FRANCISQUINHA DAS MERCES Vs. CONFRARIAS DE SANTISSIMO SACRAMENTO

JUDGEMENT

(1.) Heard. Rule, made returnable forthwith. Taken up for final hearing by mutual consent of the parties.

(2.) Order dated 19.9.2009 passed by the learned CJSD, Mapusa in Special Civil Suit No.108/2005/A refusing amendment to the plaint finds challenge in this writ petition.

(3.) Perusal of the plaint, a copy of which is annexed to this petition at page No.24, reveals that the petitioner/ plaintiff has instituted the said suit for permanent injunction restraining the respondents/ defendants from carrying out any construction on the suit access and also for a declaration that the access referred to in the plaint is access of necessity and only access available to the plaintiff's property. It is the case of the petitioner/ plaintiff that the suit property admeasuring 891 square meters of the property surveyed under Survey No.77/1 Part situate Sirula Malim, Penha-De- Franca Village Panchayat was acquired on lease dated 13.10.1993 from the respondent /defendant No.2- Archdiocese of Goa and access to the said property from National Highway, Panaji-Mapusa lays through the portion of the lands marked in grey colour in the plan tendered with the deed of lease at Exh.A to the plaint. It appears that the petitioner after having lost in the battle to claim temporary injunction against the respondents in respect of the said access preferred an Appeal from Order No.90/2006 in this Court and thought it fit to withdraw the said appeal with liberty to amend the plaint in order to mould the reliefs for claiming right through property of the respondent No.1/ defendant under Article 2309 of Portuguese Civil Code and thereafter, seeks relief of temporary injunction in light of the amended plaint.