=1= IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 47 OF 2009 AND APPEAL FROM ORDER NO. 48 OF 2009 1. Mr. Vitorino Dias, r/o H No. 423/1. Corpibhat Corlim, Dulapi Goa. 2. Mr. Francisco F. P. D'Souza, r/o Coropachebhat, Corlim, Dulapi, Goa. Through Constituted Power of Attorney Shri Godwin George Pereira D'Souza. 3. M/s Goan Bounty, A Partnership firm, Plot no. 51-B, Dulapi Corlim, Tiswadi, Goa 403110, Represented by its Managing Partner, Mr. Narasimha J. Poojary. ... Appellants. Verses 1. Shri John Lobo, Calwado, Corlim, Goa. 2. Shri Rozario Carvalho Belvista Ward, Corlim, Goa. 3. Shri Elias Silveira, Church Ward, Corlim, Goa. 4. Shri Inacio Lopes Calwado, Corlim, Goa. 5. Shri Jackie Silveira, Calwado, Corlim, Goa. 6. Confraria Nossa Senhora Penha de France, St. =2= John Facunda Church, Corlim, Goa, A body Corporate represented by its President Shri Rozario Carvalho. 7. Village Panchayat of Corlim, Tiswadi, Goa, through its Secretary. (The above are registered addresses of the parties). ... Respondents. Mr. M. S. Usgaonkar, Senior Advocate instructed by Mr. Valmiki Menezes, Advocate for the appellants. Shri Coelho Pereira, Senior Advocate for the respondents no. 1 to 6 (Caveator), instructed by Mr. Korgaonkar, Advocate for the respondents. Coram : A. H. Joshi, J. Reserved on: 6th August, 2009. Delivered on: 9th September, 2009 JUDGMENT These appeals are filed by unsuccessful plaintiffs. 2. Plaintiffs' application for temporary injunction is rejected. Application filed by the defendant Nos. 1 to 6 claiming injunction has been allowed, and the plaintiffs have been restrained from interfering in defendants' property bearing survey no. 51/2. Plaintiffs are before this Court in present =3= appeals against both these orders by above two appeal from orders. 3. Case proceeds on admitted facts as to location and identification of suit passage and survey numbers surrounding thereto. 4. There is no dispute as to the ownership rights of respective parties. Dispute is as to right of passage and access claimed by plaintiff and denied by the defendant Nos. 1 to 6. 5. There existed an old survey, in which a property was identified as survey no. 16. Outer boundaries of survey no. 16, prima facie, correspond when present cadastral plot sub division numbers 1- A, 1-B, 1-B-1, 1-B-2 and 1-B-3 of survey No. 51 are considered together. Survey No. 51/2 is abutting these foregoing sub-division/survey Nos. 51/1-B-1, 51/1-B-2 and 51/1-B-3. 6. It is an admitted fact that Panaji-Banastorim road, part of High way, which had a curve akin to rectangle, had got deflection making it a curvature. =4= The land through which said earlier rectangular part and new curved part of the said highway passes, is part and parcel of survey no. 51/2. 7. It is a common ground that:- (a) So long the highway had rectangular shape it was touching west side lateral of these group of pieces of lands i.e. 51/1. (b) The point where said highway had the rectangular turn, a lane is shown, which is described in old record as private road falling between present survey no.51/1-A and 60. After 90 degree angular turn said highway used to pass from southern lateral of present survey no.60 through residual survey no.51/2 from northern part thereof. (c) It has not come on record as to when and how said rectangular turn got the shape/deflection like a curved shape etc. and to whom land below the rectangular part of highway was surrendered. (d) Neither of the parties have brought on record as to what was the state as to existence of a road prior to making/emergence of the highway by bringing on record old village maps, surveys etc. 8. Due to division of plots no. 51/1 into about four plots now the plaintiffs have two access to the highway (which has received curved shape) =5= through said former rectangular part of earlier road/highway, which is part of survey no. 51/2. The dispute is as regards right of access to highway through survey no. 51/2 by owners of survey nos. 51/1 and 51/1-B-1. 9. Claiming the aforesaid right of way, the plaintiffs filed the suit being Special Civil Suit no. 63/2008/B, praying for decree of permanent injunction restraining the defendants no. 1 to 6, etc. from blocking their access through survey No. 51/2 to the highway, to their own lands. The terminology and narration contained in the plaint is in slight different wording, but what they actually want is as indicated through the foregoing description. 10. It is seen that the averments which are crucial are contained in paras 15 to 18 which are quoted below for ready reference. 15. The plaintiffs state that adjoining the property of the plaintiffs on the southern end there exists a property under survey no. 51/2 which is claimed to be owned by the defendants no. 6, a body corporate, on the basis of an entry in the Form I and XIV wherein the name of the defendant no. 6 is reflected in the occupants column. The =6= claim was made by letter dated 1.2.04. The said survey holding is bounded as follows: On the north by : Partly survey no. 31 and partly old village road. On the south by : National highway 4-A On the east by: Partly by property bearing survey no. 51/1- B-1 and partly by 51/1-B On the west by : National highway 4-A 16. the plaintiffs state that the aforesaid property surveyed under no. 51/2 is a municipal road as shown in the old cadastral survey plan of the property denominated as 'COROP'. The plaintiffs further states that portion of said suit property under survey no. 51/2 was utilized for the purpose of the national highway leading from Panaji to Banastarim Bridge. Plaintiffs rely upon the old cadastral survey