IN THE HIGH COURT OF BOMBAY AT GOA, PANAJI FIRST APPEAL NO.195/2005 1. Smt. Kesar Kashinath Naik, W/o late Kashinath Naik, Major, housewife, R/o House no.514, Baagwada, Curhcorem-Goa. 2. Shri Manohar Kashinath Naik, Major, service. 3. Shri Manoj Kashinath Naik, Major, service, Both s/o Kashinath Naik and R/o House no.514, Baagwada, Curchorem Goa. … Appellants. V e r s u s 1. The Assistant Engineer, PWD, Bansai, Kakoda, Goa Water Department. 2. The Chief Secretary, Government of Goa, Secretariat, Panaji-Goa. 3. Mr. Yeshwant Shiva Naik, S/o Shiva Naik, Major, married, retired, R/o House No.512, Baagwada, Curchorem Goa. 4. Mr. Uday Manguesh Sinai Kudchadkar, 2 Major of age, R/o House.No. Not known, Shirfod, Cuchorem Goa. 5. Mr. Sudhakar Bhikaji Naik, Major of age, R/o House No., not known Shirfod, Curchorem Goa. 6. Mr. Dinkar Janardhan Kudchadkar, Major of age, R/o House No. not known, Bepquegal, Curchorem Goa. 7. Mr. Milind Vaman Sinai Kudchadkar, Major of age, R/o House no. not known, Shirfod, Curchorem Goa. 8. Mr. Shantesh Lavu Sinai Kudchadkar, Major of age, R/o House No. not known, Bansai, Kakoda-Goa. 9. Dr. Kusha Raghuvir Sinai Kudchadkar, Major of age, R/o House No. not known, Borda, Margao-Goa. 10. Mr. Uday Ganesh Sinai Kudchadkar, Major of age, R/o House No. not known, Bepquegal, Curchorem Goa. …. Respondents. 3 Mrs. A. Agni, Advocate for the Appellants. Mr. Amey Kakodkar, Advocate for the respondents no. 1 and 2. Mr. C.A. Coutinho, Advocate for the Respondent no. 3. None present for Respondents no. 4 to 10. CORAM: U. V. BAKRE, J. RESERVED ON: 25/11/2011 PRONOUNCED ON:2/12/2011. JUDGMENT: This is an appeal by the plaintiffs against dismissal of their Civil Suit No.38/2004 (New) or Regular Civil Suit No.24/03/A (Old), and contempt applications filed by them. The said suit was for declaration and mandatory injunction. 2. The parties shall be referred to in the manner as they appear in the cause title of the impugned Judgment. 3. The case of the plaintiffs, in short, is as follows: The plaintiff no.1 purchased a plot admeasuring 220 square metres from survey no. 8/3 of Curchorem village 4 by deed of sale dated 11/12/1995 which plot is part of the property known as “Cormolem Vorti Madacho Xiro.” Even prior to the execution of the said sale deed, the plaintiff no.1 and her family members were occupying their dwelling house situated in the said plot for the last more than 60 years. The access to the said property of the plaintiffs from the main road, Baagwadda, Curchorem to station, passes by the side of the compound wall of Tendulkar, thereafter by the side of the property of defendant no.3 and thereafter from the property of one Janardhan Kudchakar and others, which is the suit access. The suit access, passing from survey holdings no. 8/4 and 8/5 of Curchorem Village, is the only approach road for the plaintiffs as ingress and egress to their residential house and without the suit access, their plot is land locked. The property surveyed under nos. 8/2, 8/3, 8/4 and 8/5 of village Curchorem was common property of Kudchadkar family, which property was divided by oral partition without 5 maintaining proper access to the independent house-holders and therefore the access already in use by the plaintiffs and others continued to be used from the beginning and as such the suit access remained as the only access for the plaintiffs and others. The road shown at the extreme southern end of the plot of the plaintiffs is not existing as the same has collapsed on account of depth of about 10 metres near the said road at river level and it is not possible to carve out any new road from all three sides of the plaintiffs' plot, which position is prevailing for the last more than 50 years. The plaintiffs have been using the suit access having width of 2 metres for the last more than 20 years without any objection or interruption or obstruction from any person and as of right and thus they have acquired prescriptive right over the same. The defendant no.3 approached the defendants no. 1 and 2 to provide a sulabh toilet and on 15/3/2003, the third defendant started digging pits on the suit access for constructing sulabh toilet and bath room. The plaintiffs 6 initially complained to the municipality whereby construction was stopped. On 4/4/2003, the defendant no.3 once again commenced the construction and constructed a temporary structure as bathroom and dug pits for the toilet on the suit access. 