-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 81 OF 2007 Mrs. Luciana Piedade Fernandes, R/o. House no. 165, Wades Aframent Siolim, Bardez, Goa, (represented by Her Power of Attorney holder Mrs. Prescilla Fernandes) …... Appellant V e r s u s 1. Mr. Antonio Francisca Dias (since deceased) Represented through his legal heirs a) Mr. Graciano Antonio Filomena Dias (son) b) Mrs. Luizinhoi Dias (daughter in law) Both r/o c/o Caitan A. D ' Silva, 2nd Hasanbad lane, Nani Bungalow, Room no. 1, Block No. A15, Santa Cruz, Bombay-54 c) Mr. Jose Norbert Dias (son) d) Mrs. Magdalena Dias (daughter in law) e) Mrs. Tita Leonidua Rodrigues (daughter) Mr. John Rodrigues (son in law) (Deceased) Both r/o c/o Bernadetta Rodrigues, Aframent Vaddy, Siolim, Bardez, Goa. f) (i) Mrs Tita Leonidue Rodrigues (wife) (Deleted), (ii) Mrs. Bernadeta Rodrigues (daughter) both Aframento Vaddy, Siolim, Bardez Goa. g) Mrs Effie Monica Fernandes (daughter) h) Mr. Anicaeto Maria Fernandes (son in law) 2nd Hasanbad, Room No. 1, Nani bungalow, Room No.1, Block No. A15, Santa Cruz, Bombay 54. i) Mrs. Maria Paula Fernandes (daughter) j) Mr. Xavier Richard Fernandes (son in law) Both r/o Noopur Phase II, B-3, IInd Floor, Flat No. 202, -2- Sheetal Nager, Mira Road (East) District Thane 401 107. 2. Mr. Joe Norbett Dias, r/o. H. No. 164, Siolim, Bardez-Goa. …... Respondents Mr. D. P. Bhise, Advocate for the Appellant. Mr. J. P. Mulgaonkar, Advocate for the Respondent nos. 1a, b, g, h, d CORAM: F. M. REIS, J. DATE : 25 th June, 2010. ORAL JUDGMENT Heard the learned Counsel for the Appellant and the Respondents. 2. This Second Appeal challenges the Judgment passed by the Courts below whereby the suit filed by the Appellants to restrain the Respondents by a permanent injunction from constructing the compound wall or obstructing, blocking, erecting any impediment or encroachment on the suit pathway or from causing or attempting to cause any further obstruction on the suit pathway, came to be dismissed. 3. It is the case of the Appellant that she is residing in a part of the house bearing no.165, situated in the property known as “Mando”, located at Wadi Aframent, Siolim, Bardez, Goa, surveyed under no. 347/0. It is further her contention that the Respondents are residing in a house situated in front of -3- the house of the Appellant and that there is only one easementary pathway situated towards the southern side of the house of the Respondents which leads to the main road from the Appellant's house. It is further her contention that she has been using the said pathway for last more than 30 years and that the land where the suit pathway is located belongs to all the co-owners and that the Appellant is one of the co-owner. It is further her contention that there is a slab over the drain towards the eastern side which is existing since the time the houses were constructed and that they have been repaired some ten years back and that the expenses thereof were shared by the Appellant and the Respondents. It is further the contention of the Appellant that the Respondents started abusing the Appellant and threatened to block the suit pathway and consequently the suit for permanent injunction came to be filed by the Appellant. 4. The Respondents filed their written statements disputing the claim of the Appellant. It is their case that the property of the Respondents and adjoining property of Joseph Fernandes and others, all surveyed under no. 347/0 are separate and distinct properties which were three separate aforamentos belonging to the Communidade of Assagao which were allotted by the said Communidade separately to Luis Manuel Mascarenhas, who is the ancestor of the Appellant. Custodio Manuel Dias, who is the ancestor of the Respondents and Joao Antonio Fernandes. The said suit plots were earlier surveyed under survey no. 129, sub-division no.1 in the Index of Lands in Form no. III of Siolim Village. The Respondents disputed the contention of the -4- Appellant of co-ownership and claimed that the Appellant has no right of any nature to the suit pathway. 5. The learned Trial Court after framing of issues and recording the evidence, dismissed the Suit by Judgment and Order dated 23.09.2002. While disposing of the said suit, the learned Judge came to the conclusion that the Appellant has failed to establish her right of way through the suit pathway. The learned Judge further came to the conclusion that the Appellant has failed to establish her claim of co-ownership over the suit pathway. While passing the said Judgment, the learned Judge has appreciated the evidence on record both documentary as well as oral and came to the conclusion that the claim of the Appellant that she has easementary right of necessity over the suit pathway has not been established as the Appellant has failed to show that the whole property was partitioned so as to claim an easementary right under the provision of Section 13 of the Easement Act 1882. The learned Judge further came to the conclusion that the Appellant has failed to establish that she was the co-owner of the suit pathway considering the evidence on record that the house of the Appellant was surrounded on all four sides by a compound wall. It is further held that by the side of the Plaintiff's and Defendants' house, there is a nallah and that a slab is put up across the nallah for going to the main road on the eastern side. The sketch at exhibit Pw.1/B also shows that on the eastern side of the property of the Plaintiff's house there is a nallah which was accessed to the main road by putting a slab across it on the eastern side. The sketch shows that there is no obstruction to pass over the eastern side nallah -5- from the Appellant's house except the compound wall constructed by the Appellant surrounding her plot. The learned Judge further held that on the eastern side the Appellant can easily make a way to go to the main road by crossing the nallah on the eastern side. Consequently, the learned Judge dismissed the suit filed by the Appellant. 