… 1 … IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 20 OF 2004 1) Shri Efigenio Dias, major of age, businessman, resident of House No.41, 1st Ward, Colva, Salcete, Goa. 2) Shri Josinho Dias, major of age, service, resident of House No.66, Igreja Ward, Cavelossim, Salcete, Goa. Represented by his duly constituted P/ Attorney Shri Efigenio Dias .. Appellants. Versus 1) Shri Malaquias D'Costa (since deceased) son of Rosario de Costa, major of age, resident of House No.233, Afonso Ward, Cavelossim, Salcete, Goa. 1(a) Rosita barreto, wife of Remedios Barreto, d/o Malaquias D'Costa, Residing at H.No.215, Tolleaband, Chinchinim, Salcete-Goa 403715 2) Smt. Maria Lourence D'Costa major of age, wife of Malaquias D'Costa, housewife, resident of House No.233, Afonso Ward, Cavellossim, Salcete, Goa. 3) Miss Rececca D'Costa, daughter of Malaquias D'Costa, major of age, service resident of House No.233, Afonso Ward, Cavelossim, Salcete, Goa. .. Respondents … 2 … Mr. S. D. Lotlikar, Senior Advocate with Mr. K. B. Surjuse, Advocate for the appellants. Mr. A. F. Diniz, Advocate for the respondent Nos.1(a) and 3. CORAM :- U. D. SALVI,J. RESERVED ON : 2 nd August, 2010. PRONOUNCED ON : 13 th August, 2010. JUDGMENT : A challenge is thrown to the dismissal of Regular Civil Suit No.681/2000/II (new) i.e. Special Civil Suit No.333/1996/II (old) and grant of counterclaim therein by the IInd Additional Civil Judge, S.D. at Margao as well as to its endorsement in Regular Civil Appeal No.157/2001/II by the Additional District Judge, South Goa at Margao. 2. The appellants/ plaintiffs instituted the aforesaid suit in November, 1996 against the respondents herein for permanent injunction restraining the respondents from entering and interfering in the property bearing Survey No.39/40 admeasuring 575 square meters of village Cavelossim (hereinafter referred to as 'the suit property'). According to the plaintiffs, the defendants living in the adjoining property, Survey No.39/17 of village Cavelossim of … 3 … their ownership, despite having access to the public road – Afonso ward road-passing through Survey No.39/12 and 39/15 of village Cavelossim belonging to one Mrs. Albertina D'Costa, have started forcibly trespassing into the suit property, and passing through it for accessing a public road. The defendants resisted the suit and made a counterclaim to the access passing through extreme north of the suit property on the ground that the said access was being used right from the time of the purchase of the plot in their occupation in 1974 openly and without any obstruction till the month of June 1996 vide written statement dated 7th February, 1997. The defendants further elaborated their contentions with the amendment to the written statement carried out on 2nd August, 1999. The defendants pleaded that the use of the said access has been done by the defendants as a matter of right and without prior permission or tolerance and has been exercised for more than 22 years prior to the institution of the suit openly, peacefully and publicly with the consequential acquisition of right of way by prescription. With additional pleadings, the defendants gave the dimensions and the location of the access which they claimed through the suit property for accessing a public road leading to ferry. … 4 … 3. Upon considering the evidence and the provisions of Indian Easements, Act, 1882, particularly Section 15 of the said Act governing the acquisition of easement by prescription, the learned trial Court decreed the counterclaim in favour of the defendants and dismissed the suit. The learned trial Court was satisfied about the fact that the defendants have been enjoying the said access passing through the suit property peacefully, openly, and without any interruption for a period of over 22 years. In the appeal preferred from the judgment and decree passed by the learned trial Court being Regular Civil Appeal No.157/2001, the learned Additional District Judge, Margao upon reappreciation of the facts and law was not of different view than the one taken by the learned Civil Judge, S.D.,Margao. 4. In the present appeal challenging the said decisions of the trial Court and First Appellate Court the following substantial questions of law have been framed : 1. Whether a claim of easement under the Indian Easements Act, 1882 is available to a party prior to enforcement of the Act (Date of enforcement in Goa being 1.11.1978) when prior thereto easementary rights were recognized and protected by the Portuguese Civil Code,1867? … 5 … 2. Whether right of prescription being an inchoate right and which can be claimed only in the manner provided by the statute, can be claimed until the entire full period provided under the statute has expired ? 3. Whether the provisions of Article 2309 of the Portuguese Civil Code stand repealed by virtue of the enforcement of the Indian Easements Act,1882 and whether a claim under Section 15 of the Indian Easements Act, 1882 would be admissible in view of the provisions of Article 2309 of the Portuguese Civil Code ? 5. The learned Senior Advocate Lotlikar for the appellants submitted that the Indian Easements Act, 1882 came in force in the State of Goa on 1st November, 1978 and, therefore, the period of 20 years requisite for acquisition of the right of ownership by prescription under Section 15 under the said Act has to be computed from the time the Act came in force in the State of Goa; and such exercise would clearly show that the defendants were not in enjoyment of the said access for 20 years without any interruption as required under the said provision of law. For easement to crystalise, he argued, 20 years continuous use of definite/ specific easement / right to way must be shown to exist. He further argued that in order to claim benefit of user of easement … 6 … prior to coming into effect of Indian Easement Act, it must be established that the provision of law relating to acquisition of easement prior to the said Act was identical with the one prescribed under the Indian Easements Act. He submitted that in the event of period of user