U.V. Bakre, J.
The above Second Appeal is filed by the plaintiffs of Regular Civil Suit No. 397/88/Jr.
2. The plaintiffs had filed the said Suit for permanent injunction restraining the defendants, their agents, servants and/or any other persons acting on their behalf, from interfering in any manner with the suit access.
3. Case of the plaintiffs, in short, was as follows:-
They are occupying a house as mundkars situated in the suit property bearing survey no. 229/25 of Calangute Village, for more than 50 years. The suit property is land locked and on the southern side of the same there is a property managed and looked after by the defendants, beyond which there exists a public road. The plaintiffs were always using an access having width of about 3 metres leading from the public road to the suit property, through this property of the defendants since the time they and their family members started occupying the house in the suit property. The said property of the defendants bears survey no. 229/33 and the suit access is being used as motorable access since time immemorial, openly, peacefully and without any interference from anybody and that it is the only access available to them to go to the public road. The suit access is also a traditional access and as a right of necessity and customary easement for them. In the month of August, 1998, defendants brought two trucks load of mud in their property and two days thereafter they planted coconut saplings in order to obstruct the suit access. Hence the suit.
4. By way of Written Statement, the defendants alleged as follows:
The plaintiffs were always using the access existing on the western side of the suit property to come to the road existing on the southern side of the property. The plaintiffs were also using an access existing on the eastern side of the suit property which leads to village Arpora. Besides the above, the properties around the suit property are open and the respondent can use the access available to them on the eastern side and western side of the property. The road existing on the southern side of the property in possession of the defendants was originally a Nallah and has been converted by Village Panchayat into a road about four to five years back. The property of the plaintiffs is not land-locked and there is no right of way of necessity or customary easement available to the plaintiffs, through the property in possession of the defendants. After the order dated 31/03/1989 in the application for temporary injunction as per the terms agreed by way of compromise, the defendants have enclosed their remaining property by erecting fencing. They have also constructed soak pit and septic tank in the area now alleged and claimed as access by the plaintiffs. The property on the western side of the property of the defendants is a vacant land and plaintiffs are using the same as their access and only the small portion on the Northern corner of their property is used by the plaintiffs as walking access. The plaintiffs have no right to claim any access motorable or otherwise through the property of the defendants.
5. The plaintiffs examined plaintiff No.1(a), Umesh Pednekar as PW1; One Shashikala Patil as PW2; Narayan R. Nagvenkar as PW3 and Ashok Verlekar as PW4. Defendants examined defendant no.1(a), Annie Coelho as DW1; one Lourdes Rodrigues as DW2; Clothil Braganza as DW3; and Mrs. Ana Maria D'Souza as DW4.
6. Upon analysis of the entire evidence on record the learned Civil Judge Junior Division, Mapusa (trial Court) held that the plaintiffs have proved that the suit property is landlocked and that the plaintiffs have right of way through the suit access only as walking access. The trial Court had partly decreed the suit. The defendants were restrained from interfering with part of the suit access passing through property bearing survey no. 229/33 which had been provided by the defendants to the plaintiffs pursuant to order dated 31/03/1989 passed in the application for temporary injunction.
7. The defendants filed Regular Civil Appeal no. 14/2003, against the judgment and decree of the trial Court and succeeded in the same. The learned Additional District Judge (II), Panaji (first Appellate Court) held that the plaintiffs have not proved that the suit access is the only access for them to reach the public road or that it is a traditional access for them to go to the public road or that it is an easement of necessity or a customary easement. The first Appellate Court also held that the plaintiffs could not prove that they have right of way through the suit access by way of prescription. Therefore, the appeal was allowed and the Judgment and decree passed by the trial Court was quashed and set aside.
8. It is against the Judgment and Decree of the first Appellate Court that the plaintiffs have filed this Second Appeal which has been admitted on the following substantial questions of law namely:
i) Whether, the possibility of the Appellants being able to go to the public road by an alternate access, warranted the rejection of the appellants' claim to the suit access, which they were actually using for the purpose of gaining access to the public road?
ii) Whether, without reaching a conclusion or finding that the Appellants were not using the suit access, but some other access to reach the public road, the First Appellate Court could have dismissed the Suit of the Appellants and reversed the decree of the trial Court, restraining interference of the Appellants with the suit access?
iii) Whether, the First Appellate Court has misdirected itself in law, in ignoring the admission made on behalf of the Appellants in their additional written statement, that the Appellants were using a small portion of their land as walking access, while arriving at a finding that the Appellants have failed to establish their claim to the access?
iv) Whether, in order to succeed in getting a decree for permanent injunction to restrain interference with the access which the Appellants were actually using, it was incumbent upon them to establish that, that was only access available to them?
v) Whether, the claim of the Appellants to the suit access could be rejected on the ground that the Appellants had claimed a right to the same alternatively as an access of necessity, traditional access/ customary easement or easement by prescription?
vi) Whether the claim of the Appellants to the suit access could have been rejected on the ground that the Appellants have not used the expression 'as of right' while pleading the existence of suit access and its use for more than fifty years prior to the institution of the Suit?
vii) Whether, the First Appellate Court had erred for not looking to the substance of the pleadings, rather than its form while concluding that a case of easement was not properly pleaded?