plan. 17. The plaintiffs state that in the aforesaid property under survey no. 51/2 there is an access/road existing since time immemorial and which is used not only by the plaintiffs but also by the villagers and the residents of the locality. The said access is a U-shaped access/road commencing from the old village road at points P1 and P2 and proceeding therefrom through survey no. 51/2 between the points P3 and P4 and culminates on the national highway from Panaji-Ponda and better denominated in the survey plan at the points drawn and by red lines. The said access/road is hereinafter referred to as the suit access . The suit access/road has a width of 8 mts. On average and on the curves extends to 10 mts. And has a length of 40 mts. And is motorable including by trucks. =7= 18. The plaintiffs state that the plaintiff no. 1 along his southern boundary has a compound wall along with a gate therein which for better identification is marked as G-1 on the photographs annexed and also on the survey plan and which opens towards the said suit access. The plaintiff no. 1 regularly uses the said suit access for entry and exit into his property. The plaintiff no. 1's general provision store existing in his property identified with letter 'B' is accessed by the people of the locality by passing on the suit access day-in and day-out. The said shop is having an opening, which opens towards the said suit access. (Quoted from pages 35 to 37) 11. The case of the plaintiffs' plea as seen through from various averments contained in the plaint which are crucial to the pleading of right of easement by prescription . These averments are seen in paras 44, 45 and 46, and the cause of action is described in the plaint in para 52. Relevant paras are quoted below for ready reference at pages 44, 45 and 46. 44.the plaintiffs submit that the plaintiffs as owners of the land adjoining the suit access leading to the national highway have a right of access at every such point where their land adjoins the public street/suit access/ road. =8= 45. The plaintiffs submit that the plaintiff no. 2 is the original owner of the entire larger property known as COROPO surveyed under survey no. 51/1. The plaintiff no. 2 has been owning the said property for more than 60 years and has his old ancestral house, and a drinking water well in the said property. The property under survey no. 51/2 is shown as Estrada Municipal as seen in the old cadastral survey plan which means a municipal road and in the recent survey the same Estrada Municipal has been depicted as a road ending at survey no. 51/2 which appears contrary to the old cadastral survey plan. 46. the plaintiff submit that the plaintiffs and / or their predecessors in title have been using the suit access since time immemorial and in any event for the last more than 80 years from at least 1930 and are using the same openly, peaceably, continuously, without any interruption of whatsoever nature and to the continuous knowledge of the defendants no. 6 and / or their predecessors in title and all the defendants. 52. the plaintiffs submit that the cause of action against the defendants no. 1 to 5 arose when they interferes with the suit access on 3.2.08 in their individual capacity (in personam) and claiming as representatives of defendant no. 6, the cause of action for the relief of declaration against defendant no. 6 also arose on the same day when the defendants no. 1 to 5 on behalf of the defendant no. 6 began obstructing the plaintiffs suit access through survey no. 51/2 claiming ownership in defendant no. 6. The plaintiffs submit that the cause of action for filing the present suit once against arose on 13.7.08 when =9= the defendant dug the suit access and prevented the plaintiffs from its beneficial enjoyment and the cause of action is continuing in nature. The law of limitation therefore does not bar the suit. By abundant caution for the reasons given above this Honourable Court may be pleased be granted leave to the plaintiffs for joining causes of action against the different defendants in the present suit to avoid multiplicity of proceedings and as the cause of action arises from the same incident. (Quoted from paras 44, 45, 46 and 52 at pages 44, 45 and 46) 12. These averments contained in the plaint have been denied by defendant Nos. 1 to 6, averring that:- (a) The Existence of municipal road as shown in old cadastral plan is also denied. (b) The access through survey no. 51/2 from time immemorial is also denied. 13. Inspite of a categorical denial of existence of right/existence of way in some parts of written statement, the defendants 1 to 6 in para 18 an admission of existence of user of way and access to plaintiffs' plot through survey no.51/2 in an indirect but in specific words is seen in para 18 to =10= 21 and paras 40 and 45 thereof. These paras reads as follows:- 18. ......... As a fact there was a loose stone compound wall all along with said eastern boundary of the said property bearing survey no. 51/2, more particularly along the plot claimed by the plaintiffs no. 1 and 2. It is stated and submitted that there was a cross existing in the said plot, which always existed as a fact the said plots were in the precincts of the then Church of Santiago. In fact there was an opening of less than half metre in the compound wall of plot A claimed by the plaintiff no. 2 connecting the village road just above the dead end of it, for access for veneration of the said cross existing in the plot claimed by the plaintiff no. 2. The plaintiff no. 1 constructed in the said plot claimed by him a house illegally in part of