JUSTINIANO ANTAO Vs. BERNADETTE B PEREIRA

JUDGEMENT

(1.) This appeal is directed against the order passed by the single Judge of the High Court of Bombay, Panaji Bench, Goa in Second Appeal No.4 of 1995 on February 13, 1998 whereby learned single Judge has reversed the order passed by the first appellate Court.

(2.) Brief facts which are necessary for disposal of this appeal are that Smt. Bernadette B. Pereira filed a suit seeking declaration that she had acquired easementary right of access through the property of respondents, Shri Justiniano Antao, his wife Smt. Seaman Antao and Shri Diogo Antao (hereinafter referred to as the respondent-defendants) and for permanent injunction against the respondent-defendants for restraining them from obstructing, blocking, interfering with the motorable access.

(3.) The trial Court by its order dated February 26, 1991 decreed the suit of the plaintiff against the respondent-defendants holding that the plaintiff had right of motorable access to her house through the property of the respondent-defendants by way of easementary right through prescription. On appeal being filed before the District Court by the respondent-defendants, the judgment of the trial Court was reversed by the first appellate Court on two grounds, namely, that the plaintiff had failed to allege in the pleadings that the way in question was not being used as of right and since the way was not claimed as of right the relief in question could not be granted to the plaintiff in view of Section 15 of the Easements Act, 1882 which provided that easementary right must be claimed as of right. The second ground on which the findings were upset was that the plaintiffs property was bounded on two sides by road and it does not stand to reason that in such a state of affairs the plaintiff would pass through the property of the respondent-defendants in order to reach the same road which bounds the property of the plaintiff. Aggrieved against the said order the plaintiff filed a second appeal before the High Court of Bombay, Panaji Bench, Goa and the High Court reversed the finding of the first appellate Court and hence this appeal on grant of special leave.