9. In this Second Appeal, the defendants have filed an application that is Misc. Civil Application No. 290/2012 under the Order XLII Rule 1 read with Order XLI Rule 27 of the Code of Civil Procedure for leave to produce the following documents by way of additional evidence:
a) The Deed of Sale dated 04/04/2007;
b) The Resolution of the Village Panchayat dated 19/08/2009; and
c) The Construction License dated 18/05/2009.
10. The plaintiffs have filed reply to this application and in the reply they have prayed that in the event the application filed by the defendants is granted, leave be granted to the plaintiffs to produce the following documents in rebuttal:
i) Letter dated 27/01/1995 from the Village Panchayat of Calangute to the applicant no. 2;
ii) The License dated 29/03/1995 issued to the applicant no. 2 by Village Panchayat of Calangute;
iii) The plan for construction, approved by the Village Panchayat of Calangute, under the aforementioned
construction license dated 29/03/1995;
iv) The completion certificate granted by the Assistant Engineer, Public Works Department dated 09/05/1995;
v) The plaint in Special Civil Suit No. 65/09/C, pending in the Court of the Civil Judge, “C” Court at Mapusa, alongwith a copy of the Summons issued by the said Court to the plaintiffs.
11. The defendants have filed affidavit in rejoinder to the reply filed by the plaintiffs alleging that the plaintiffs cannot produce additional documents in an application filed by the defendants under Order XLI Rule 27 of the C.P.C..
12. Mr. Lotlikar, learned Senior Advocate on behalf of the plaintiffs, at the out set, made it clear that the plaintiffs are not claiming the suit access by way of easement of necessity under Section 13 of the Easement Act or as a traditional access or a customary access. He submitted that the plaintiffs claim the suit access by way of easement of prescription. He invited my attention to paragraph 1 of the plaint wherein it has been pleaded that there exists a house of the plaintiffs in the suit property and that the plaintiffs are occupying the same as Mundkars for more than 50 years. He further pointed out that in paragraph 4 of the plaint it is pleaded that the suit access has been used by the plaintiffs and family members since the time the plaintiffs started occupying the said house and that the suit access has been used by the plaintiffs and family members openly, peacefully and without any interference from anybody. He therefore contended that there is a clear pleading to the effect that the suit access has been used by the plaintiffs and family members openly, peacefully and without interference for the last more than 50 years. He invited my attention to paragraph 13 of the judgment of the trial Court where it has been observed that the plaint when read as a whole clearly shows that the plaintiff is claiming a right of way through the property surveyed under survey no. 229/33, as of right, although he has not used the words “as of right”. He pointed out that the learned trial Court has observed that it is common knowledge that the same meaning can be expressed in different words and that the plaintiff has no where pleaded that his use of the suit way was permissible. Learned Counsel also pointed out the trial Court has held that since the existence of the access is proved it can reasonably be presumed that the suit access was used for more than 20 years, though it is proved to be only a walking access. According to the learned senior counsel appearing for the plaintiffs, therefore, the plaintiffs have proved prescriptive right to the suit access at least as walking access. He, thus, submitted that the judgment and order of the trial Court ought not to have been reversed by the first Appellate Court. He contended that the first Appellate Court has only considered whether the plaintiffs have alternate accesses which was not at all necessary or relevant to the case of prescription set out by the plaintiffs.