the plot bearing survey no. 51/2-B after its purchase by him in the year 1991 and opened up the said compound wall further taking advantage of the fact that the said plot of the defendant no. 6 was far away from the precinct of the present church and started taking his car through the suit plot. The action of the plaintiffs no. 2 and 3 was in concert with the plaintiff no. 1 who had otherwise no right of access and in order to claim an access started taking their vehicles through the property of the defendant no. 6, to go to the existing old Banastarim road, without the consent of the defendants. As a fact, the defendants objected to the said act of trespass on the part of the plaintiffs and in the context, the plaintiff no. 3 addressed various =11= letters to the defendants, one of them being the letter dated 20.3.2004, admitted and acknowledged that the said plaintiff was trespassing through the defendants' property and subsequently in the letters which have been relied by the plaintiffs and tried to negotiate the purchase of the suit property with these defendant no. 6 and at one stage tries to retract from the negotiations by claiming that the defendants had no title to the said property. ....... 20. ..... The cross obviously is a cross meant for public veneration and has been in existence in the said plot claimed by the plaintiffs for a number of years. In fact, initially there was an opening in the compound wall of less than a metre and the people used the said access to go to the plot claimed by the plaintiffs and assemble there for litany prayers in front of the said cross. It is denied that worshipers of the village used the suit access and park their vehicles in the suit access and the open area adjoining thereto. It is denied that there is any access through these defendants' property. It is stated and submitted that as the property is open on three sides, except on its eastern boundary, where there was a compound wall, people have a free access to the said plot. It is stated however that it would not mean that the property of the defendants is 'no man's land' and there exists an access or a way through these defendants property. 21. ............ The said gate has been also opened illegally and unauthorizedly. The said persons are also illegally trespassing into the tip end of the defendants' property to go to the main road. =12= ( paras 18 to 21 of written statement are quoted from pages 98 to 99 and also from pages 102 and 103 of the paper book of appeal.) 40. With regards to contents of para 45 it is not admitted for want of knowledge that the plaintiff no. 2 is the owner of the larger property. It is also denied that the said property is known as COROPO . It is stated and submitted that the said property of the plaintiffs is known as Battacha Batt or Dulcinachem Batta . That the property originally bearing survey no. 51/1 did not belong solely to the plaintiff no. 2, that was ancestral property which was alloted in the Inventory proceeding no. 287/1942 and sub-divided into 3 plots, which were allotted to the aforesaid 3 brothers afore referred and the said three plots were culled out in such a manner that all the 3 plots have access to the main to the Banastarim road. It is denied that the plaintiff no. 2 has been owning the said property for more than 60 years as alleged. It is denied that the house existing in the said property is the ancestral house of the plaintiffs' family. It is stated and submitted that the parents of the plaintiff no. 2 along with family were residing at Vasco. The said house was always unoccupied, it is admitted that there is a drinking water well in the said property. It is denied that the property bearing survey no. 51/2 is shown as Estrada Municipal. The said property is shown as the property of the defendant no. 6. it is denied that the old cadastral survey shows the municipal road as alleged by the =13= plaintiffs which is false. The interpretation of the survey plan by the plaintiffs is false and motivated to suit their false claim. If the plaintiff meant to refer to the old plan, old plan has the cadasral survey no. 16, the same does not correlate to the property bearing survey no. 51/1 and that is not the property, either claimed by the plaintiff or of the defendant no. 6, a bare look at the said plan makes the said fact patent. The defendants state that the old survey looses its effect on promulgation of the new survey. The contents of para 45 are denied. 41. With regard to contents of para 46, it is denied that the plaintiffs and / or their predecessors-in-title have been using the suit access since time immemorial and in any event for the last more than 80 years from at least 1930 and are using the same openly, peaceably, continuously, without any interruption of whatsoever and to the continuous knowledge of the defendant no. 6 or their predecessors-in-title and all the defendants. It is stated and submitted that the access to the plaintiffs is as stated by the defendants hereinabove. (paras 40 and 41 of written statement are quote from pages 115 to 118 of paper book of appeal) 14. The defendants have, filed along with their written statement certain documents with a list copy whereof is at page 129. These documents are 12 in number. Map at page 134 and the copy of map at page =14= 64 filed by plaintiffs are one and the same. Defendants property is shown as sub-division no. 2 of survey no. 51. 