IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 50 OF 2009 SHRI. DAMACIO MENDONCA ... Appellant Versus SHRI. JOAQUIM ARAUJO (DECEASED) THROUGH LR\'S ... Respondent Mr. Nigel Da Costa Frias, Advocate for the Appellant. Coram:- R. M. SAVANT, J. Date:- 6th November, 2009 P.C. This is a Second Appeal challenging the Judgment and Order dated 31st March, 2009 passed by the learned District Judge-3, North Goa, Panaji. By the said Judgment and Order the appeal came to be dismissed and the Judgment and Order of the Trial Court came to be confirmed. 2. The Appellant is the original plaintiff who had filed Regular Civil Suit No: 111/99/B/C for perpetual injunction, restraining defendants from interfering with and trespassing in the suit property and for obstructing and creating a new opening. The plaintiff is concerned with Plot No. 75 in which exists a residential house. The defendants filed their written statement and denied they have created any opening in the wall and also denied trespass. 3. It was the case of the defendants that they have purchased property adjacent to the western side of the suit property by sale deed dated 23/06/1977, 26/03/1980 and 08/12/1988 the said property corresponds to chalta No: 10 of P.T. sheet No: 14. 4. It was the case of the defendants in the written statement that there was a laterite stone wall on the western side of the suit property and an opening for the last 20 years and that the defendants have been using the said opening to go to the East direction along the passage adjacent to the residential house to reach the main road and vice-versa as right of customary easement of necessity. 5. It was also the case of the defendants that in the property of Chalta No. 10 of P.T. Sheet 14, there was a well and side door on the Northern side of the property which is used for taking water through the opening on the south western side of the suit property and vice-versa. 6. The parties went to trial, the Trial Court in view of the pleadings framed an issue whether plaintiff was in possession of Chalta No. 65 and recorded a finding that the plaintiff was in fact the owner of the said property and was in possession. 7. The Trial Court also framed a issue as to whether the defendant trespassed and whether he has a right through the suit property. The Trial Court recorded a finding that the plaintiff has failed to produce evidence to show that there was existing rubble stone wall on the western boundary and that the defendant has kept a laterite stone wall with opening and steps have been laid. 8. The Trial Court however on the basis of the failure of the plaintiff to produce sufficient evidence regarding the non existence of such a access through the suit property, accordingly recorded a finding and dismissed the suit. 9. The Plaintiff aggrieved by the dismissal, filed a appeal bearing No: R.C.A. No: 101/2008. The Appellate Court confirmed the findings of the Trial Court and also recorded a finding that the Plaintiff is the owner and in possession of the suit property bearing Chalta No. 65 of P.T. Sheet No. 15 and that the defendant was using the passage. The lower appellate Court also held that the plaintiff failed to produce documents on record as to show that the wall was constructed in January, 1999 and therefore his case, that the defendant was not using the suit access from long could not be accepted. 10. Both the Appellate Court and the Trial Court have held that, the defendant has access through the suit property. Both the Courts therefore have recorded concurrent findings of fact on the said issue as regards the rights of the defendant. 11. Taking into consideration the grounds of Appeal and upon hearing the learned Counsel for the Appellant in my view, the Appeal does not involve any substantial question of law. The above Appeal is accordingly dismissed. R. M. SAVANT, J. EV