SILABA D SOUZA Vs. BENEDITO GIRATUR D SOUZA

JUDGEMENT

(1.) This Second Appeal challenges the Judgment and Decree of the Lower Appellate Court in Regular Civil Appeal No. 115 of 1999 by which the Trial Court's Decree dated 11/10/1999 in a suit filed by the respondents in Special Civil Suit no. 163/1985/I came to be confirmed. It is common ground that the suit was filed by the respondents in the Court of Civil Judge, Senior Division at Margao on the basis that they are the owners in possession of a property more particularly described in paragraph 1 and that property is surveyed under Survey no. 575/39. The respondents/plaintiffs stated that they have their ancestral residential house in this property and the main entrance is towards the East. The property is fenced on all sides by rough stone wall in some places and barbed wire fence at other places and there is an opening on the Eastern side of the said property which is the entrance to the said property and the house.

(2.) On the Eastern side of the property there is the property of the Condado of Cuncolim, which is surveyed under survey no. 575/40, wherein the Appellants-Original defendants before me have their residential house.

(3.) What the plaintiffs have stated in the plaint is that they have the only access to the property and the residential house from the main road and that is through the property of Condado of Cuncolim, to which there was a three metres wide way. The access is depicted in the plan and then it is stated that the access is being used by the ancestors of the respondents for last more than 60 years and even the Sociedade has written letters to the Panchayat of Cuncolim as well as to the Mamlatdar of Salcete about the existence of the said access. The allegation is that the appellants/defendants are illegally trying to construct a compound wall in the said property of Condado and thereby obstructing the access to the said property of the plaintiffs/respondents and their residential house. It is stated that they brought material like stones and they are about to complete the work.