ANTHONY F FERNANDES Vs. MELCHIOR FERNANDES

JUDGEMENT

(1.) HEARD Shri M. B. D'costa, learned Senior Counsel on behalf of the Appellants who were the Plaintiffs in R. C. S. No. 11/1999/c. None present on behalf of the Respondents. The Appellants are the Plaintiffs who had filed a suit claiming a traditional access for having used it over 90 years and with a further allegation that the same was blocked by the defendants. The learned trial Court came to the conclusion that there was no such access in existence as claimed by the Plaintiffs nor the same was blocked.

(2.) THE Plaintiffs preferred an appeal to the District Court being R. C. A. No. 116/2004. The finding given by the learned trial Court that there was no access or that it was not blocked has been reversed by the learned first appellate Court without giving any reason whatsoever. It was necessary for the learned first appellate Court to re-assess the evidence produced and come to a contrary conclusion which has not been done at all. The Judgment of the first appellate Court, therefore, deserves to be set aside. If there was no access as claimed by the Plaintiffs no further question would arise in the suit but in case there was an access the next question which was required to be addressed was whether the Defendants could have closed the same by giving an alternate access which was less convenient than the one earlier used.

(3.) NEEDLESS to observe that this controversy was required to be addressed by the learned first appellate Court and since that has not been done in my view, this is a fit case for remand. The learned first appellate Court is hereby required to hear both the parties and decide the Plaintiffs appeal de novo. If the finding given by the learned trial Court is to be reversed then the learned first appellate Court is required to give reasons in support of the same. The Plaintiffs are required to remain present before the learned first appellate Court on 31st instant at 10. 00 a. m. Since the Respondents are absent before this Court the learned first appellate Court to issue a notice to them. I have no hesitation in my mind that the learned first appellate Court shall dispose off the First Appeal as expeditiously as possible. Therefore, the Judgment of the learned first appellate Court deserves to be set aside.