Vassudev Narayn Raut (Deceased) and Another vs Dhondu Tukaram Terekholkar and Another

S.C. Dharmadhikari, J.

P.C.:-

This is a Defendant''s Second Appeal. The Appellants-Defendants succeeded before the Trial Court in a suit being Regular Civil Suit No. 56/2002/C. The Civil Suit was dismissed by the Trial Court upon the reasoning that the Plaintiffs-Respondents failed to prove that they were using the access since 1975 and that they are entitled to restrain the Defendants from encroaching, obstructing, blocking the suit access having a width of 2 metres. The Plaintiffs-Respondents filed a appeal before the Court of District Judge-3, South Goa, Margao being Regular Civil Appeal No. 121/2008/III. That Appeal was decided on 29th April, 2009.

The lower Appellate Court held that an easementary right is not being claimed, it is the case of both occupants that they are in possession of land belonging to the Government. The Respondents-Plaintiffs were in use and occupation of suit house since 1983. There is an access of 2 metres width on which obstruction was placed by Appellants-original Respondents. The Respondents-Plaintiffs have not claimed suit access as an easementary right, but, access to the property which is in their possession and the true owners are not before the Court. The Appellate Court therefore, decreed the suit and granted permanent injunction as claimed.

In this Second Appeal, it is contended that the claim does not show right to pass over this portion so as to reach the house of Plaintiffs is claimed and it was a claim of easementary right from 1975, which is found as false. Therefore, the requirement is not fulfilled and therefore, suit cannot be decreed. Moreover, there is no prayer seeking declaration in favour of the Plaintiffs and against the Defendants-Respondents. Therefore, substantial point of law and particularly questions 1,2 and 8 would arise.

On the other hand, it is contended on behalf of Respondents-Plaintifffs that Appellate Court has rightly found that no easementary right has been claimed, but, that there has been an access for going to the property of Respondents-Plaintiffs, which is a 2 metres wide portion, where obstruction is placed by the Defendants, which is to be removed by the Defendants and the Appellate Court has interfered and Decreed the suit.

Having perused the necessary material on record, I am of the opinion that no substantial question of law arises in this Second Appeal. The Court below has proceeded on the basis that the house was constructed in 1975 is a false statement. Once the Plaintiffs have come before the Court with a clear case that right from 1975 the Plaintiffs and their family members have been using the access, and the one which is marked as path at annexure P/4, therefore, there is nothing by which easementary right is claimed. Therefore, in the absence of proper pleadings and proof and in the light of the false statement, the Appellate Court has rightly stepped in and held that statement of the Respondents-Defendants before the lower Appellate Court that the house was constructed in the year 1975 has been falsified because the Plaintiffs in evidence has admitted that the house was purchased from Madhu Naik in the year 1983. In such circumstance, atleast from 1983, the Respondents-Plaintiffs were in possession of the house. This finding is recorded in paragraph 22 of the Judgment and based on the testimony of Smt. Surekha/P.w.1 that the balance portion on the eastern side is in possession of the Plaintiffs that they have been visiting the house by an access which could not be access other than the suit access. This is a case of 2 houses been constructed/acquired by parties on Government land and dispute between them is on a small portion of access of 2 metres in width. Once factual possession is admitted that from 1983 onward the Respondents-Plaintiffs were in possession of the house with the only access thereto, then, the suit needs to be decreed on that basis particularly because that case is proved. There is nothing erroneous or perverse in decreeing the suit, when, there is no other access. However, in the peculiar facts of this case, substantial question of law does not arise for determination and thus understood there is no need to interfere with the finding of fact. Hence, I am of the view that Second Appeal is not maintainable and therefore Second Appeal is accordingly dismissed. No Costs.