Full Judgment Text
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CASE NO.:
Appeal (civil) 901 of 1999
PETITIONER:
Justiniano Antao & Ors.
RESPONDENT:
Smt. Bernadette B.Pereira
DATE OF JUDGMENT: 22/11/2004
BENCH:
Ashok Bhan & A.K. Mathur
JUDGMENT:
J U D G M E N T
A.K. MATHUR, J.
This appeal is directed against the order passed by the Single
Judge of the High Court of Bombay, Panaji Bench, Goa in Second
Appeal No.4 of 1995 on February 13, 1998 whereby learned Single
Judge has reversed the order passed by the first appellate Court.
Brief facts which are necessary for disposal of this appeal are
that Smt. Bernadette B.Pereira filed a suit seeking declaration that
she had acquired easementary right of access through the property of
respondents, Shri Justiniano Antao, his wife Smt.Seaman Antao and
Shri Diogo Antao ( hereinafter referred to as the respondent-
defendants) and for permanent injunction against the respondent-
defendants for restraining them from obstructing, blocking, interfering
with the motorable access.
The trial court by its order dated February 26, 1991 decreed the
suit of the plaintiff against the respondent-defendants holding that
the plaintiff had right of motorable access to her house through the
property of the respondent-defendants by way of easementary right
through prescription. On appeal being filed before the District Court
by the respondent-defendants, the judgment of the trial court was
reversed by the first appellate court on two grounds, namely, that
the plaintiff had failed to allege in the pleadings that the way in
question was not being used as of right and since the way was not
claimed as of right the relief in question could not be granted to the
plaintiff in view of Section 15 of the Easements Act, 1882 which
provided that easementary right must be claimed as of right. The
second ground on which the findings were upset was that the
plaintiff’s property was bounded on two sides by road and it does not
stand to reason that in such a state of affairs the plaintiff would pass
through the property of the respondent-defendants in order to reach
the same road which bounds the property of the plaintiff. Aggrieved
against the said order the plaintiff filed a second appeal before the
High Court of Bombay, Panaji Bench, Goa and the High Court
reversed the finding of the first appellate court and hence this appeal
on grant of special leave.
The plaintiff and her husband Shri Bruno B.Pereira are
permanent residents of Chandor-Goa and are absolute owners in
possession and peaceful enjoyment along with others a landed
property known as "COLOSSO" situated at Colosso, Chandor,
Salcete, Goa and in this property there exists their residential house
which faces towards the eastern side built by her in-laws more than
75 years ago bearing village Panchayat House No.432. Besides the
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said house, there exists a garage on the north-eastern corner of the
said house, built by her husband more than 25 years back. Her house
along with the garage is surrounded by a compound wall on the
eastern side and west, north and south with ado of rubbles and on
the eastern side of the said compound wall, there is an iron frame
gate of about 4 metres width. This compound wall was also
constructed by her in-laws at the time of construction of the said
residential house. It is alleged that prior to her marriage, her husband
owned a car besides two trucks, one in working condition and the
other in scrap condition and one luna moped. These vehicles were
bought between the period 1960 and 1982 and these vehicles were
being parked in the said garage from time to time. The defendants
are the owners of the adjoining property on the eastern side of her
property through which the suit access passes, the same is surveyed
under No.9, Sub-division No.15 of Guirdolim village. It is alleged by
the plaintiff that there exists a motorable access of about 50 metres
long starting from the main village Panchayat public road and
adjacent to the eastern boundary wall of the plaintiff’s property and
passes through the defendants’ property under survey No.9/15 and it
reaches to the gate of the plaintiff. It is alleged that the plaintiff had
been enjoying the suit motorable access peacefully, continuously
free from any obstruction and as an easementary right for the last
over more than about 25 years and prior to that by her in-laws for
more than 75 years for all purposes. It is alleged that even
harvesting paddy crops were brought by the plaintiff through the
trucks through the access motorable road. It is alleged that on July
5,1986 at about 8.00 P.M. the defendants dumped three bullock
cardtloads of rubble stones near the starting point of the suit
motorable access thereby attempting to obstruct the same. The
plaintiff not to strain the relations with the defendants removed the
said obstruction of rubble stones from the suit motorable accesses.
Then again on July 6,1986 the defendants abused the plaintiff and
started pelting stones. It is alleged that the defendants threatened the
plaintiff that they are going to block the said access. A complaint
was filed by one of the sons of the plaintiff. The contents of the
complaint was that the defendants had no right or claim to interfere
with the suit access as they have acquired a right by way of
prescription. The suit was contested by the defendants by filing a
written statement. It was pointed out in the written statement by the
defendants that there was an opening to the compound wall of the
plaintiff on the southern side which gave access to the public road
and the same was used by the plaintiff as per access to go from the
public road to her house. They denied that there was any access
passing through the property of the defendants lying on the eastern
side of the plaintiff’s property. It was submitted that the plaintiff was
always passing through the wide gate which she had opened in her
compound wall on the south-east corner directly opening on the
public road. It is alleged that this gate was closed by the plaintiff only
in 1984 so as to claim the suit access which they had never used for
all these years. It was alleged that they were using the access
through the south-eastern gate and it is only closed in 1984.
