1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 94 OF 2007 1. Shri Pedro Thomas Leitao, son of Custodio Leitao, major, occupation seaman, resident of House No. 85, Palmar Grande, Chinchinim, Taluka, Salcete-Goa. 2. Smt. Rose Rodrigues e Leitao, Wife of Shri Pedro Leitao, major, housewife, resident of House No. 85, Palmar Grande, Chinchinim, Taluka, Salcete-Goa. .... Appellants. V/s 1. Smt. Catarina Dias, Wife of shri Jose (Rosario) Xavier Dias, Major, housewife, 2. Shri Jose Xavier Dias, Aged major, occupation, Both residents of House No. 85-B, Palmar Grande, Chinchinim-Salcete-Goa. Represented through their Attorney, Smt. Epifania Leitao, Major, occupation housewife, Resident of House No. 85/A, Palmar Grande, Chinchinim, Salcete-Goa. .... Respondents Mr. M.S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for the Appellants. Mr. A.F. Diniz, Advocate for the Respondents. CORAM : N.A. BRITTO, J. DATE : 11th JUNE, 2008 ORAL ORDER : Heard learned Counsel on behalf of both the parties. 2 2. This is plaintiffs' Second Appeal arising from Regular Civil Suit No. 144/1996/A. The plaintiffs' suit for the demolition of a wall constructed by the defendants came to dismissed by the learned trial Court by judgment/decree dated 31/10/2006. The plaintiffs having filed an appeal, the same also came to be dismissed by judgment/decree dated 25/04/2007. 3. The defendants purchased a plot from Joao Paul Pascoal Jose Cardozo admeasuring 500 sq. mts. by deed dated 8/11/1982 from property surveyed under Survey No. 107/6. This sale deed was not accompanied by a plan and as admitted by the plaintiffs, it was demarcated on site with stones. Subsequently, the plaintiffs also purchased a plot admeasuring 500 sq. mts. from the same owner by sale deed dated 31/12/1982. This sale deed was not accompanied by any plan. In the year 1991 or there about, the defendants constructed the boundary wall to his plot which became the subject matter of dispute between both the parties and that made the plaintiffs to take the dispute, first to the Panchayat and then the Director of the Panchayat, etc. Subsequently, the plaintiffs got executed a supplementary deed with the said owner and this time with a plan annexed, which shows that the actual dispute between both the parties was in respect of a portion admeasuring 14.25 sq. mts. which as per the supplementary sale deed formed part and parcel of the property of 500 sq. mts. purchased by the plaintiffs. 3 4. The plaintiffs filed the suit for demolition stating that the cause of action to file the same arose, first in the year 1991, and the same is continuing day to day. At least now there is no dispute that the plot purchased by the defendants is on the western side of the plot of plaintiffs. The record also shows that the Chinchinim to Durga road is further west to the said plots after the plot of one Joaquim Rodrigues. 5. The Learned trial Court came to the conclusion that there was an access from the defendants property, surveyed under no. 107/6-B to reach the said main road and the said access stopped at letter B shown in Exhibit C/47, though it is stated by the learned Counsel on behalf of the defendants, that there were no such pleadings in the plaint. The learned trial Court also came to the conclusion that since the deed of sale of the defendants was earlier in point of time and as the disputed portion admeasuring 14.25 sq. mts. formed part of defendants' sale deed, the vendor who executed the supplementary sale deed on 27/04/1993 had no title to transfer the same to the plaintiffs. In other words, the learned trial Court gave a clear finding that the plaintiffs could not have acquired any right or title to the area claimed by them as forming part of their property. The learned first appellate Court apart from coming to the conclusion that the suit was barred by limitation, as it was a suit for injunction, which had to be filed within three years from the date of accrual of cause of action, also came to the conclusion that the plaintiffs had 4 failed to prove that they had an access of 2½ mts. towards the extreme South- West corner of their property to the main road. The learned first appellate Court also came to the conclusion that the defendants had not encroached on the said access by constructing a wall. The first appeal therefore came to be dismissed with costs. 6. Learned Senior Counsel appearing on behalf of the plaintiffs submits that the cause of action pleaded by the plaintiffs was a continuing cause of action as contemplated by Section 22 of the Limitation Act and in that regard has placed reliance on the case of Kuchibotha Kanakamma & Anr. V/s. Tadepalli Ranga Rao & Ors. (AIR 1957 A.P. 419). Learned Senior Counsel further submits that the learned first appellate Court without going to close quarters with the findings given by the learned trial Court, as regards the existence of the access, could not have disturbed the same and this would be a reason good enough for the admission of this Second Appeal. Learned Senior Counsel further submits that the plaintiffs were claiming the said passage as an easement of necessity and all the required ingredients were set out in the plaint and therefore the suit of the plaintiffs could not have been dismissed and the dismissal upheld. 7. On the other hand, Shri Diniz, the learned Counsel on behalf of the defendants has placed reliance on the case of Sumerlal M. Bafna & Ors. V/s. 5 D.D. Clothia & Anr. (1997 (Supp.) Bom.C.R. 371) and contended that this Court after relying upon the decision of the Apex Court reported in Balkrishna V/s. Shree D.M. Sansthan (AIR 1959 SC 798) has come to the conclusion that there was no continuous cause of action. That was the case of the operation of a lift and this Court held that the limitation would be three years from the date the lift was closed. Learned Counsel on behalf of the defendants has further submitted that both the Courts below have given a finding that the property claimed by the plaintiffs as their own, belongs to the defendants, and the suit of the plaintiffs simpliciter was with the only allegation that the defendants had encroached upon the property of the plaintiffs. 8. As already stated, the plaintiffs' suit was for the demolition of the wall constructed by the defendants in the plaintiffs' property and, more particularly, on the suit access of the plaintiffs, and for restoration of the said land to its original condition. The pleadings of para 3 of the plaint show that the plaintiffs clearly pleaded that there was the house of the plaintiffs in the plot purchased by the plaintiffs as well as the access used by the plaintiffs from the extreme South-West corner of the property. The pleadings of para 6 further show that the plaintiffs had claimed that the defendants had no right of whatsoever nature to the said access and more, particularly, to the land covered by the said access. The findings given by both the Courts clearly 6 show that the property which the plaintiffs claim to have been purchased, whether initially or by virtue of the supplementary deed, was already sold to the defendants and well demarcated on site and, as such, as rightly held by the trial Court, could not have been sold by the original owners to the plaintiffs. The plaintiffs did refer to a passage but did not claim any right to it either in terms of Section 13 or for that matter in terms of Section 15 of the Indian Easements Act, 1882. The submission of the learned Senior Counsel that the plaintiffs had claimed an easement of necessity and that there were sufficient ingredients to that effect in the plaint is a submission which cannot be accepted. In case the plaintiffs had claimed such an easement of necessity then the defendants would have been certainly in a position to demonstrate that the plaintiffs had other passages as well. 9. The plaintiffs' suit was only with an allegation that the defendants had encroached upon their property used as passage, which on facts has been held to be part of the property purchased by the defendants. 10. Substantial questions of law as framed, or otherwise, do not arise in this Second Appeal. Second Appeal is therefore hereby dismissed. N.A. BRITTO, J. NH/-