4. Hence, the plaintiffs filed the said suit inter-alia with the following prayers: (a) It be declared that suit access is only access for the plaintiffs to ingress and egress the residential house of the plaintiffs as shown on the plan annexed to the sale deed dated 7/12/1995 registered under no.507 dated 11/12/95; (b) That defendant no.3 be restrained from undertaking any construction work or obstructing the suit access in any manner whatsoever; (c) That defendant no.1 be restrained from undertaking any construction of the sulabh toilet on 7 the suit access as shown in the plan annexed to the sale deed; (d) For mandatory injunction directing the defendant no.3 to remove the structure of palm leaves used for bathroom on the suit access and to restore the suit access in its original position. 5. By order dated 16/4/2004, this High Court had directed maintenance of status-quo qua the suit access. The plaintiffs as well as the defendant no.3 had filed contempt applications. The plaintiffs contended that defendant no.3 violated the order of the High Court by removing the old bath room and constructing bath room on the suit access and continuing with the construction of the toilet on the suit access. The defendant no.3 alleged that the plaintiffs violated the High Court order by illegally demolishing the bath room of the defendant no.3. 8 6. The plaintiffs, by way of amendment to the plaint, added all the said subsequent events to the pleadings and also added a prayer for directing the defendant no. 3 to remove all the structures and trench made on suit access during the pendency of the suit and to restore the suit access to its original position to ingress and egress residential house from the property of the defendant no. 3. 7. The defendants no. 1 and 2, in their written statement, alleged that the defendant no.3 had approached the respective municipality and after fulfilling all the requirements, the municipality had recommended the construction of sulabh toilet. 8. The defendant no.3, in his written statement, alleged as follows: There is no suit access as defined by the plaintiffs and that the road from the main road which enters by the 9 side of the wall of Tendulkar is being used by defendant no.3 and his family members exclusively for the last many years. The plaintiffs, in order to go to their house, have been using the access which passes in front of the house of one Dharmu Naik and also have been using the other access, but there is no access for the plaintiffs from the property of defendant no.3. The bath room has been existing at the same place since long. 9. The defendant no. 3 filed additional written statement thereby denying the averments made by the plaintiffs, by way of last amendment and regarding subsequent events, referred to in paragraph 5 above. . 10. Inquiry was held in the contempt applications. Both the parties led evidence. Both the parties could not prove their allegations. The learned trial Judge by order dated 22/12/2004, dismissed all the contempt applications. 10 11. The plaintiffs and the defendant no. 3 then led evidence in the suit. The plaintiffs examined the plaintiff no. 3 as PW-1, Civil Engineer, Shri Vilas Raikar as PW-2, and four more witnesses. The defendant no. 3 examined himself as DW-1 and his daughter-in-law, Smt Deepa, as DW-2. 12. The learned trial Court, while dismissing the plaintiffs' suit, has inter-alia held as follows: (i) That there was permissive use of the said access by plaintiffs and the same did not come within the the purview of 'acquisition by prescription'. (ii) That there is vague plea in the plaint about the easement of necessity and about oral partition and there is no sufficient evidence on record to prove easement of necessity. (iii) The defendant no. 3 constructed a temporary structure as a bathroom on the suit access and also dug 11 pits on the suit access for constructing sulabh toilet with the result that the plaintiffs are not able to use the suit access. (iv) The defendants have failed to prove that the suit is bad for non-joinder of necessary parties and mis-joinder of parties. (v) The defendant no. 3 has not proved that they have constructed the bathroom in front of their house about more than 25 years back. 13. In this appeal, the plaintiffs have challenged the Judgment and decree dated 29/6/2005 passed in the suit as also the said order dated 22/12/2004 passed in the contempt applications. The plaintiffs, while praying to set aside the said order on contempt applications, have also prayed to strike off the defence. 