. 9. In any way the substantive evidence of PW1 and PW3 coupled with plans produced along with the plaint and the plan Exhibit 69 prepared by PW-3 Niesh and comparing the plan prepared by Dangi Exhibit 70 and the evidence of engineer DW-7 Arun Patil in the opinion of this Court there cannot be different view taken for answering the important main issues i.e. issue nos.1 to 5 and, as such, there is nothing to entertain the present appeal and same is accordingly dismissed and disposed off with no order as to costs.