JOAO ANDRE DA COSTA Vs. QUERINO DA COSTA

JUDGEMENT

(1.) Heard Mr. Nitin Sardessai, learned Senior Advocate appearing for the Appellants and Mr. S. S. Kantak, learned Senior Advocate appearing for the Respondent no. 3( a) to (c).

(2.) The above Appeal came to be admitted on 24.06.2016, on the following substantial questions of law :

(3.) Briefly, the facts of the case are that the Appellants who are the plaintiffs in the suit, inter alia, pray to restrain the Respondents from interfering with the suit property on the ground that the Appellants were the exclusive owners of the property surveyed under no. 56/13 having purchased from the original defendant nos. 1 to 4 by Deed of Sale dated 10.03.1971. The original Defendants who are the Respondents herein filed their written statement disputing the claim put forward by the Appellants and inter alia contended that they are co-owners of the property surveyed under no. 56/13 along with the Appellants and also prayed that there is an easementary right of way through the suit property and, consequently, filed a counter claim for a declaration of such easementary right. It was also contended that the said Sale Deed dated 10.03.1971 is illegal and a fraud. After issues were framed and recording of evidence, by Judgment dated 04.02.2009 partly allowed the suit thereby the Appellants were declared to be the owners of the suit property i.e. surveyed under no. 56/13 but, however, restrained the Appellants' right to block the access claimed by the original defendants. Consequently, the Counter Claim was partly allowed and declared that the Respondent nos. 3 and 4 had a right of motorable access through the suit property. The claim of the Respondents that they were the co-owners of the suit property was expressly rejected. Being aggrieved by the said Judgment, the Appellants preferred an Appeal before the learned District Judge, South Goa, at Margao. By Judgment dated 30.06.2009, the Appeal came to be dismissed. Being aggrieved by the said Judgment, the Appellants filed a Second Appeal bearing no. 98/2009 before this Court which was partly allowed by Judgment dated 02.08.2013. It was held that the Courts below have failed to examine whether the ingredients necessary to claim a right of easement had been established or not. As such, the Judgment and Decree was set aside and the matter was remanded to the learned District Judge to decide the Appeal preferred by the Appellants afresh. Thereafter, an amendment application was filed by Respondent nos. 3 and 4 to amend the written statement and the Counter Claim, inter alia, contending that the usage of the access by the Respondent nos. 3 and 4 was as an easement as of right. The Application for amendment was rejected by the learned District Judge but, however, a Writ Petition was filed before this Court being Writ Petition no. 745 of 2013 which came to be allowed by Judgment dated 14.02.2014 and the amendment was allowed to be incorporated. The learned District Judge by Judgment dated 05.08.2014, dismissed the Appeal filed by the Appellants. Being aggrieved by the said Judgment, the Appellants have preferred the present Second Appeal.