13. Insofar as substantial question at serial no. (i) is concerned, learned counsel for the plaintiffs argued that since the plaintiffs are claiming the suit access by way of easement of prescription, the question of possibility of the plaintiffs being able to go to the public road by an alternate access does not arise and therefore the same cannot warrant the rejection of the plaintiff's claim to the suit access. With regard to the substantial question at serial no. (ii), the learned counsel for the plaintiffs submitted that the first Appellate Court has no where held that the plaintiffs were not using the suit access and therefore the first Appellate Court could not have reversed the decree of the trial Court. He invited my attention to the additional written statement filed by the defendants wherein they have admitted that the plaintiffs were using a small portion of their land as a walking access. According to the learned counsel the learned First Appellate has misdirected itself in law in ignoring the said admission made on behalf of the defendants. He pointed out that the trial Court had conducted site inspection at the time of considering the application for temporary injunction and site inspection report was prepared and even some compromise was recorded. He submitted that the learned trial Court has mentioned in paragraph 35 of the judgment that the suit access could be identified with reference to order dated 31/03/1989 in temporary injunction application being no. CMA/30/88 and that this order is an admitted document as it has been admitted by the defendants in their additional written statement. He further pointed out that the trial Court has observed that the defendants have provided this access on the western and northern side of property surveyed under survey no. 229/33 and that PW3 has deposed that this is the same access which existed right from the beginning. The learned Counsel submitted that the plaintiffs had relied upon the judgment of the Madhya Pradesh High Court, in the case of “Rajadhiraj Industries (P) Ltd. Vs Nanhelal Bagbel and 4 others”, reported in 1986(1) Current Civil cases, 653, before the first appellate Court, wherein it has been held that the site inspection report made by a judge forms part of the record and it can be taken into account while pronouncing the judgment. He further pointed out that the trial Court has held that if this pathway which is a walking pathway is blocked, the suit property would become land locked and the defendants must be prevented from doing so. He therefore argued that there is ample evidence to prove the existence of the suit access to the extent of a walking pathway and its use for more than 20 years since prior to the filing of the suit and therefore the impugned judgment and decree of the first Appellate Court is liable to be quashed and set aside and the judgment and decree of the trial Court is liable to be restored.
14. Insofar as the Misc. Application for production of additional documents is concerned, the learned Senior counsel appearing for the plaintiffs argued that the documents sought to be produced on record have all come into existence subsequently and if the said documents are considered along with the additional documents sought to be produced by the plaintiffs, it would be found that the said documents do not advance the case of the defendants. He therefore contended that Miscellaneous Application No. 290/12 is liable to be dismissed.
15. Per contra, Mr. S. S. Kantak, learned senior advocate appearing for the defendants submitted that since the plaintiffs have now restricted their claim to the easement by prescription, he would not argue on the other aspects of easement by necessity, traditional or customary easement, etc.. He argued that in order to claim an easement by prescription, it was necessary to specify the exact ingress and egress of the portion of the property of the defendants, used as access. He further contended that for a period 19 years and 364 days, the use would be trespass and at the end of 20 years, the user has to get a declaration of easement of prescription which otherwise remains as an inchoate right. Mr. S. S. Kantak, learned Senior counsel appearing for the defendants read out the provision of Section 15 of the Easements Act and submitted that there has to be a public road in existence for a period of 20 years and the existence of the access to go to that public road. He pointed out from the written statement of the defendants that the alleged public road, on the southern side, was a nallah and the road was constructed by the Village Panchayat only about 4 to 5 years prior to the filing of the written statement. He submitted that the written statement was filed on 24/11/1998 which means that the road was constructed in or about the year 1983-84. He then invited my attention to the deposition of DW1 wherein she has stated that the road was constructed on half portion of the nallah in the year 1985 and there is no denial to this. He further pointed out that PW1 himself in his cross-examination has admitted that there was drain converted into road about 16 years back. He therefore submitted that 20 years of uninterrupted use to go to the public road cannot at all be there since no public road was existing for such a period. The learned counsel appearing on behalf of the defendants therefore argued that no case of easement of prescription has been made out. The learned counsel further contended that the averment in the additional written statement regarding the small walking access kept by the defendants was only regarding the stop gap arrangement made by the defendants till the final disposal of the suit in terms of compromise arrived at and that the same cannot prove the existence of the suit access, as of right. He further pointed out that the alleged walking access mentioned in the said site inspection report was as per the position existing on the day of site inspection and it cannot be a position which was for more than 20 years. The learned counsel for the defendants submitted that the learned trial Judge has presumed that the suit access was used for more than 20 years merely because the existence of the access is proved as a walking access. He argued that there is no evidence on record to prove the existence of the access for more than 20 years. He argued that there is no pleading in the plaint and evidence to the effect that the suit access is being used “as of right” which is the prime requirement of section 15 of the Easements Act.