14. Heard arguments. Learned Advocate Mrs. A. 12 Agni argued on behalf of the plaintiffs whereas learned Advocate, Mr. C. A. Coutinho argued on behalf of defendant no. 3. Mr. Amey Kakodkar, the learned counsel for the defendants no. 1 and 2 stated that his parties would be bound by the decision of the Court. 15. Learned Advocate Mrs. Agni argued that the evidence on record sufficiently proves that the use of the suit access by the plaintiffs has been established to be “as of right” and that it is also established that there is no other access available to the plaintiffs to approach the main road through their plot and lastly the said user has been established to be over thirty years since prior to the filing of the suit. She, therefore, contended that the suit ought to have been decreed. The learned counsel for the plaintiffs has relied upon the following decisions: (i) Babli Krishna Vaigankar & anr. Vs. Laxman Sagun Vaigankar & anr, [2006 (5) Bom. C..R 277]; 13 (ii) Maniyan Krishnan and anr. Vs. Maniyan Nanukuttan, (AIR 1986 Kerala 75); and (iii) Hero Vinoth (minor) Vs. Seshammal, [(2006) AIR SCW 2833]. 16. As far as the challenge to the order on contempt applications, learned Advocate Mrs. Agni was not very keen. However, She wants this court to consider the evidence led in the contempt applications. 17. On the contrary, Shri Coutinho, the learned counsel for the defendant no. 3 argued that there are no required pleadings in the plaint for claiming easement of necessity and therefore, the suit is essentially based on the stand of easement by prescription, for which also there are no sufficient pleadings. He argued that there is no evidence regarding the alleged oral partition and even if it be there then also there is no evidence of user of the suit access,”as of right” for more than 20 years. As far as the plan 14 annexed to the sale deed dated 1/9/1995 of the plaintiffs, which shows the suit access, is concerned, Shri Coutinho argued that this sale deed/plan cannot bind the defendant no.3 and the sale deed of the defendant no. 3, which is of the year 1991, does not show the suit access. On the aspect of the easement of necessity, the learned counsel was of the view that there is no evidence to establish prior jointness of the ownership and of the plots. He relied upon the following citations: (i) Bachhaj Nahar Vs. Nilima Mandal and anr. [(2008) 17 S.C.C.491]. (ii) Ramchandra Trimbak Joshi Vs. Hari Martand Joshi,( AIR 1929 Bom. 144). (iii) Tukaram Rajaram Suple and Ors. Vs. Sonba Chindhu Mali,( AIR 1959 Bom. 63). (iv) Lambodar Panda and Ors. Vs. Ramesh Chandra Panda and Ors. (AIR 1958 15 Ori. 248). (v) Abdul Rashid and Ors. V/s. B. Braham Saran (AIR 1938 ALL 293). (vi) Macario Antonio Francisco de Cunha V/s. Alex Fred D'Souza [1993(1)Bom.C.R. 465]. (vii) Smt Usa rani Das V/s. Bhaktahari Mohanty and Ors. (AIR 1984 Ori. 97). (viii) Ibrahimkutty Koyakutty V/s. Abdul Rahumankunju Ibrahimkutty and Ors. (AIR 1993 Ker.91). (ix) Santosh Kumar Banerjee V/s. Krishna Kant Gupta and anr.(AIR 1985 Pat.124) 18. I have gone through the entire material on record in the light of the arguments advanced by both the parties. 16 19. Let us first consider whether the easement by prescription has been proved. 20. (A) In the case of “Bachhaj Nahar” (supra), relied upon by Shri Coutinho, it has been held that a court cannot assume or infer an easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence because there are various kinds of easements. It is also held that a right of easement can be declared only when the servient owner is a party to the suit. It has been further observed that in regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years(ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission 17 of the owner will be a licence and not an easement. (B) In the case of “Ramchandra Trimbak Joshi” (supra), relied upon by Shri Coutinho, the learned Advocate for defendant no.3, it is has been observed as follows: “In questions regarding a right of way, the Court should consider the character of the ground, the space for which the right is claimed, the relations between the parties and the circumstances under which the user took place to decide whether the user was “as of right”. (C) In the case of “Tukaram Rajaram Suple and Ors.” (supra) also relied upon by Mr. Coutinho, it has been held as follows: “ On the plaintiff's leading evidence to prove uninterrupted user of a right of way for more than twenty years, the Court cannot straightaway draw a presumption that the user