6. The Appellant preferred an Appeal before the learned District Judge being Regular Civil Appeal no. 130/2002, which by Judgment and Decree dated 29.11.2006, came to be dismissed. The learned Appellate Judge after re-examining the evidence on record, came to the conclusion that the suit access does not belong in co-ownership to the Appellant. The learned Judge further held that a co-owner cannot obtain a right of way to prescription over her own property. The learned Judge further held that the Appellant's plot is adjoining the road and there is no partition or transfer of the property giving a right to claim a right of way of necessity. Consequently, the Appeal preferred by the Appellant came to be dismissed. 7. The Appellants have preferred the present Second Appeal challenging the said Judgment passed by the Courts below. The learned Counsel for the Appellant assailed the Judgment and Order passed by the Courts below and contended that the claim of the Appellant has not been properly considered inasmuch as the additional issue framed by the Trial Court was in view of the amendment carried out by the Respondents to the written statement which did not arise in the suit. He further contended that as -6- all the occupants of the holding were using the suit pathway including the Appellant, the co-ownership right had accrued to the Appellant in respect of the suit pathway. He further submitted that the Courts below have failed to appreciate the evidence on record and consequently the findings of fact arrived at by the Courts below are perverse and the material adduced by the Appellant has not at all been considered. 8. On the other hand, the learned Counsel appearing for the Respondents has supported the impugned Judgment and submitted that the case of the Appellant at Para 7 of the plaint was to the effect that he was the co-owner of the suit property. He further submitted that this contention came to be rejected by both the Courts below on the basis of the evidence and in a Second Appeal this Court cannot re-appreciate the findings to come to any contrary finding. The learned Counsel further submitted that as the Appellant herself was claiming right to the suit property, the question of claiming any easementary right does not arise at all. He further submitted that there is no substantial question of law which arises in the present Appeal which requires consideration and, as such, the Appeal deserves to be rejected. 9. Having heard the learned Counsel for the Appellant and the Respondents and on perusal of record, I find that both the Courts below, on the basis of the evidence on record, have come to the conclusion that the Appellant has failed to establish their claim of co-ownership of the suit pathway. The Courts below have considered the evidence of the Appellants in -7- the cross examination to the effect that four separate afaromentos were granted by the Communidade to different persons and that the house of the Appellant as well as one Joseph Fernandes were encircled by compound walls. The Courts below have come to the conclusion that the property of the Appellant is an independent property and, as such, the question of claiming any co-ownership right over the suit access does not arise at all. The Appellant has failed to establish as to how she could claim co-ownership rights over the property of the Respondents. In fact, the Appellant is not claiming any co-ownership right to any portion of the land except on the suit way as co- owner thereof. An easement is a right of user over the property of another. As such, the Appellate Court is justified in coming to the conclusion that the Appellant is not entitled for any claim of easement as the Appellant herself is claiming a right to such property. The question of claiming an easementary right under the provisions of Section 13 of the Easement Act 1882 does not arise at all. 10. A person claiming a right of way by a certain road as an easement of necessity on the ground that he has no other road from going out or coming to his property except that particular road, will fail in case the evidence discloses that he has an alternate access. In the present case, both the Courts below have found that the Appellant has a way to go to the main road on the eastern side. These concurrent findings of facts cannot be interfered with by this Court under Section 100 of the Civil Procedure Code. The learned Counsel for the Appellant has failed to demonstrate any -8- perversity in the said findings by the Courts below. 11. In view of the above, no substantial question of law arises in the present Appeal and hence, the Second Appeal stands rejected. F. M. REIS, J. arp/*