prior to the Indian Easements Act coming into force was to be taken into account for computing the total period of user of easement under the Indian Easements Act, it would mean that the Indian Easements Act was made retrospective in operation. In his view, such retrospective operation of law is not permissible and, therefore, the answer to the first substantial question of law has to be 'No'. According to the learned Advocate Lotlikar for the appellant prior to the coming into force of the Indian Easements Act, the Portuguese Civil Code was in force in the territory of the State of Goa. He argued that if there was no corresponding provision in the Portuguese Civil Code for acquisition of right of way by prescription, the period of use of the access was to start from the day the Indian Easements Act came into force and if there existed a corresponding provision in the Portuguese Civil Code, then the defendants ought to have specifically pleaded the case in relation to the said provision. To complement his submissions regarding the liability to plead a case under the … 7 … Portuguese Civil Code, he placed reliance on 1993(1) Bom. C. R. 465- Mecario Antonio Francisco de Cunha and Anr. Vs. Alex Fred D'Souza and Ors. 6. The written statement and counterclaim reveal no pleadings which make reference to acquisition of the right of way under repealed provisions of law i.e. Portuguese Civil Code then in force. The respondents / defendants ,as narrated above, pleaded the facts revealing their case of acquisition of the right of way by prescription as a result of peaceable and open enjoyment of the said access as of right without interruption for over 22 years. To address the submissions made in this regard by the learned Senior Advocate Lotlikar for the appellants, it would be profitable to look into the judgment delivered in Mechario Antanio Francisco D'Cunha's case (1993(1) Bombay Cases Reporter 465-Mecario Antonio Francisco de' Cunha and another Vs. Alex Fred D'Souza and others). While dealing with the submission that Article 2309 (Title V Chapter III of Portuguese Civil Code) cannot be invoked being no more available as from November 1, 1978 the day from which the Indian Easements Act came into force in the territory of Goa, the learned Single Judge, upon considering the provisions of … 8 … the Goa, Daman and Diu (Extension of the Indian Easements Act) Act, 1978 read with the General Clauses Act, 1897, held that all corresponding provisions existing prior to that date stood repealed and that corresponding provisions need not be identical, and with effect from 1 st November, 1978, a claim to easement must necessarily fall within the provisions of the Indian Easements Act. The learned Single Judge in the said case further held that if a party wants to establish any right having acquired by him based on the repealed provisions of law then in force or from saving clauses of any law in force, such party is bound to plead and show how relief prayed for is founded thereon. Thus, it can be seen that the necessity of specific pleading with reference to the repealed provisions of law arises when it is necessary to show how the relief prayed for is founded on the repealed provisions of law. It presupposes that the right claimed is acquired under the repealed provisions of law i.e. the Portuguese Civil Code before coming into force of the Indian Easements Act. 7. Section 4 of the said Extension Act extending the Indian Easements Act to the territory of Goa as found quoted in the judgment reported in 1999(2) Goa Law Times, 199- Eulalia Colaco e Rodrigues and two others Vs. Gurudas … 9 … Raikar and 3 others and cited on behalf of the appellants for the same purpose, reads as under : “4. Repeal and savings – On and from the date on which the provisions of the said Act came into force in the said territory, the corresponding provisions of any law in force in the said territory shall stand repealed.” Undoubtedly, therefore, all the provisions of acquisition of right of way under the Portuguese Civil Code corresponding to section 15 of the Indian Easements Act, 1882 stood repealed from 1st November, 1978. 8. In the instant case, the respondents/ defendants have not claimed acquisition of easement by prescription in respect of the said access under the repealed provisions of the Portuguese Civil Code, but have claimed such easement by virtue of the operation of Section 15 of the Indian Easements Act. In such circumstances, the question of pleading acquisition of right under the repealed provisions of the Portuguese Civil Code governing the acquisition of easement of right of way does not arise. The submission made by the learned Advocate Lotlikar in that regard, therefore, deserves to be rejected. … 10 … 9. The learned Senior Advocate Lotlikar for the appellants by advocating method of computation of the period of prescribed user / enjoyment of way from the date Statute comes into operation regardless of the period of such user /enjoyment prior thereto for the purpose of acquisition of right of way, has raised material question regarding the interpretation of the said Statute. Learned Advocate Diniz for the respondents in this connection invited the attention of this Court to the following illustration given under Section 15 of the said Act “ (a) “A suit is brought in 1883 for obstructing a right of way. The defendant admits obstruction, but denies the right of way. The plaintiff proves that the right was peaceable and openly enjoyed by him claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882. The plaintiff is entitled to judgment.” Learned Advocate Lotlikar dismissed this illustration as the one having no force of law. However, certainly, this illustration prompts thinking on the issue of the interpretation of the words of law. … 11 … 10. Section 15 of the Indian Easements Act, 1882 deals with conferment of substantive right to an easement by prescription in following terms : 15. Acquisition by prescription. - Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure is or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right, to