ANTHONY F. FERNANDES Vs. MELCHOIR FERNANDES

JUDGEMENT

(1.) HEARD Shri C.A. Coutinho, the learned Counsel appearing for the appellants. The above appeal challenges the judgments passed by the Courts below whereby a claim of the appellants for access by prescription through the property of the respondents came to be rejected.

(2.) SHRI C.A. Coutinho, the learned Counsel appearing for the appellants has pointed out that the Courts below have erroneously come to the conclusion that there was no material adduced by the appellants to establish that they were using the right of access. The learned Counsel further pointed out that though originally the property belonging to the respective parties was one property, nevertheless, the same came to be partitioned somewhere in the year 1976 and that from the year 1976 up to the filing of the suit, the appellants were using the suit access as a matter of right. The disputed portion of the property which the appellants are claiming right of access is surveyed under no.100/1 of Cansaulim village. The learned Counsel further submitted that the learned Judge has erroneously failed to consider that there was enough material on record to establish that the appellants have established their rights of prescription over the disputed access. The learned Counsel further pointed out that before the filing of the suit no doubt the respondents have provided an alternative access through the property surveyed under 100/1 but however it is the contention of the learned Counsel that despite of providing such access the right of the appellants to claim an easementary right of access by prescription does not get affected. The learned Counsel further submitted that considering that the appellants have established that they were using the disputed access as of right and which has resulted into a proscriptive right to use such right of access, the learned Judge was not justified to dismiss the suit filed by the appellants. The learned Counsel has taken me through the material on record as well as the impugned judgments passed by the Courts below and pointed out that both the Courts below have arrived at perverse finding of fact to the effect that the appellants have failed to establish their right to use the access as of right. The learned Counsel, as such, submits that there are substantial questions of law which arise in the present appeal which requires consideration by this Court. In support of his submissions, the learned Counsel has relied upon the judgments of this Court passed in Second Appeal No.55/1995 dated 30/06/2011 in the case of Manikrao S/o. Narayanrao Bhoge and Ors. V/s. Shri Maheshkumar S/o. Bansilal Vyas and Shri Mahadeorao S/o. Nathuji Ugale.

(3.) APART from that it is not the contention of the appellants that they were only persons who were using the disputed access. This further discloses that the claim of the appellants that they were using the disputed access as a matter of right cannot be accepted. Both the Courts below upon appreciating the evidence on record have come to the conclusion that the appellants have failed to establish their claim that they were using the suit access as a matter of right. These concurrent findings of fact arrived at by both this Court cannot be reappreciated by this Court while exercising powers under Section of the Civil Procedure Code. Be that as it may, the learned appellate Court whilst discussing at para 31 has taken note of the fact that an alternative access has been provided by the respondents having a width of 5 metres and as such no inconvenience or irreparable injury would occasion to the appellants with regard to their access to the main road. There is no evidence on record produced by the appellants that such alternate access is inconvenient or not usable. In fact the lower appellate Court at paragraph 31 of the impugned judgment protected such access for the appellants.