On the pleadings of the parties three issues were framed which
read as under :
" 1. Whether the plaintiff proves that she
is entitled for a decree that she has acquired
the right by way of prescription and
easementary right for a motorable road in the
suit property ?
2. Whether the plaintiff proves that she is owner
in possession of a property known as
"Colosso", situated at Colosso, Chandor,
Salcete, Goa, registered in the Land
Registration Office under No.458 and in the
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Revenue Office under Matriz No.51 ?
3. Whether the plaintiff proves that she is entitled
for an injunction as prayed in prayer (b) of the
plaint?"
The plaintiff examined five witnesses. P.W.1, Bruno B.Pereira,
is the husband of the plaintiff and the power of attorney holder
of the plaintiff. He has deposed that his residential house is in
Survey No.9/1 and this property is bounded by eastern side by
the property of the defendants and west by the property of one
Cruz, on the north by the property of one Fernandes and to the
south by a public road. He has deposed that there is a garage
constructed and his house was constructed by his father about
80 years back and the garage was constructed about 30 years
back. He has deposed that in order to go to his house he has
to take his vehicles to the defendants’ property which lies on
the eastern side. The length of the access passing through the
defendants’ property is about 50 metres and this access is
being used from his childhood and ever prior to that. Her has
further deposed that he has no other access to go to his
house. It is also submitted that in between the rubble stone
wall on the south of the public road there is a drain of about
one and half foot deep. He admitted that the southern side wall
was broken at the corner of about 10 years back and the same
was repaired by him. He has deposed that as the access
through the property of the defendants was obstructed on July
5, 1986 therefore, the present suit was filed. It was put to him
in the cross-examination that he has closed the opening on its
southern side wall in the year 1984 and started using the suit
access from 1984 onwards. He has also denied that the drain
which was on the southern side of the property was repaired by
him in order to take his vehicles from the southern side by
public road. P.W.2 is another person who claims to have
knowledge about the plaintiff’s property. He has admitted that
the on the south eastern side of the plaintiff’s house there was
a gate. On the south of the property there is a public road and
in between the road on the south and the southern wall of the
compound wall of the plaintiff there is a drain. However, he has
deposed that the plaintiff is using the access on the eastern
side for bringing their vehicles. He has further deposed that his
house is at a distance of five minutes walk from the house of
the plaintiff. He is friendly with the plaintiff and is visiting his
house for a long time. P.W.3 has stated that from the date of
her marriage she has been residing in Chandor. She has
deposed about the situation of the property and has also
deposed that the plaintiff had four metres wide gate on the
eastern side. She also admitted that on the southern side of the
plaintiff’s house there is a compound wall of rubble stone and
beyond that there is a public road. P.W.4 , Norma Bakboda has
also similarly deposed. Likewise, P.W.5- Alleluia Gomes. As
against this, the defendants have examined Justianano Antao,
Defendant No.2 as D.W.1. He has deposed that their property
is situated outside the compound wall of the plaintiff. He has
acquired the same through their ancestors. It is allege that the
plaintiff has a compound wall on the south and west of their
property. He has also deposed that towards the west there is
a public road. He has further deposed that presently the
plaintiff comes to the road by passing through their property.
But initially the plaintiff was not using his land to come to the
main road but has started using the same since 1984. Prior to
1984 the plaintiff used to come to the main road from the
southern side of his property where there was a gate. He has
deposed that the plaintiff’s cars and trucks used to pass
through that gate. He has further deposed that prior to 1984 the
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plaintiff had a very small opening from the eastern side in his
property. It was alleged that at the time when this small gate
was installed he and his brother were on board of ship. After
they saw the gate they kept some rubble stones in their
property in front of this gate. But the plaintiff removed the same
overnight. It is alleged that the plaintiff constructed a road with
the help of kharate, belt and chains. He has deposed that
photographs were taken by one Anthony Dias, the
photographer. He has also deposed that the plaintiff can take
their vehicles from the southern side by making an opening
which was in existence previously, by filling the drain towards
south by mud. It has also been deposed by him that the open
land belongs to him. It is admitted that in the year 1984, the
plaintiff widened the opening by putting a gate in the eastern
compound wall. Previously, it was a small opening and it was
obstructed by them. He admitted that no complaint was filed by
him in 1985 or in 1986. D.W.2, Rosario S.Antao, admitted that
in the eastern side of the plaintiff’s house is the property of the
defendants. He has also deposed that on the south of the
compound wall of the plaintiff there was an opening. It was
existing for about 30 to 40 years. Presently it was closed with
the help of rubble stones. It was deposed by him that earlier
opening was smaller but subsequently it was widened. He has
also deposed that in the year 1976 he was one of the Panch of
the village Panchayat and every year the Panchayat used to dig
the drain for the passage of water near the eastern compound
wall of the plaintiff. The plaintiff used to take his truck by
putting mud over the said drain. He has also deposed that the
opening in the southern compound wall was closed by the
plaintiff in the year 1984 and the plaintiff widened the opening
from the eastern compound wall after about 2 to 3 years of
closing of the opening in the southern wall. D.W.3 is Anthony
Dias, the photographer. He has taken the photographs of the
compound wall and he has produced the same as Ext.D.W.3/A
along with the negatives of the same. He has deposed that
these photographs were clicked in the year 1986. These
photographs were also produced before us and we have
perused the photographs. It appears that there were pillars on
both sides showing that there was a gate. D.W.4, Chandrakant
Kakolkar has deposed that in front of the house of the plaintiff
he was washing his clothes. He has also deposed that towards
the south of the house of the plaintiff there exists a road and
the plaintiff has access to come to the road but the same was
closed by the plaintiff in the year 1984. He has also supported
the defendants that there was a small opening which was
widened subsequently.