is as of right under Section 15 of the Indian Easements Act, 1882. It is for the Court to consider whether a presumption can be 18 reasonably drawn looking to the circumstances of each case, such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the use has taken place. (D) In the case of “Lambodar Panda”(supra), in paragraph 6, it has been observed that there is no need of specific averment in the written statement of the defendants that the user of the pathway by the plaintiffs was a permissive user. In paragraph 8, it is observed that the authorities discussed clearly establish that the person claiming a right of way should prove that the user was as of right and that according to the conditions in India, the relationship of the parties and the circumstances of each particular case, there is a presumption that the user is permissive. 21. A combined reading of paragraph 4 of the plaint and paragraph 2 of the written statement of defendant no.3 19 clearly reveals the undisputed existence of the access, referred to by the plaintiffs, as the “suit access”. The defendant no.3, however says that the plaintiffs have never used the said road (suit access) as referred to in paragraph 4 of the plaint and that the said road is exclusively used by the defendant no.3 and his family members. Therefore, first of all, the existence and identification of the suit access cannot be in dispute. 22. Even otherwise, there is on record, the evidence of the Civil Engineer, Shri Vilas Raikar, PW.2 at Exhibit C- 71 and the plan drawn by him on 31/7/2004 and proved by him which is at Exhibit 73 showing the suit access, as described in the plaint, in yellow colour and the obstruction of the same by means of a structure, with red colour and another plan Exhibit 68, also drawn and proved by PW-2, in order to show that the structure shown in red colour in plan, Exhibit 73 was shifted to the place showing the structure in 20 green colour, in the plan, Exhibit 68. The existence of the suit access in yellow colour and the structure in red colour, as shown in the plan Exhibit 73, is not denied. There are also photographs (Exhibit 56-colly), produced by PW.1, who is plaintiff no.3, showing the suit access. PW2, Vilas Raikar saw the beaten marks having length of 33 metres and width of 1.8 metres which width, somewhere, was of 1.9 metres. 23. The learned trial judge has not held that there are no sufficient pleadings in the plaint for claiming the easement by prescription. In paragraphs 7, 8 and 9 of the plaint, there are required pleadings to make up for the claim of easement by prescription. The evidence produced by the plaintiffs on record through the plaintiff no. 3 and other witnesses establishes the user of the suit access by the plaintiffs for more than 30 years since prior to the filing of the suit. The learned trial judge has held that the user, though was for 21 more than 20 years, cannot be termed as “as of right”. 24. The question is whether the said user fulfills the ingredients of section 15 of the Indian Easements Act (said Act), to hold it as an easement by prescription. 25. Learned Advocate Shri C. A. Coutinho, on behalf of the defendant no. 3, has pointed out that in his cross- examination, PW-1 has stated as follows: “ I came to know from my parents that oral partition was done by Kudchadkar family about 20 years back, without maintaining proper access as stated in para 10 of my affidavit”. He therefore contended that the oral partition had taken place in or about 1985, since the deposition of PW-1 was recorded on 23/2/2005. He pointed out that the definition of “dwelling house” under the Goa Mundkars (Prevention from Eviction) Act, 1975 includes the customary easement which 22 the residents of the dwelling house have been enjoying for access to a public road or any well or any other place. According to the learned counsel, therefore, the user as “mundkars” should be taken as with the consent of the bhatkars due to which time of 20 years period, for the purpose of prescription, would start running from 1/9/1995, when the plaintiffs became owners or at the most from 1985 when the oral partition allegedly took place. He argued that since the suit is filed on 5/4/2003, in either case, the claim of easementary right by prescription is premature since 20 years period is not complete. The learned trial Judge in paragraph 8 of the impugned judgment has observed that in the sale deed dated 1/9/1995, by which the plaintiffs purchased their plot, it is clearly mentioned