IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 101 OF 2007 SMT. FRANCISQUINHA FERNANDES ... Appellant Versus SHRI LORENCINHO M. FERNANDES ... Respondent Mr.M.S.Usgaonkar,Adv. with Adv.Sudesh Usgaokar for the appellant. Mr.S.D.Lotlikar, Sr.Adv. with Ms.Jimi Mohn, Adv. for the respondent. Coram:- C. L. PANGARKAR, J. Date:- 30th January, 2009 P.C. 1. Heard the learned counsel for the appellant and the respondent. 2. This second appeal has been preferred by the original plaintiff. 3. The plaintiff instituted a suit claiming injunction against the defendant restraining the defendant from making use of a strip of land, which falls in between the two plots purchased by the plaintiff. It is the contention of the plaintiff that the defendant has no right to make use of the said strip and therefore, he should be prevented. 4. The defendant resisted the suit by contending that this strip of land between the two plots, which are described as plot No.B and C, was left by the original owner as an access to the plot of the defendant of which, according to the defendant, he is owner. It is also his contention that he has been using the said access for more than 100 years and at least from the date he constructed the house. 5. The learned judge of the trial court after recording the evidence found that the plaintiff is the owner of the two plots namely B and C. There is a strip of land between two. The defendant had failed to prove that there was no access to his plot and it was held that the defendant had partly proved that he has been using the strip for a period of more than 27 years. Since the learned judge came to this conclusion, the learned judge dismissed the suit of the plaintiff. 6. The plaintiff preferred an appeal before the District Judge. The Additional District Judge, who heard the appeal, dismissed it. Being aggrieved by that finding of the appellate court, this second appeal has been preferred. 7. The learned counsel for the appellant submits before me that the learned judge of the trial court in fact erred in dismissing the suit when she found that there is an access available to the defendant from the other side. It was also contended that the learned judge could not have dismissed the suit simply because there was no proper prayer made by the plaintiff in the plaint. It was submitted that the relief could have been moulded by the learned judge of the trial court. He submitted that this could not be a ground for dismissal of the suit. 8. The learned counsel for the respondent submits that in fact the suit of the plaintiff could have been thrown out at the thresthold itself. According to him, when the suit was instituted the plaintfif was not the owner of the strip of the land and therefore, had no right to obstruct the defendant and institute the suit or prevent the defendant from entering into the suit property. 9. After having gone through written statement, it appears that the defendant did plead that this strip of land was left open by the original owner of the property for the purpose of an access. This fact is also evident from the sale-deed executed in favour of the plaintiff. The sale-deed in favour of the plaintiff clearly indicates that the land in between plot Nos. B and C is kept open as an access. 10. The learned counsel for the appellant submits before me that the observations of the learned judge of the trial court that this access, which was kept open was kept for the use of the defndant is merely an inference and therefore, the finding is wrong. On the other hand, the learned counsel for the respondent submits that if the document is read as a whole, the inference that is drawn by the learned civil judge cannot be said to be baseless. 11. After having considered the contents of the documents, I find that the learned judge of the trial court did not commit any error in infering that this access, which is mentioned to be existing in between the two plots, could not be for the use of the owners of plots no. B and C but could be for the use of owner of plot which is lying to the West of the suit property. Ultimately the document has to be interpreted and inferences have to be drawn. Drawing of such inference cannot be said to be perverse at all. The finding to that effect, therefore, to my mind is not perverse. The contention of the learned counsel for the respondent that the plaintiff did not amend the plaint and did not plead that he has purchased the strip of land, is in fact enough to negative any of the claim of the plaintiff. I find substance in the contention. When the plaintiff has purchased the property subsequent to the institution of the suit, the plaintiff could have amended the plaint. The suit having not been amended, there is no pleading of the plaintiff that he is the owner of the suit land. The evidence in that regard has to be completely ignored for want of pleadings. The trial court has given detailed reasons with regard to the user of the said access by the defendant for the period of more than 27 years and that finding has been upheld by the appellate court. Although the reasons recorded by the appellate court is not so convincing but the fact remains that the appellate court has confirmed the finding recorded by the trial court. All these questions raised are questions of fact. No question of law is involved in the matter. The appeal is dismised. C. L. PANGARKAR, J. PZC