On the background of these evidence which has been led
by the parties, the trial court after appreciating the evidence felt
persuaded to grant reliefs to the plaintiff and it observed that
the plaintiff is entitled to permanent injunction restraining the
defendants, or their agents, servants or any other person acting
on their behalf from blocking, obstructing or interfering with the
suit motorable access in any manner.
Aggrieved against this order an appeal was preferred and
the appellate court reversed the findings of the trial court that
there is admission by the plaintiff that there existed a public
road towards the west and south of their property . It was
further observed that when the plaintiff has got road towards
the west and south in that case why the plaintiff should be
permitted to use the way from the property of the defendants.
The first appellate court also observed that in order to establish
acquisition of easement by prescription the plaintiff is duty
bound to prove that she has been peaceably and openly using
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the land of the defendants without interruption for the last 20
years. It further found that there is no pleading in the plaint that
the plaintiff used the said access for 20 years as an easement
and as of right in order to get the acquisition of easement by
prescription. It further found that it is not the case of the plaintiff
that she has no other way out and she cannot use her property
without passing through the property of the defendants. It also
found that in the south west of the property of the plaintiff there
is an opening and she can have access to that. Therefore, the
first appellate court found that the plaintiff has failed to prove
that she is entitled for a decree that she has acquired the right
of way by prescription for a motorable road in the suit property
and accordingly reversed the finding of the trial court and
dismissed the suit.
Aggrieved against this, the matter was taken in the
second appeal before the High Court. Learned Single Judge of
the High Court of Bombay, reversed the finding of the first
appellate court and decreed the suit of the plaintiff by
upholding the order of the trial court and setting aside the order
of the learned Additional District Judge. Hence, the present
appeal.
We have gone through the three judgments i.e. trial court,
first appellate court and that of the High Court. We have gone
through the evidence adduced. From this, it is more than clear
that there is no specific averment in the plaint or in the
statement of the witnesses showing that this access from the
land of the defendants was used as of right for the last 20
years. The evidence very categorically shows that the plaintiff
has an access on the south east side and this was being used
by her for a long time. It was pointed out that only in the year
1984 the plaintiff has started using the access through the
property of the defendants. It is also admitted that the
defendants were during that time on board of ship and as
soon as they came and saw the use of their land by the
plaintiff, they put obstructions to it. Therefore, it is clear that it is
not the case that the plaintiff has been using the access as of
right through the property of the defendants for more than 20
years. Since the plaintiff has an access through the southern
side of her property we see no reason why the property of other
persons be used as an access to her house. If the plaintiff had
no access to her house except through that of the property of
the defendants then perhaps we would have considered
appreciating as easement of necessity. But in order to
establish a right by way of prescription one has to show that
the incumbent has been using the land as of right peacefully
and openly and without any interruption for the last 20 years.
There should be categorical pleadings that since what date to
which date one is using the access for the last 20 years. In
order to establish the right of prescription to the detriment of the
other party, one has to aver specific pleadings and categorical
evidence. In the present case, after going through the
pleadings as well as the statement of the witnesses it is more
than clear that the plaintiff has failed to establish that she has
been using the access peacefully, openly as of right for the last
20 years. More so we find that material placed on record and
especially the photographs which have been exhibited and
marked as Ext.D.W.3/A in the court that there are two pillars
showing the existence of a gate in southern side but it has been
closed down by rubble stones. The defendants have put up a
strong case that the plaintiff has an opening in the southern
side and it is amply established that there exist two pillars
showing the existence of a gate which has been covered by
rubble stones in the southern side. It was also pleaded that the
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plaintiff was using the same and it is only after 1984 she got the
gate constructed through the land of the defendants. Therefore,
on the basis of the evidence and statement of the witnesses,
we are satisfied that the first appellate court has correctly
approached the matter and the view taken by the High Court as
well as the trial court does not appear to be based on correct
appreciation of facts.
In the result, we allow the appeal and set aside the order
of the High Court as well as the order of the trial court and
dismiss the suit and we uphold the order of the first appellate
court. There shall be no order as to costs.