MARINA FERNANDES Vs. AMBROSE ALMEIDA

JUDGEMENT

(1.) THE appellant/original plaintiff is assailing the concurrent findings recorded by both the Courts below. The plaintiff instituted a suit claiming a declaration of easement of way by prescription acquired by the plaintiff, her family members and the members of the public over the suit motor -able access. The plaintiff also claims her entitlement to use 3 metres wide motor -able access running through the property of the defendants bearing survey no.360/18 of Calangute village. A decree of injunction has been claimed restraining the defendants permanently from interfering with the use and enjoyment of the plaintiff, her family members and others in relation to the said motor -able access. The plaintiff is admittedly the owner of his house situated in property adjoining the property of defendants bearing survey no.360/18 of village Calangute. According to the plaintiff there is a traditional motor -able access connecting the house of the plaintiff to the main Mark Fernadnes Marg. The plaintiff claims that the said access traverses the property of the defendants diagonally. It is alleged that it was shifted towards the western side enclosed by the compound wall constructed by the defendants.

(2.) THE contentions raised in the plaint have been controverted by the defendants in the written statement. The defendants deny the right of the plaintiff in respect of the motor -able access through their property. The defendants deny entitlement of plaintiff to claim traditional or motor -able access through the property of the defendants and contend that the plaintiff has raised the claim with malafide intention to commit trespass over the property of the defendants. However, the defendants agree that the plaintiff is having access to his property through the property of the defendants and her user is restricted to a foot path. The contention of the plaintiff that there is motor -able access through the property of plaintiff has been specifically denied.

(3.) THE defendants have by way of a counter claim pleaded that the access available for the plaintiff passes through survey no.360/1. It is contented that prior to the construction of the compound wall by the defendants there existed a barbed wire fencing on the eastern, western and southern sides. Neighbours and others of the defendants had passage through survey no. 360/15 to reach the Mark Memorial Road and the plaintiff also uses the said access through survey nos. 361/2, 361/3 and 361/15. The defendants allege that the plaintiff is trying to interfere with their property without existence of any right. The defendants as such claimed an order of injunction against the plaintiff from carrying out construction of road through the suit property. It is also prayed by the defendants that the plaintiff be restrained from interfering in any manner whatsoever in the suit property except by way of user of foot -way or access to her residential property.