such access and use of light or air, support, or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. … 12 … Prima facie, every Statute is prospective unless it is expressly or by necessary implication made to have retrospective operation. However, care needs to be taken in literal reading of the provision so as to ensure that it does not produce absurdities and anomalies. Essentially, right to easement crystalises, as submitted by learned Advocate Diniz, at the end of the period of 20 years computed from the date the right of way or any other easement has been peaceably and openly enjoyed as of right without interruption by any person claiming title thereto. If this period is to be computed from the date of coming into force of the said Act i.e. from 1st November, 1978 and not from the day as envisaged under this provision under Section 15 of the said Act, it would result in gross absurdity and anomaly in as much as the person claiming title to an easement under the said provision would be required to show peaceable and open enjoyment of such an easement as of right without interruption for that additional period which he has been in such use/ enjoyment prior to the commencement of the said Act i.e. more than what is envisaged under Section 15 of the said Act. 11. Moreover, clause (a) of the proviso to Section 4 of the said extension of the Indian Easements Act saves the previous operation of the provisions of the corresponding … 13 … Portuguese Civil Code or anything duly done or suffered thereunder from the effect of the repeal. It can also be understood from the paragraph No.7 in Mecario Antonio Francisco de Cunha's case (supra) that except the period of 30 years required to invoke the acquisition by prescription, the acquisition of easement under the Portuguese Civil Code is on the same principles as envisaged under Section 15 of the Indian Easements Act, 1882. As rightly pointed out by the learned Advocate Diniz for the respondents, easementary right of way crystalises only the end of the 20 years' period and till then it remains as inchoate. In the instant case, the appellants continued to suffer rigor of prescription both under Portuguese Civil Code and Indian Easements Act. Harmonious interpretation of both these Statutes governing the law of prescription leaves no room for the self-destructive absurdities or anomalies as pointed out herein before to arise. The Hon'ble Apex Court in Sree Bank Ltd.'s case (AIR 1966 SC 1953- Sree Bank Ltd. (in liquidation) Vs. Sarkar Dutt Roy and Co.) observed as follows : “For retrospective operation of the provision of an Act, it is not necessary that it must be stated that its provisions would be deemed to have always existed. That is one of the modes and may … 14 … be an effective mode of providing that the provisions would have retrospective effect. Retrospective effect can also be gathered from the language of the enactment and the object and intent of the Legislature in enacting it.” 12. The language of Section 15 of Indian Easements Act requires any person claiming title to a right of way, and for that purpose to have such a right made absolute, to peaceably and openly enjoy such right of way as an easement as of right, without interruption, for 20 years and nothing more. Considering the language of this enactment, its retrospective effect, so as to take into consideration the period of user/ enjoyment of right of way prior to it coming into effect for the purposes of computing the prescribed period envisaged thereunder, can be gathered and, the first substantial question of law has to be answered accordingly. 13. In view of aforesaid discussion, there can be no different answer to the next substantial question of law framed in this appeal. 14. Article 2309 of the Portuguese Civil Code deals with the claim of the owner of enclaved property to acquisition of right of way through a neighbouring property … 15 … by payment of price judicially fixed in a proceeding before the Court. No issue regarding the acquisition of right of way by purchase has arisen in the present case. Question framed in respect of the repeal of the said Article, therefore, does not arise in the present appeal. 15. Inviting the attention of this Court to Section 23 of the Indian Easements Act, 1882, which obliges the dominant owner of right of way not to vary his line of passage at pleasure, the learned Advocate Lotlikar for the appellants submitted that the respondents had changed the access from middle to the northern extreme- vide sanctioned plan for construction Exh.64 collectively, and had thereby defeated their case of continuous and uninterrupted use of specific right of way for the stipulated period under law. In this regard, it only needs to be observed that both the Courts below upon considering the entire evidence on record gave concurrent finding of the fact in relation to the peaceable, open, user/ enjoyment of the access in question i.e. the access to the northernmost extreme of the suit property for well over the prescribed period under law without any interruption. A glance through the evidence also fortifies this view, more particularly when the DW1 categorically … 16 … asserted that they were not using the access over middle of the property. No perversity or non-application of mind is evident from the impugned judgments. 16. As observed herein above, the provisions of Portuguese Civil Code governing the acquisition of right of way by prescription were in force in the territory of Goa by virtue of Section 5 of The Goa, Daman and Diu (Administration) Act, 1962 prior to 1st November, 1978 and as such, there is no need to draw judicial wisdom, which sees reason in applying the principles underlying the provisions of the Indian Act (Indian Easements Act) where it was not extended from the judgment reported in AIR 1970 Allahabad 307 Bhondoo and Others Vs. Udatoo for the purposes of answering controversy in the present case. 17. The impugned judgments and decrees, therefore, cannot be faulted in this second appeal. The appeal, therefore, stands dismissed with costs. U. D. SALVI, J. SMA … 17 …