-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 28 OF 2008 Juvenal Hermenegildo Braganza, son of Francisco Xavier Braganza, major in age, married, Bank employee, residing at St. Cruz, Goa. …... Appellant/ Original Plaintiff V e r s u s 1. Laximibai Pandurang Kamat Mamai, widow, major in age, widow landlady, residing at 31st Janeiro Road, Panaji, Goa. (Since deceased) through her legal heirs : (a) Vithal Pandurang Mamai Kamat, (since deceased represented through LR no. 1(b) (i) Mr. Sandesh Vithal Naik, Son of late Vithal Pandurang Kamat Mhamai, and his wife (ii) Mrs. Sidhu Sandesh Naik, R/o. House no. 126, Halliwaddo, Bardez, Goa. Residing at 31st Janeiro Road, Panaji, Goa. (iii)Mrs. Sushma P. Sinai Priolkar Daughter of late Vithal Pandurang Kamat Mhamai, and her husband. (iv) Mr. Prasad Sinai Priolkar, residing at Ponda, Goa. (b) Kishori Vithal Mamal Kamat, (c) Shripad Pandurang Mamai Kamat, (d) Manohar Pandurang Mamal Kamat, (e) Mrs. Sushil Naik, (f) Mr. Vishwanath Naik, (g) Mrs. Suman Raikar, (h) Mr. Vassant Raikar, (I) Mrs. Shalini Navelkar, (j) Mr. Vassant Navelkar, 2. Carlito Martins Joao, son of Piedade Joao, major in age, -2- residing at Lola Portugal, through his attorney Dominico Dias, residing at Bairo, Bondir, St. Cruz, Ilhas, Goa. 3. Mrs. Lilu Martinho Joao, major in age, housewife, residing at Lola Portugal, w/o. Defendant No. 2, through her attorney Dominico Dias, residing at Bairo, Bondir, St. Cruz, Ilhas, Goa. (All addresses of the parties are registered addresses ) …... Respondents/ Original Defendants Mr. A. F. Diniz, Advocate with Mr. I. Agha, Advocate for the Appellant. Mr. M. B. D' Costa, Senior Advocate with Mr. V. Rodrigues, Advocate for the Respondent nos. 2 and 3. Coram :- F. M. REIS, J Date : 15 th November, 2011. ORAL JUDGMENT Heard Shri A. F. Diniz, learned Counsel appearing for the Appellant and Shri M. B. D' Costa, learned Senior Counsel appearing for the Respondent nos. 2 and 3. 2. The above Appeal challenges the Judgments passed by the Courts below and whereby the suit filed by the Appellants claiming right of preemption as well as declaration, came to be dismissed. 3. The Appeal has been admitted by Order dated 17.02.2010, on the -3- following substantial questions of law : (a) Whether the Courts below erred in law in not addressing to the main point for consideration, i.e. interpretation of Article 2309 of the Civil Code according to which the relief is to be granted in favour of landlocked property, i.e. which has no communication to the road ? (b) Whether the Courts below erred in law in not considering that as per the body of Article 2309 of the Civil Code, when the access is granted, compensation is to be payable to the owner of adjacent property from which the access is to be carved out, and that such obligation ceases to exist whenever preemption is decreed ? 4. At the time of the hearing, Shri Diniz, learned Counsel appearing for the Appellant has pressed for additional substantial question of law, which reads as under :- (i) Whether the Courts below have misconstrued the expression "predio encravado" under Article 2309 of the Portuguese Civil Code wrongly confusing the right under the said article with an easementary right, and/or their finding that the appellant's property was not landlocked on account of an alleged way on its western side through another property, is perverse ? 5. The suit came to be filed by the Appellant on the ground that he is the -4- owner in possession of a property known as “Almachi Xir” which is surveyed under no. 25/4 of Merces Village wherein they have a residential house and that his access is through the property surveyed under no. 25/5 which earlier belonged to the Respondent no.1. According to the Appellant, he has a right to preemption in respect of the transfer of a plot by Sale Deed executed in favour of the Respondent no.2 by the Respondent no.1 dated 15.01.1987 as he had a right of access through the portion of the property sold pursuant to the said Sale Deed. The Respondents disputed the claim of the Appellant and pointed out that the Appellant has no right at all over the Sale Deed plot and it was further their contention that there was no right of access used by the Appellant through the Sale Deed plot as according to the Respondents, the access to the property of the Appellant was on the western side of the property through the property surveyed under no. 25/3 and thereafter to some properties of other owners. It was further their case that as the Appellant has no easementary right over the suit plot, the question of claiming any right of preemption over the property purchased by the Respondents would not arise at all. The learned Judge by Judgment and Decree dated 26.11.2001, dismissed the suit filed by the Appellant but, however, reserved a right of access to the extent of 1.5 metres on the northern side of the plot purchased by the Respondents. Being aggrieved by the said Judgment, the Appellant preferred an Appeal before the learned Addl. District Judge, Panaji, being Regular Civil Appeal No. 161/2001. By the Judgment and Decree dated 11.09.2007, the learned Lower Appellate Court dismissed the Appeal filed by the Appellant. 