1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 617 OF 2007. 1) Mrs. Patricia Ann D'Souza alias Supriya Bharat Jalan major of age, married, and her husband, 2) Mr. Bharat Jalan, major of age, Both residents of 10, Alexandra Terrace, First Floor, Byculla, Mumbai. .. Petitioners. Versus 1) Mrs. Flory Lopes, major of age, married; and her husband, 2) Mr. Pascoal Lops, major, of age, retired, Both residents of House No.234, Khobravaddo, Calangute, Bardez-Goa. .. Respondents Mr. D. J. Pangam, Advocate for the petitioners. Mr. S.D.Lotlikar,Senior Advocate with Mr. P. Lotlikar, Advocate for the respondents. Coram :- S. A. BOBDE, J. Date : - 25th April, 2008. ORAL JUDGMENT : 1. Rule returnable forthwith. Heard by consent. 2 2. The petitioners have challenged the order of the learned Ad Hoc District Judge,(Fast Track Court), Mhapusa rejecting their application for temporary injunction. 3. The petitioners had sought temporary injunction claiming an access over the respondents' land and for restraining the respondents from making construction over their own land because according to them, the construction was being made on a road which they were entitled to use as an access. The Trial Court observed that there is no evidence of the existence of the old house in the petitioners' land to which they claim an access. It further observed that the petitioners have not produced any licence or plan for the construction of a new house on the property, further the sale deed by which the petitioners purchased the property did not show any access. It also observed that there was no affidavits filed by any of the neighbours which showed that there was an access and yet granted the injunction in the form of an order of status-quo on the ground that the contractor would interfere with access. This resulted in depriving the respondents of their right to construct on their own property for which plans have been sanctioned. In appeal, the Court came to the conclusion that the petitioners have no right of way over the respondents' land and thereupon rejected their application for injunction. The Appellate Court also observed that the sale deed 3 produced by the respondents dated 30.12.1980, by which they purchased the property, does not disclose any existing structure or so called access of motorable road over the respondent's property. The Appellate Court further found that the plaintiffs had suppressed the documents pertaining to the construction and reconstruction of the house and those pertaining to the construction of a compound wall. In fact the Village Panchayat had initiated an action against the plaintiffs and issued them a show cause notice for demolishing the compound wall which is incidentally the very wall in which the plaintiffs claim that there is a gate which is part of the motorable access. The Appellate Court came to the conclusion that the compound wall was constructed subsequently and merely because they had kept a gate it cannot be presumed that there was an access. The Appellate Court observed that there is no material whatsoever to show that the plaintiffs were using the respondent's property as of right for the purpose of an access and that, therefore, the petitioners have not established the right of prescription or any easementary right over the respondent's property. The findings are, prima facie, based on cogent materials. 4. Mr. Pangam, the learned Counsel for the petitioners strongly relied on one document which purports to show that there was a traditional access in the year 2003. This letter is written by the Town and Country Planning Department, Government of Goa to the Sarpanch 4 which inter alia offers the comment that there is opening of 3 meter's wide gate into the petitioner's plot and that there is traditional access passing through the property. It is clear that though there is such a letter, it appears that the letter is in response to some comment sought by the Village Panchayat. It does not appear to be based on evidence such as record of rights showing an access or statement of the village Panchayat. In the circumstances, there is no error of law apparent on the face of record or perversity in the judgment and order of the lower Appellate Court. 5. Mr. Pangam, the learned Counsel for the petitioners seeks continuation of the status-quo. Having regard to the fact that the respondents' construction on their own land has been held up for a long time it is not appropriate to do so. Hence, the writ petition is dismissed. S. A. BOBDE, J. SMA