ROMEO M F AQUINAS Vs. FLORINA MOTHIAS

JUDGEMENT

(1.) THE plaintiffs challenge the dismissal of their suit by the First Appellate Court though they succeeded before the Trial Court.

(2.) THE suit is for injunction in respect of a 3' wide pathway running South to North all along touching the Western boundary of the respective mulgeni properties of both plaintiffs and defendants. The property belong to one John Joseph Britto on Warga right and the said John joseph Britto had granted the said property on Mulgeni to one Juvam menezes, son of Salvadore Menezes under a Mulgeni lease deed dated 12-6-1913. This Juvam died leaving a Will dated 7-4-1930 bequeathing his properties to his wife Seraphine Menezes. On 19-8-1935, she sold the northern portion of 25 cents of land to one Francis Pinto and that property is mentioned as Schedule 'b' in the plaint. The said vendor has given half right in the well situated in the common boundary and also provided for the purchaser a right of pathway of 3 width running South to North touching the Western boundary of 25 cents retained by the vendor. The pathway was intended for the movement of men and cattle to go to and fro. The said Pinto executed a deed of settlement in respect of 8 cents of land shown in 'c' Schedule to the plaint on his daughter nathalis Cutinha and the remaining 0. 17 cents to his son Lawrence pinto, which is shown in Schedule 'd' to the plaint. His daughter nathalis Cutinha was permitted to take water from the well situated in the property given to his son and she is also given 3' width pathway on the Western side of the portion of the property given to the son in continuation of 3' with pathway given by Seraphine Menezes on the land of 25 cents retained by her. The plaintiff claimed that from the time of nathalis Cutinha, she has been in possession and enjoyment of the said 'c' Schedule property making use of the property running along touching the Western boundary of Schedule 'd' and 'e' properties to go to and fro and also for the purpose of drawing water from the well situated at the common boundary of Schedule 'd' and 'e' properties. The 25 cents of land retained by the aforesaid Seraphine Menezes shown in Schedule 'e' to the plaint appears to have been sold in Court auction to one Cecy rogers under Sale Certificate dated 23-6-1975. The said Cecy in turn sold the same to the first defendant. The second defendant also has purchased 17 cents of land on 20-9-1976. Nathalia Cutinha sold her share to one Mrs. Mary Assumption Andrade, the mother of the plaintiffs under the Sale Deed dated 9-11-1978 and since then the plaintiffs along with his parents have been in possession and enjoyment of the same making use of 3' width pathway running along and touching the western boundary of the property. The purchase made by D. 1 and D. 2 are subject to the aforesaid right of pathway. The plaintiffs Schedule 'c' property is the dominant tenament and the defendants' Schedule 'd' and 'e' properties are servient tenaments. On the defendants attempting to block the pathway, the plaintiffs came forward with the present suit.

(3.) THE first defendant specifically contended that he has no intenti on to cause obstruction to the alleged user of 3' wide approach through the property of the defendant and the apprehension of the plaintiffs are unfounded. The second defendant also contended that she has not at all obstructed the enjoyment of 3' width pathway. On these admissions alone, the plaintiffs suit should have been decreed without embarking upon a trial.