-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 49 OF 2001 1. Shashikant Narayan Saudagar, major, bachelor, 2. Smt Vidya Avinash Parab, major, widow of late Avinash Parab, 3. Shri Siddesh Avinash Parab, major, son of late Avinash Parab, 4. Kum. Sapna Avinash Parab, minor, daughter of late Avinash Parab, suing through her next friend and mother the Appellant no.2 herein Smtl. Vidya Avinash Parab. 5. Shri Ravindra Purushottam Porob, major, land lord, All the abovenamed residents of House no. 1287, Auchitwado, Tivim, Bardez, Goa. 6. Shri Kushta alias Balkrishna Vinayak Naik, major, service. 7. Shri Mohan Vinayak Naik, major, Both residents of House no. 464, Naikwado, Pirna, Bardez, Goa. …... Appellants/ Defendants V e r s u s 1. Shri Srikrishna Yeshwant Saudagar, major, landlord, Indian National, resident of Pirna, Bardez, Goa. …... Respondent/ Plaintiff 2. Smt Shalini Madhukar Samant, and her husband -2- 3. Shri Madhukar Samant, both residents of Kumkum Bldg., ground floor, Topiwada Wadi, Gorgao (West) Mumbai – 400 062. …... Respondents/ Defendants Mr. J. P. Mulgaonkar, Advocate for the Appellants. Mr. S. D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Respondents. Coram :- F. M. REIS, J Date : 9 th September, 2011. ORAL JUDGMENT The above Second Appeal has been admitted on the following substantial question of law : a) Whether the learned Additional District Judge's findings that the W.C. was contemporaneous to the ancestral house is not perverse in view of the fact that the plaintiff himself neither pleaded it to be so nor led evidence to that effect ? b) Whether in the absence of any pleadings or evidence and without parties being at issue thereto at the trial the learned Judge could hold that the inmates of the house cannot stay in the residential house in common without wall or W.C. facility and whether this finding could be a basis for declaration of right of way as claimed in the suit ? 2. I have heard Shri J. P. Mulgaonkar, the learned Counsel appearing for the Appellant and Shri S. D. Lotlikar, learned Senior Counsel appearing for the the Respondents at length. 3. The main contention of Shri Mulgaonkar, the learned Counsel -3- appearing for the Appellants is that the first Appellate Court has erroneously come to the conclusion that the Respondents had an easementary right to go to the W.C. which was located in the property belonging to the Appellants surveyed under no. 192/1 situated at Pirna Village of Bardez Taluka. The learned Counsel further pointed out that the claim of the Appellants is that they have acquired right of prescription to use the said access to the W.C. as a matter of right when, on the contrary, no findings are given by the Courts below to the effect that the Appellants were using the said access as a matter of right. The learned Counsel has further taken me through the impugned Judgment and pointed out that the learned Appellate Court has not at all appreciated the evidence on record and has come to an erroneous conclusion that the Appellants have established right to proceed to the W.C. The learned Counsel further submitted that there is no such recognised right under the Easement Act or under any provisions of law which entitles the Respondents to claim such easementary right. The learned Counsel further submitted that as far as the right to use the water from the well located in the property surveyed under no. 29/1/A belonging to the Appellants, in the written statement filed in the suit, the Appellants have stated that they have reserved such right and that they have permitted the Respondents to use the said right. According to the learned Counsel, he shall not obstruct such user in future until the common house which is located on the southern side of the property surveyed under no. 29/1/A is partitioned between the Appellants and the Respondents. The learned Counsel further submitted that such right shall be subject to the partition which would be executed between the parties in respect of the house property located to the southern side of the property surveyed under no. 29/1/A is concerned. -4- 4. On the other hand, the learned Senior Counsel Shri S. D. Lotlikar, has supported the impugned Judgment. The learned Counsel has further pointed out that the W.C. is located in the property belonging to the Respondents surveyed under no. 192/1 of the said Village and that for the purpose of using such W.C., the Respondents have an easementary right to proceed from the ancestral house to the said W.C. The learned Senior Counsel further submitted that the Courts below have rightly come to the conclusion that the Respondents have established their prescriptive right and the access to the said W.C. The learned Senior Counsel further pointed out that as far as the claim of the Respondents is concerned to use the water from the well, the same shall subsist only when the house surveyed under no. 291/1/A remains in common between the co-owners and that the Respondents shall not claim any such right in case no rights are allotted to the Respondents in the said common house when the house property is partitioned. The learned Senior Counsel further submitted that considering the Judgment passed by the Courts below, no interference is called for in the impugned Judgment. 5. Dealing with the first substantial question of law referred to herein above, on perusal of the evidence on record as well as the findings of the learned Judge, I find that there is no material produced by the Respondents to establish their claim of easementary right of prescription to use the said access through the property of the Appellants to proceed to the said W.C. The learned Counsel have not pointed out under what provisions of law such right of prescription was claimed by the Respondents to proceed to the W.C. located in his own property through the property of the Appellants. It is an admitted fact that the property surveyed under -5- no. 192/1 has been allotted to the Respondents and they have also constructed a house therein. As far as the property surveyed under no. 185/1 is concerned, it cannot be considered to be contemporaneous to the ancestral house and, in any event, the Respondents have failed to establish any right to proceed to the W.C. through the property of the Appellants. Considering the said aspects, the Courts below were not justified from restraining the Appellants from obstructing the Respondents from using the said means of access to the said W.C. The pleadings of the Respondents are also silent with right to such claim of any right recognised in law. To that extent, the impugned Judgment deserves to be quashed and set aside. 6. With regards to the right claimed by the Respondents to use the water from the well considering the submissions of both the learned Counsel, I find that no interference is called for in that regards with respect to the reliefs granted by the Courts below against the Appellants. The Respondents would be entitled to use the property of the Appellants as a means of access to the said well until the ancestral house located towards the southern side of the property surveyed under no. 192/1/A is partitioned between all the co-owners. Such right shall stand extinguished in case the Respondents are not allotted any right to the common ancestral house located therein. The substantial question of laws are answered accordingly. 7. In view of the above, the Appeal is partly allowed. The impugned Judgments dated 15.03.2001 and 03.09.1994 to the extent of granting the easementary right of way to the latrine through the third plot of the property "Gorbata" also known as "Coirat” is quashed and set aside. The remaining part of -6- the Decree stands confirmed subject to observations made herein above. 8. The Appeal stands disposed of accordingly with no Orders as to costs. F .M. REIS, J. arp/*