6. Being aggrieved by the said Judgments, the Appellant has preferred the present Second Appeal. -5- 7. Shri A. F. Diniz, the learned Counsel appearing for the Appellant, has assailed the impugned Judgments and pointed out that the Lower Appellate Court has totally misconstrued the evidence on record and has come to an erroneous conclusion that the Appellant has failed to establish their right of preemption over the said Sale Deed plot. Learned Counsel has further taken me through the impugned Judgment and pointed out that as per the claim of the Appellant, the right of preemption was claimed under the provisions of Article 2309 of the Portuguese Civil Code while the Lower Appellate Court whilst passing the impugned Judgment has dealt with the provisions of Article 1566 of the Portuguese Civil Code which was not at all the case put forward by the Appellant to claim his right of preemption. The learned Counsel further took me through the impugned Judgment and pointed out that the Lower Appellate Court whilst passing the impugned Judgment has proceeded on an assumption that the claim of the Appellant was under the provisions of Section 15 of the Indian Easement Act and/or easementary right by prescription when according to the learned Counsel, it was not the case of the Appellant that they were claiming such rights under the said provisions of law. Learned Counsel further pointed out that the claim of the Appellant was that the property belonging to the Appellant was landlocked and, as such, considering that they had a right of access to go to the main road through the sale deed plot, the Appellant had the right to claim preemption in respect of the Sale Deed Plot. The learned Counsel has further taken me through the impugned Judgment as well as the evidence on record and pointed out that the Courts below have erroneously come to the conclusion that there is alternate access available to the Appellant when, on the contrary, the deposition of Pw.1 transcribed by the Lower Appellate -6- Court in the impugned Judgment disclose that there was no admission on the part of the Pw.1 to the effect that they had any alternate pathway to go to the said road. Learned Counsel further pointed out that Pw.1 had only admitted that there was a lane on the western side which was located at a distance of 40 metres from the land belonging to the Appellant and there was no evidence on record to suggest that such land was touching the property of the Appellant and, as such, the findings of the Courts below to the effect that the Appellant had an alternate way of access are perverse being on non-application of mind to the material on record produced by the Appellant. Learned Counsel further pointed out that though the Courts below have found that the Appellant had an alternate way of access, nevertheless, there was no specific findings of the Courts below to demonstrate the actual position of such access from the main road to the property of the Appellant on the western side. The learned Counsel further pointed out that the Lower Appellate Court being the last fact finding Court, ought to have scrutinized every piece of evidence adduced by the Appellant to consider whether the case of the Appellant has been established or not. Learned Counsel as such submits that non- consideration of vital pieces of evidence on record itself vitiates the findings of the Lower Appellate Court that the Appellant had an alternate access to go to the main road. As such, the learned Counsel submitted that the substantial questions of law as framed by this Court ought to have been decided in favour of the Appellant. 8. On the other hand, Shri M. B. D' Costa, learned Senior Counsel, has disputed the contention of the learned Counsel appearing for the Respondents. It is the submission of the learned Senior Counsel that unless and until the Appellant has established a right of easement through the property of the Respondents -7- surveyed under no. 25/5, the question of claiming any right of preemption under Article 2309 of the Portuguese Civil Code does not arise at all. Learned Senior Counsel has taken me through the provisions of Article 2309 of the Portuguese Civil Code and pointed out that unless and until such right has been established by the Appellant, the question of claiming such right is totally misplaced. Learned Senior Counsel further pointed out that the evidence on record establishes that the Appellant had an alternate way of access and the Courts below have concurrently come to such conclusion and, as such, the question of any interference on any such