1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.68 OF 2009 1. Mr. Savio Clovis da Costa, s/o late Mr. Clovis da Costa, aged about 54 years, in service, and his wife; 2. Mrs. Maria Tereza da Costa, wife of Mr. Savio Clovis da Costa, aged about 49 years, in service, Both r/o. H.No.891, Bairo Primeiro, Assolna, Salcete, Goa. …. Petitioners V/S 1. Mr. Jose Xavier Martins, son of Mr. Andrez Martins, aged about 74 years and his wife. 2. Mrs. Trifonia D'Cruz e martins alias Martha Martins, wife of Mr. Jose Xavier Martins, aged about 74 years, Both residing at H.No.899, Bairo Primeiro, Assolna, Salcete, Goa. …. Respondents Mr. V. Menezes, Advocate for the Petitioners. Mr. V.G.P. Dukle, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 14th JUNE, 2010 JUDGMENT: Rule. By consent, heard forthwith. 2. The petitioners herein are the defendants in Regular Civil Suit No.55/2004/D. 2 3. By this writ petition, the petitioners/defendants have challenged order dated 29/09/2008 by which the application filed by the plaintiffs for temporary injunction has been granted by the learned District Judge. Earlier the plaintiffs' application was rejected by the learned trial Court by order dated 13/05/2008. 4. The defendants have their house in sub-division 4 of survey no.184. To the South of the defendants' property the plaintiffs have their house in survey no.183/4. Further, South West one Joliet Pinto, has their house in survey no.183/2. The plaintiffs have claimed a right of way and according to the learned Counsel on behalf of the plaintiffs, the same is based on prescription which enables them to go to the public road through the property of the plaintiffs. The said way has been depicted on a plan prepared by engineer Shridhar Kamat. The defendants also had prepared a report through Engineer Shri P.C. Gupta. The said report, inter alia, shows that the plaintiffs boundary wall is only about 60 cm. in height with cement mortar and with random laterite stones and it is constructed within the property and not on the boundary of survey no.184/4. Plan attached to the said report has not been produced. 5. According to the plaintiffs, the said way is a motorable access of 3 2 mts., which begins at the tar road (on the east) which adjoins the property of the defendants and further passes through the properties surveyed under nos.184/4 (of the defendants), 184/9 (of the plaintiffs), 183/2 (of the said Pinto) and 183/4, of the Village Assolna. According to the plaintiffs when they reconstructed the existing house, all the material for the construction was brought by using the said access. 6. According to the defendants, the plaintiffs have been illegally trying to claim an access through the property of the defendants. According to the defendants, the plaintiffs' access is through properties surveyed under nos.183/2,183/4,183/7,183/6 and 183/5, so as to approach the public road on the Eastern side and also to the road on the Western side which is about 15 mts. away from the plaintiffs property. 7. It appears that the plaintiff no.1 had filed an affidavit in rejoinder stating that the suit access is the only shortest access available to the plaintiffs to approach the public road and application to clarify the said statement-Exhibit 37D appears to have been dismissed. The learned trial Court appears to have placed much importance to an iron gate existing in the property of the defendants observing that it was not understood as to how the plaintiffs could claim the access from the said gate of the defendants through their property. However, the learned first appellate Court has reversed the findings of the trial Court and in my 4 view for good reasons. The learned trial Court has taken into account that in civil revision application no.98/1993 between the said Joliet Pinto and the defendants, a right of access of 2 mts. was recognised. According to the learned first appellate Court this way ought to have led somewhere and it could not have culminated into the property of the present plaintiffs and the plan and the report produced by the defendants did not show the said access through the property of the plaintiffs whereas plan and report produced by the plaintiffs showed the said access passing through the property of the plaintiffs into the property of the defendants leading unto the road which at this stage had to be preferred to the one produced by the defendants. The learned first appellate Court has also taken note of the agreement between the parties or rather between the plaintiff no.2 and the father of the defendants, who was at the relevant time appointed as the administrator in the inventory proceedings being held upon the death of their mother. The said agreement is dated 10/06/1991 and has a plan annexed, but Counsel on behalf of both the parties have fairly conceded that they are unable to throw much light as far as the said plan is concerned; but the fact remains that the defendants' father and plaintiff no.2 had recognised in favour of the said plaintiff no.2 an access leading to the private road of the defendants' father. It was clearly stipulated that “the second party (plaintiff no.2) besides the access leading to the private road of the first party, does not have any other access”. The said agreement could not 5 have been simply brushed aside as was done by the learned trial Court observing that the defendants were not bound by it. It was incumbent on the defendants to have explained which was that way or access which was recognised in the said agreement. Although the learned first appellate Court might have not observed in her order that the trial Court had arbitrarily or perversely had exercised her discretion in rejecting the application, the fact remains that on proper consideration of material produced, the learned first appellate Court, on the facts of the case, have come to a correct decision about the existence of way/access claimed by the plaintiffs. 8. In the circumstances therefore, I find there is no merit in this writ petition. Accordingly, the same is hereby dismissed. Rule is discharged. N.A. BRITTO, J. NH/-