KESAR KASHINATH NAIK Vs. ASSISTANT ENGINEER

JUDGEMENT

(1.) 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 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 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 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.