A challenge is thrown to the dismissal of Regular Civil Suit No.681/2000/II (new) i.e. Special Civil Suit No.333/1996/II (old) and grant of counterclaim therein by the IInd Additional Civil Judge, S.D. at Margao as well as to its endorsement in Regular Civil Appeal No.157/2001/II by the Additional District Judge, South Goa at Margao.

2. The appellants/ plaintiffs instituted the aforesaid suit in November, 1996 against the respondents herein for permanent injunction restraining the respondents from entering and interfering in the property bearing Survey No.39/40 admeasuring 575 square meters of village Cavelossim (hereinafter referred to as 'the suit property'). According to the plaintiffs, the defendants living in the adjoining property, Survey No.39/17 of village Cavelossim of their ownership, despite having access to the public road - Afonso ward road-passing through Survey No.39/12 and 39/15 of village Cavelossim belonging to one Mrs. Albertina D'Costa, have started forcibly trespassing into the suit

property, and passing through it for accessing a public road. The defendants resisted the suit and made a counterclaim to the access passing through extreme north of the suit property on the ground that the said access was being used right from the time of the purchase of the plot in their occupation in 1974 openly and without any obstruction till the month of June 1996 vide written statement dated 7th February, 1997. The defendants further elaborated their contentions with the amendment to the written statement carried out on 2nd August, 1999. The defendants pleaded that the use of the said access has been done by the defendants as a matter of right and without prior permission or tolerance and has been exercised for more than 22 years prior to the institution of the suit openly, peacefully and publicly with the consequential acquisition of right of way by prescription. With additional pleadings, the defendants gave the dimensions and the location of the access which they claimed through the suit property for accessing a public road leading to ferry.

3. Upon considering the evidence and the provisions of Indian Easements, Act, 1882, particularly Section 15 of the said Act governing the acquisition of easement by prescription, the learned trial Court decreed the counterclaim in favour of the defendants and dismissed the suit. The learned trial Court was satisfied about the fact that the defendants have been enjoying the said access passing through the suit property peacefully, openly, and without any interruption for a period of over 22 years. In the appeal preferred from the judgment and decree passed by the learned trial Court being Regular Civil Appeal No.157/2001, the learned Additional District Judge, Margao upon reappreciation of the facts and law was not of different view than the one taken by the learned Civil Judge, S.D.,Margao.

4. In the present appeal challenging the said decisions of the trial Court and First Appellate Court the following substantial questions of law have been framed :

1) Whether a claim of easement under the Indian Easements Act, 1882 is available to a party prior to enforcement of the Act (Date of enforcement in Goa being 1.11.1978) when prior thereto easementary rights were recognized and protected by the Portuguese Civil Code, 1867?

2) Whether right of prescription being an inchoate right and which can be claimed only in the manner provided by the statute, can be claimed until the entire full period provided under the statute has expired?

3) Whether the provisions of Article 2309 of the Portuguese Civil Code stand repealed by virtue of the enforcement of the Indian Easements Act,1882 and whether a claim under Section 15 of the Indian Easements Act, 1882 would be admissible in view of the provisions of Article 2309 of the Portuguese Civil Code?

5. The learned Senior Advocate Lotlikar for the appellants submitted that the Indian Easements Act, 1882 came in force in the State of Goa on 1st Novembe