RAMKRISHNA V USGAONKAR Vs. PANAJI MUNICIPAL COUNCIL

JUDGEMENT

(1.) THIS second appeal has been filed at the instance of the original plaintiff. The Regular Civil Suit No. 5/96/B filed by the plaintiff, came to be dismissed by the Civil Judge, Jr. Division, Panaji by Judgment and Decree dated 25/4/2002 and confirmed by the appellate Court by Judgment and Decree dated 20/11/2003, in Regular Civil Appeal No.89/2002. The appellant, therefore, assails the concur rent findings of fact arrived at by the two Courts below.

(2.) THE original appellant/plaintiff had filed a suit for declaration, permanent injunction and consequential reliefs to declare that the appellant has a right of access to enter the suit property through the western boundary of the respondent 's plot bearing Chalta No.27 of P.T. Sheet No.7 4 and restrain the respondents, their agents, servants, contractors, labourers or any other person or persons in any manner from interfering with the existing access to the suit property through eastern boundary, which access admeasures 8 metres and which had been in existence since time immemorial. The trial Judge, before whom the suit was tried, framed issues as to whether the plaintiff proves that he enjoys a motor able access through Chalta No.27 for last more than 60 years and does the plaintiff prove that this is the only access to go to his property. The trial Judge further framed issues as to whether the plaintiff proves that the defendant was constructing a compound wall around Chalta No.27 and whether the defendant proves that the plaintiff has an alternate access from the side of Sangam Lodge. The trial Court recorded a finding in the negative in respect of the first two issues, namely whether the plaintiff proves that he enjoys a motor able access and whether the plaintiff proves that it is the only access to go to his property. In respect of the third and fourth issues, namely whether it was proved that the defendant was constructing a compound wall and whether the defendant proved that the plaintiff had an alternate access, the trial Judge recorded a finding in the affirmative. On consideration of the evidence of the parties, the trial Judge dismissed the suit filed by the plaintiff.

(3.) IN the second appeal, the following substantial questions of law have been raised which are reproduced below on which reliance is placed by the learned Counsel for the appellant.