16. With regard to the Miscellaneous Civil Application No. 290 of 2012 is concerned, the learned counsel for the defendants argued that the plaintiffs cannot by way of reply produce additional documents and that the plaintiffs, if they wanted to produce additional documents, ought to have filed an independent application under Order XLI Rule 27 of C.P.C. He further submitted that the documents produced by the defendants have come into existence after the impugned judgment and decree passed by the first Appellate Court and therefore they were not available when the Suit and the First Appeal were decided. He further submitted that the said documents sought to be produced by the defendants reveal that the plaintiffs have purchased the property bearing survey no. 229/31 which property is on the southern side of their property and that between 229/31 and the road there is a property bearing survey no. 229/32. He further contended that it is the case of the defendants that the property bearing survey nos. 229/31 and 229/32 are open and vacant lands and that the plaintiffs have access to their land through the said properties. The learned counsel further pointed out that as per the resolution passed by the Village Panchayat, the plaintiffs have three metres wide tar road on the northern side of their property and also have exclusive access from the main road through the property bearing survey nos. 229/31 and 229/32. He, therefore, argued that the documents sought to be produced by the defendants are relevant and therefore the defendants to be allowed to produce them. He further contended that the said documents duly prove that the plaintiffs have an alternate access without using the property of the defendants. He therefore prayed that the Second Appeal be dismissed.
17. The learned senior counsel appearing for the defendants, in support of his contentions with regard to the easement by prescription, has relied upon following judgments:
(a) Macario Antonio Francisco De … Vs Alex Fred D'Souza and Ors. [ 1993 (1) Bom CR 465]
(b) Justiniano Antao and Others Vs Bernadette B. Pereira (Smt). [(2005) 1 SCC 471]
(c) Abdul Raheman and another Vs Mulchand. [AIR 1928 Nagpur 91 (1)]
He has also relied upon following judgments on the scope of interference under section 100 of C. P. C. (a) Municipal Committee, Hoshiarpur Vs Punjab State Electricity Board and Others [(2010) 13 SCC 216]
(b) Gurudev Kaur and others Vs Kaki and others. [(2007) 1 SCC 546]
18. I have carefully gone through the record and proceedings in the light of the arguments advanced by the learned counsel for both the parties.
19. The Miscellaneous Civil Application No. 290/2012, for leave to produce additional documents, has been filed by the defendants in order to show that the plaintiffs have an access other than the suit access. However, now since the learned counsel for the plaintiffs has made it clear that the plaintiffs are not claiming any easement of necessity or any traditional or customary easement and that the plaintiffs are claiming the suit access, by way of an easement of prescription, the question whether plaintiffs have any alternate access does not arise and the question is only whether the suit access exists and whether it is proved to be an easement by prescription. Therefore the documents sought to be produced by the defendants do not have any relevance to the question involved in the present appeal. The plaintiffs, by way of reply, have sought leave to produce documents in the event this court allows the application filed by the defendants. In other words, since the documents sought to produced by the defendants are not relevant, the documents sought to be produced by the plaintiffs are also not relevant. Therefore, without going into the merits of the application, I hold that the documents sought to be produced by both the parties, at this stage, are not relevant. The Misc. Civil Application No. 290/2012 deserves to be dismissed.
20. Insofar as the substantial questions at serial nos. (i) and (ii) are concerned since the plaintiffs have now restricted their claim to the suit access only by way of an easement of prescription, the question of possibility of the plaintiffs being able to go to the public road by an alternate access, does not arise. The question of said possibility would have arisen only if the plaintiffs wanted to maintain their claim to the suit access by way of easement of necessity, etc.. Therefore, the substantial questions at serial nos. (i) and (ii) are not relevant.
21. In the additional written statement filed by the defendants they have pleaded that the plaintiffs have no right to get any access through the property of the defendants. It is further alleged that the property of the plaintiffs is not landlocked and there is no access by necessity and customary easement to which the plaintiffs are entitled. It is further alleged that the plaintiffs are not entitled for any declaration that they have any right to easement created upon the access road and the suit area as provided under Article 2309(1) of the Portuguese Civil Code. It is also alleged that the plaintiffs have no easementary right of way and customary right of easement to have motorable road through the suit access. What has been stated about the walking access, in the said additional written statement is that the same is a temporary stop gap arrangement that was made on account of the order dated 31/03/1989 passed by the trial Court. In paragraph 2 of the said additional written statement the defendants have specifically averred that after the order dated 31/03/1989 as per the terms agreed in the said compromise they have enclosed their remaining property by erecting fencing and also constructed soak pit and septic tank in the area now alleged and claimed as access by the plaintiffs. It is further averred that the property on the western side of the property of the defendant is a vacant land and the plaintiff is using the said property as his access and only the small portion of the northern corner of the property of the defendant is used by the plaintiffs as a walking access. Thus the said small portion of the northern corner of the property of the defendants, which otherwise is not the suit access claimed by the plaintiffs, is allowed to be used as walking access only till the final disposal of the suit in view of the terms agreed and in view of the order dated 31/03/1989 passed in the temporary injunction application. Therefore, it cannot be said that the first Appellate Court has misdirected itself in law in ignoring the admission made on behalf of the defendants in their additional written statement. The substantial question no. (iii) therefore gets answered against the plaintiffs.
