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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.