SHABBIR KHAN Vs. KRISHNA BABUSSO NAIK

JUDGEMENT

(1.) THE respondents No. 1 and 2 (hereinafter referred as plaintiffs) had filed a suit against the appellants (hereinafter referred as defendants No. 14 to 17) and against the present respondents No. 3 to 15 (hereinafter referred as defendants No. 1 to 13) for declaration that the only access of the plaintiffs to the public road is through Plot No. 5 (which is surveyed under No. 110 sub-division 4) of property Gorbatta and which further passes through property Ubodando and property Oilem Morod in the part which belongs to the plaintiffs. The plaintiffs seek right of preference and pre-emption in respect of the said Plot No. 5, Surveyed under No. 110/4 on payment of the price of Rs. 40,000/- which is paid by defendants No. 14 to 17 due to purchase of the said Plot No. 5 from defendants No. 1 to 13.

(2.) THE plaintiffs case, in brief, is that the property Gorbatta was divided by Deed dated 25-4-1916 into 5 plots and plots No. 1 to 4 belonged to the plaintiffs out of Survey No. 110. Plot No. 5 which is the suit plot which also falls under Survey No. 110 belongs to the defendants. The plaintiffs case is that they are using the said suit Plot No. 5 belonging to the defendants as access in order to reach their other part of the property Ubodando and Oilem Morod and from there to the public road. The plaintiffs claimed that the said access through the said Plot No. 5 was the only access they had in order to go to their property Ubodando and Oilem Morod and from there to the public road and this access has been used by them for over 60 years. On 17th August, 1981 the defendants No. 1 to 13 submitted for registration Sale Deed of suit Plot No. 5 under Survey No. 110/4 together with the drain under Survey No. 110/3 in favour of defendants No. 14 to 17. Defendant No. 14 tried to obstruct the access through the said suit Plot No. 5 but did not succeed. The plaintiffs claimed that their property is enclaved and access to the public road passes through the suit Plot No. 5, to which the plaintiffs had right of preference and pre-emption in respect of suit Plot No. 5. According to the plaintiffs, they came to know of the Sale Deed on 20-11-1981 when defendant No. 14 had tried to obstruct them from using the access by constructing stone obstruction on the access as a result of which the plaintiffs after making efforts found out on 28th January that suit plot had been sold by defendants No. 1 to 13 to defendants No. 14 to 17 for a sum of Rs. 40,000/ -. Hence the suit in question was filed.

(3.) ON the other hand, defendants No. 1 to 7 and 14 to 17 who filed their written statement have taken the stand that the plaintiffs have direct access to the road and do not have to pass through the suit property belonging to defendants No. 14 to 17; the plaintiffs had never used the suit Plot No. 5 as access to the public road; that defendant No. 14 used to pluck coconuts and other fruits in the presence of the plaintiffs and their family members; that on two occasions surveyor and advocate visited the suit Plot No. 5 for the purpose of measurements and putting the boundary stones which happened about eight months prior to the Sale Deed after which the defendants had raised two huts in pursuance of the agreement of sale.