22. Since the plaintiffs are not claiming any easement of necessity or a traditional access or a customary easement, the substantial questions at serial nos. (iv) and (v) do not arise.
23. In paragraph 4 of the written statement, the defendants have stated that the road existing on the southern side of the property in possession of the defendants was originally a nallah and has been converted by the Village Panchayat into a road about 4 to 6 years back. This written statement was filed on 24/11/1988. Thus, according to the defendants the road on the southern side of the property in possession of the defendants was constructed in the year 1983 or 1984. PW 1, the plaintiff no.1(a), in his cross-examination, has admitted that towards the southern side of plaintiffs' and defendants' house, there was a drain which was converted about 16 years back into a road by a Village Panchayat. PW1 has further admitted that prior to 16 years there was no road on the southern side. In his deposition, DW1, the defendant 1(a) has deposed that on the southern side of her property, there exists a Panchayat road which was constructed in the year 1985 and that earlier it was a nallah but half portion of the nallah was converted into a road and remaining portion of the nallah is still existing there. In the cross-examination of DW1, it is not denied that the road was constructed in the half of the nallah in the year 1985. On the contrary it has been suggested to DW1 that the road constructed in half portion of nallah is not having the length of 100 metres but it has a length of 300 metres approximately.
24. From the above, it is clear that even if it is taken for granted that the plaintiffs have been using the access from the property of the defendants to go to the said Panchayat road situated on the southern side of the property, the said user can only be from the time of coming into existence of the said road which was somewhere in the year 1984-85. The suit was filed by the plaintiff on 27/09/1988. Thus, the alleged continuous, peaceful and open use was only for few years since prior to the filing of the suit which is less than even 10 years. Therefore, the plaintiff is not entitled to claim the suit access as an easement by prescription.
25. In the case of “Macario Antonio Francisco De ….. ”(supra), the learned Single Judge of this court has referred to the case of “Siti Kanta Pal and another v/s. Radha Gobinda Sen and others” and “Harisadha De and others V/s. Radhika Prasad Pandit and others”, wherein it has been laid down, with reference to Section 15 of the Easements Act, that long user does not prove enjoyment as of right though an enjoyment as of right cannot be inferred as a matter of course from a finding only or for that matter long user. The learned Single Judge has observed that Section 15 of the Easements Act makes it amply clear that to acquire an easement by prescription in respect of right of way it must not only be peacefully and openly enjoyed but as an easement and as of right without interruption for 20 years.
26. In the case of “Justiniano Antao and others”(supra), it has been held by the Apex Court that in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years and there should be categorical pleadings that since what date to which date one has easement access for the last 20 years and in order to establish the right of prescription to the detriment of the other party, one has to offer specific pleadings and categorical evidence.
27. In the case of “Abdul Raheman and another”(supra), it has been held that the party has no cause of complaint if his neighbour withdrew the support of his own wall from under the plaintiff's modern superstructure before the user had ripened into a prescriptive right.
28. A perusal of the plaint reveals that the plaintiff has not identified and described the suit access in the manner it was necessary. The point of ingress and egress; length and width of the suit access and exact location thereon has not been stated nor has been shown by way of sketch. It has been alleged that the suit access is the only access available to the plaintiff to go to the public road and that there is no other access. It is further alleged that the suit access is a traditional access. It is also stated that the suit access is a customary access. It is further alleged that the property of the plaintiffs is landlocked and that the plaintiffs have right to have an access as provided under Article 2309(1) of the Portuguese Civil Code. But no prayer in respect of such a right has been made. Lastly, it has been claimed that the suit access has been used by them for the last 50 years openly, peacefully and without interference from any one. However, there is no pleading that the suit access has been so used “as of right”. Part of section 15 of the Easements Act reads:- “..... and where a right of way or easement has been peaceably and openly enjoyed by any persons claiming title therein as an easement as and of right without interruption for 20 years.” In view of the above, I am of the view that the First Appellate Court cannot be said to have erred in holding that a case of easement was not properly pleaded in the plaint. The substantial question at serial no.7 is therefore answered against the plaintiffs.
29. In view of the above, the substantial questions at serial nos. (vi) and (vii) get answered against the plaintiff.
30. In view of the discussion supra, there is no merit in the second appeal. No interference is therefore called for with the impugned judgment and decree dated 08/08/2003 passed by the learned first Appellate Court.
31. In the result, the appeal and the Misc. Civil Application are dismissed, with no order as to costs.