15. The defendants have also placed on record opinion of surveyor which is at page 135 of the paper book. In the said opinion given by surveyor, the identification of respective properties disputed access/way is clearly admitted. The stand taken by defendants 1 to 6 in the written statement is totally contrary to surveyor's opinion annexed with defendants' document at page 135 of paper book. 4 th unnumbered para of this opinion is eloquent, which is quoted below for ready reference. As per the old survey plan of the plot no. 16, I identified that the plot no. 16 graphically corresponds to the new Cadastral survey plots bearing survey no. 51/1-B-2, 51/1-B-3, 51/1-B, 51/1-B-1 taken together. There is a road shown as the Municipal road on the east which connects a private lane of one Pedro Alcantra Periera. The said old municipal road is not shown on the new cadastral survey plan as the same is found amalgamated with the plot of the Confraria that is survey no. 51/2. Due to the 90 degree corner turn of the old municipal road the said public road was =15= diverted into the plot area of the Confraria and was made into a gradual turn and was connected to the old road. It is not known when this took place and whether the Confraria were compensated for the acquired land or were given in exchange the land occupied by the old road which is now found amalgamated in the said plot bearing new survey no. 51/2. (Quoted from page 135 of paper book of appeal.) 16. In the light of facts, namely: - (1) admitted access being in use since time prior to 1991 to the church located in survey no.51 as is seen in written statement; (2) location and existence of access described in surveyor's opinion; The questions which arise for consideration in this appeal are as follows:- 1. Do plaintiffs' have right and / or user of access through survey no. 52/2? 2. Whether the plaintiffs have, prima facie, made out the case of easement by prescription? 3. Has the defendant No. 6 prima facie proved to be in possession of the piece of land/plot survey No.51/2 through which alleged way is claimed by the plaintiffs without any right of access or interruption of the plaintiffs? =16= Discussion and Reasons 17. It is seen that the defendants have in very specific words averred that cadastral survey no. 16 does not co-relate to property bearing survey no. 51/1. Though, the suit is defended by the defendant Nos. 1 to 6 with catagoric denial, the said denial will have to be read in the light of admitted documents and documents relied upon by the defendants. 18. Maps on record which are at pages 64 and 65, relied upon by plaintiffs and map at page 131 along with surveyor's opinion at page 135 relied upon by defendants have to be read and appreciated together. 19. From record it is duly demonstrated that:- (a) There is municipal road titled as Estrada Municipal which is lateral to cadastral survey nos. 51/1-B-1 and 51/1-B lateral to west coming from south to north and then it turns towards =17= west which was formerly angle nearing 90 degrees, which has now got a curved alignment, which for all purposes touches or merges in the highway. (b) Old survey no. 16 resembles or is a part of or is a piece of land comprises of sub- divisions survey no. 51 may be except sub-division No. 2. (c) Though, the defendant Nos. 1 to 6 dispute the resemblance of maps mutualy relied, annexures to the written statement speaks contrary to what these defendants are urged. (d) Plaintiffs have sufficiently demonstrated from the said documents at page 135 and an admission contained in the written statement that there existed an access through the suit property to the Church which was located in old survey no. 16. (e) It is now apparent that the initial access met and touched the highway at said near 90 angle thereof and later on as then said rectangular corner of highway got deflected, the intervening piece of land of the defendant No. 6 part of survey =18= no. 51/2 continued to be in use as a public access. (f) The access which was very much in existence for long duration, was continued to be in use even after deflection of highway into curved shape. (g) It is seen from the admission contained in para 39 of written statement quoted above and is shown by underlining, that there existed access through survey No. 51/2 for very long time since existence of church in old survey No. 16. (h) It is not the plea of the defendant Nos. 1 to 6 that claim or use of way is a new development or demand or attempt by plaintiff since any definite number of years of recent past. (i) It is clearly seen from the admission of the defendant Nos. 1 to 6 that there existed an access directly to highway. (j) It is also apparent that highway was and is through the defendants' property. The extent of width of access i.e whether it was just a meter wide or wider needs to be adjudicated in the trial =19= of the suit. (k) What is alleged by the defendants is that existing narrow access which was about a meter wide, has been converted by the plaintiffs into a motorable road by the plaintiffs un-authorisedly. (l) It is not the case of defendants that the land which was merged into Estrada Municipal having 90 degree angle is released in favour, and put in possession of the defendants, after said highway was deflected and curvatured. (m) It was therefore, the turn of the defendant Nos. 1 to 6 to show as to how the right of way once in existence has extinguished which the defendant Nos. 1 to 6 have not been able to do. (n) Survey number 51/2 which is the defendants' property, itself being a sub division of original survey no.51, it by itself suggests unity of lands of plaintiffs and defendants, i.e. being part and parcel of one land old survey 16 and new survey 51. Therefore question of carrying out a right of access de-novo, does not arise.