ANA COLACO Vs. THOMAS COLACO

JUDGEMENT

(1.) THE petitioner (plaintiff in the suit) had claimed in the suit filed by her that there existed traditional passage from her house through the property of respondent (defendant in the suit) to go to Chorao/bicholim road. The trial Court had granted injunction in favour of the petitioner, but the same was reversed by the learned Additional District Judge, Mapusa which is subject matter of challenge in this revision.

(2.) THE short point to be decided in this revision is prima facie existence of traditional access as claimed by the petitioner. Learned Advocate Shri N. Sardessai submitted before me that the respondent permanently resides in Bombay and comes to Goa only during vacation; that the injunction in favour of the petitioner is operative since 2-4-91 to date; that though admittedly no sketch of the traditional passage had been filed by the petitioner, yet the respondent did file sketch showing the traditional access claimed by the petitioner; that the trial Judge had inspected the site and on the basis of site inspection as well as photographs on record had come to the conclusion that prima facie there existed way from the balcony of the petitioner to Chorao/bicholim road and the Appellate Court was certainly not entitled to substitute its own view for the discretion exercised by the trial Court regarding prima facie existence of the traditional passage. He also pointed out that both the parties had filed their own affidavits only and no affidavits of independent persons were filed by the parties and that the Appellate Court has wrongly concluded that the petitioner had suppressed material facts relating to existence of other access to Chorao/pompurpa main road. He, therefore, contends that the interference by the Appellate Court was not based upon settled principles of law and as such the Appellate Courts order is liable to be set aside.

(3.) LEARNED Advocate Shri Lawande submitted before me that none of the ingredients which are necessary to establish easement as required under section 15 of the Easement Act, have been pleaded by the petitioner and in the absence of such pleadings no relief could have been granted to the petitioner. In this respect he relies upon a judgment of this Court in (Macario Antonio Francisco de Cunha and another v. Alex Fred DSouza and others) 1993 (1) Bom. C. R. 465 and particularly paras 6 and 15 of the said judgment. The next contention advanced by him is that no dimensions of the traditional passage have been given nor any sketch was filed by the petitioner and thirdly there has been suppression of facts which has been rightly appreciated by the Appellate Court. In the course of arguments Advocate Shri Lawande submitted that in case revision is allowed, liberty be given to the respondent to put a revolving gate near the Cross so that cattle do not enter, but human beings can pass on foot.