concurrent finding of fact, does not arise at all. The learned Senior Counsel further submitted that the Trial Court found that a right of access having a width of five metres has been reserved to the northern side of the suit plot and, as such, the question of Appellant claiming that the property of the Appellant is landlocked, does not arise at all. He further pointed out that the access of the Appellant has not been established and as such the question of claiming any right of preemption over the Sale Deed plot purchased by the Respondents would not arise. Learned Senior Counsel has taken me through the impugned Judgment as well as the findings of the Courts below and pointed out that the Lower Appellate Court has rightly appreciated the evidence on record and come to the conclusion that the property of the Appellant is not landlocked. Learned Senior Counsel further pointed out that considering the material on record as well as the findings on record, the question of any interference of this Court under Section 100 of the Civil Procedure Code, would not arise. Learned Senior Counsel further submits that the substantial question of law framed by this Court deserves to be decided in favour of the Respondents. -8- 9. Dealing with the first two substantial questions of law framed by this Court, whether the Courts below have addressed the claim of the Appellant for preemption under Article 2309 of the Portuguese Civil Code, I find on perusal of the Judgment passed by the Lower Appellate Court that it has dealt with Article 1566 of the Portuguese Civil Code to consider the claim of the Appellant. The question of considering the claim of the Appellant under provisions of Article 1566 of the Portuguese Civil Code is misplaced as it was not the case of the Appellant that he was claiming a right of preemption on the basis that he is a co-owner of the Sale Deed plot. As such, it is evident that the Lower Appellate Court has misdirected itself in considering the Article 1566, when the claim of the Appellant was under Article 2309 of the Portuguese Civil Code. No doubt, the Respondents have disputed the said contention raised by the Appellant. But, however, whether the Appellants are entitled to claim such a right of preemption under the provisions of Article 2309 of the Portuguese Civil Code, is a matter which has to be considered by the Lower Appellate Court on the basis of the evidence on record. Non consideration of the relevant provisions of law invoked by the Appellant would itself vitiate the impugned Judgment passed by the Lower Appellate Court. As such, it would be appropriate that the Lower Appellate Court ought to consider the matter afresh after hearing the parties and appreciating the material on record and ascertain as to whether the Appellant is entitled to the right of preemption as claimed by him under Article 2309 of the Portuguese Civil Code. The first two substantial questions of law are answered accordingly. 10. With regard to the findings of the Courts below with regard to the availability of an alternate access to go to the main road, I find that the Lower -9- Appellate Court has at para 9 of the impugned Judgment, transcribed a portion of the deposition of Pw.1 on the basis of which the Lower Appellate Court has come to the conclusion that the Appellants have an alternate access. On perusal of the said portion of the deposition, I find that prima facie, the said finding about availability of an alternate access to the Appellants to go to the main road, is not justified. 11. Dealing with the third substantial question of law and considering that the matter is going to be remanded for fresh decision on merits, both the learned Counsel have pointed out that no findings be given to that effect and issue be left open for decision by the Lower Appellate Court. As such, no findings are given by this Court on the said substantial question of law at this stage. 12. In view of the above, I pass the following : ORDER (1) The Appeal is partly allowed. (2) The impugned Judgment passed by the Lower Appellate Court dated 11.09.2007 is quashed and set aside. (3) Regular Civil Appeal No. 161/2001 is restored to the file of the learned Adhoc District Judge, Panaji. (4) The learned Adhoc District Judge is directed to decide the said Appeal afresh after hearing both the parties in the light of the observations made hereinabove in accordance with law. (5) All contentions of the parties on merits are left open. (6) The learned District Judge shall not be influenced by any -10- findings herein whilst deciding the matter afresh and shall re- appreciate the evidence on record on its own merits. (7) Parties are directed to appear before the Lower Appellate Court on 12.12.2011 at 2.30 p.m., (8) The Lower Appellate Court to decide the matter as expeditiously as possible and in any event, preferably within six month. F .M. REIS, J. arp/*