KARL FERNANDES Vs. REGINALDO T C DSOUZA

JUDGEMENT

(1.) THE appellant (plaintiff) has filed a suit for declaration, preemption and injunction. THE appellant also sought temporary injunction against respondents Nos. 1 and 2 (defendants Nos. 1 and 2 in the suit) seeking to restrain them from raising any construction or doing any activity connected thereto like dumping material, excavating in the suit property, blocking the passage of the plaintiff through the suit property.

(2.) THE appellant's case, in brief, is that the property "quedalo" under Survey No.215/2 of village Calangute admeasuring 850 sq. metres, which belongs to him and respondents Nos. 5 to 9 (defendants Nos. 5 to 9 in the suit), is bounded on the south by property under Survey No.215/5, which admeasures 1625 sq. metres. THE said property on the south is divided into two plots, namely, plot 'a' and plot 'b'. Plot 'a' is touching appellant's property and plot 'b' lies on the south of plot 'a'. Plot 'a' belongs to respondents Nos. 1 and 2, which is the suit property involved in this case. Plot 'b' belongs to respondents Nos. 3 and 4 (defendants Nos. 3 and 4 in the suit ). Thus, the suit property, namely, plot 'a' is sandwiched between the appellant's property and plot 'b' of respondents Nos. 3 and 4.A public way passes through plot 'b'. According to the appellant, his property is landlocked and is at a distance of 400 metres from the main road. THE appellant claims that he and his family members have been passing through the suit property and using the same as access to the public way, which passes through plot 'b' and connects to the main road. It is further contended that the said access through the suit property was not obstructed any time. In June 1993, respondent No.1 came to the suit property and started taking measurements. Smt. Catarina Fernandes, power of attorney of the appellant, who lives in the neighbourhood informed the said fact to the appellant. On enquiries made by the appellant with the Office of the Sub-Registrar, Mapusa, it was learnt that the suit property, which originally belonged to Smt. Odelia D'souza and Shri Anthony Gomes, was sold to respondent No.1 vide Sale Deed dated 2-1-1988 and respondents Nos. 1 and 2 desired to raise construction in the suit property and thereby blocked the free access of the appellant, which will result in irreparable loss to him. THE appellant's property being landlocked, the appellant claims right to the said access through the suit proeprty on payment of compensation, in view of Article 2309 of Codigo Civil. THE appellant also seeks to enforce the right of preemption in respect of sale of the suit property in terms of same Article 2309 of Codigo Civil. THE appellant claims that the original owner of the suit property did not give any notice of sale and the appellant can exercise right of preemption within six months of knowledge of sale as per Article 1566 of Codigo Civil. THE appellant has expressed his readiness and willingness to pay the sale price in order to exercise the right of preemption. Accordingly, the appellant seeks declaration that his property under Survey No.215/2 is landlocked; that he along with respondents Nos. 5 to 9 are entitled to have right of way through the suit property upon payment of compensation at the rate of Rs. 100 per square metre and that they are also entitled to exercise the right of preemption.

(3.) THE appellant had sought temporary injunction in this Appeal seeking restraint on construction or from dumping any material, excavation of the suit property or blocking the passage of the appellant to the suit property. By order dated 22-4-1994, this Court had directed the respondents Nos. 1 and 2 to give an undertaking that the construction sought to be raised shall be removed in case the appellant succeeds in the suit. THEre is nothing on record to show whether any such undertaking was furnished and no further order has been passed in Civil Application No.102 of 1994.