that in the purchased plot, late Kashinath Naik is already having his house and that the purchasers are the mundkars of the said dwelling house and that the vendor Vaikunth Kudchadar was the co-owner of the area over which the suit access is 23 alleged to have existed. The learned trial Judge has held that being mundkars and having their dwelling house in the plot which was purchased afterwards, the plaintiffs had been using the suit access not with the requisite animus but because they were mundkars or in other words, their user, though more than 20 years, cannot be termed, “as of right” because no animus was involved in their physical act because the user was with the consent/permission and sufferance of the vendor Vaikunth Kudchadkar and other co- owners. The learned trial Judge has held that such permissive use without animus was not as of right and hence does not come within the purview of acquisition by prescription. 26. With regard to the above, the contention of Mrs. Agni, the learned counsel for the plaintiffs, is that the suit access does not belong to her vendors( previous owners) and that 36 years prior to the sale deed dated 1/9/1995, the 24 property was partitioned and hence the plaintiffs are not claiming right as against their owners. As far as the statement of PW-1, made in his cross-examination and pointed out by the learned Advocate for the defendant no. 3, learned Mrs. Agni contended that what PW-1 wants to say is that he gained knowledge of the said oral partition, from his parents, about 20 years back. There is substance in the above contention of the learned counsel for the plaintiffs. 27. The learned trial Judge has lost sight of the fact that as on the date of the said sale deed i.e. on 1/9/1995, the vendors of the plaintiffs were not the co-owners of the plot through which the suit access passes. The plaintiff no.1 purchased the plot by the sale deed dated 1/9/1995, which is at Exhibit 69. The suit was filed by the plaintiffs on 5/4/2003. The sale deed Exhibit 69 mentions that the plaintiff no.1 was the mundkar of the vendors for a number of years. The sale deed Exhibit 69 further states that the 25 house situated in that plot was owned by the plaintiff no.1. Though the plaintiffs were staying in their dwelling house situated in the plot belonging to Vaikunth Sinai Kudchadker as mundkars, however, the suit access is not situated in the same plot. The sale deed (Exh. 69) states that the vendors acquired absolute title to the plot which is subject matter of the sale deed, as per the allotment made in oral partition held more than 36 years, prior to the date of the sale deed that is prior to 1/9/1995. This statement incorporated in the sale deed, Exhibit 69 is not specifically denied by the defendant no. 3. Be that as it may, the right persons to deny this fact were the defendants-Kudchadkars, who have not even filed any pleadings. When the sale deed produced by PW-1 himself says that the oral partition took place about more than 36 years back, there is no reason for him to say in the cross-examination that the oral partition took place about 20 years prior to the date of his deposition. It appears that by means of the said statement of PW-1 about oral 26 partition which has been pointed out by learned Advocate Shri Coutinho, PW-1 wanted to say that he learnt about the said oral partition from his parents about 20 years back, as has been contended by learned Advocate Mrs. Agni. May be the user of the suit access during the time when the entire property, including the plot purchased by the plaintiff no.1 and the plot of the defendant no. 3 over which the suit access passes, was a single joint unit, was as customary easement and thus permissive, being mundkars of co- owners, but that was more than 36 years prior to 1/9/1995. After the partition of the property, the user of the suit access by the plaintiffs cannot be in the capacity as mundkars since they were no more mundkars of the owners of the plots through which the suit access passes. The plaintiffs, after the partition of the property, became mundkars only of their vendors. This aspect is not considered by the learned trial Judge. 27 28. It was pointed out that PW-1, in his cross examination, has stated that he had never written to the owners of the land, upon which the suit access is existing, to allow them to use the suit access in writing, because the bhatkar never objected to their using the suit access from the beginning. It was further pointed out that PW-4,