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BOMBAY HIGH COURT AT PANAJI, GOA
F.M. REIS, J.
Smt. Indumati Parshuram and another - Appellants
Versus
Chapel of Holy Cross and another - Respondents
Second Appeal No. 32 of 2002,
Decided on 25th April, 2012
Held - First Appellate Court erred in holding that appellants should have opted for relief before trial could have started - Plaintiff always entitled to seek an alternative relief - No specific pleading by appellants to claim a right of easement under Section 15 of Act by prescription through property of respondents - Finding of facts cannot be re-appreciated in second appeal -Findings recorded by first Appellate Court not perverse - Impugned judgment and decree warrants no interference - Appeal devoid of merits - Dismissed.
It is well settled that the plaintiff is always entitled to seek an alternative relief. The Court at the final stage of the suit is to consider which is the appropriate relief to be granted to the plaintiff on the basis of material on record. Hence, it cannot be accepted that the plaintiff has to opt for the relief before recording of evidence. Hence, to that extent Shri Lawande. is justified to contend that the Judge has committed an error in holding that the appellants should have opted for the relief before the trial could have started. Hence, merely because the finding of the Judge to the extent as stated herein above is not correct does not by itself vitiate the judgment of the Lower Appellate Court. The request of the counsel appearing for the appellants to remand the matter on that count would as such not arise. The first substantial question of law is answered accordingly.
With regard to the second substantial question of law framed, referred to herein above, on perusal of the plaint, the only allegations made by the appellants to claim their right of easement under Section 15 of the Easement Act are the averments at para 18 of the plaint.
There are no particulars given by the appellants which entitled the appellants to claim easementaly right of prescription under Section 15 of the Easements Act. There is no specific date given as to from which date such right was being used by the appellants as a means of access nor any averments in the plaint to disclose that such user was as a matter of right. Lack of pleadings itself vitiate the claim of the appellants that they are entitled to the right of access by prescription under Section 15 of the Easements Act.
When a person is claiming a right by adverse possession and easement by prescription, there has to be categorical and specific pleadings, as such right in any event defeat the right to the property of the true owner. In view of the fact that such pleadings are lacking in the plaint, the Judge acted in material irregularity in assessing the evidence which was beyond the pleadings. Hence, the contention of Shri Lawande, counsel appearing for the appellants that the Lower Appellate Judge has not assessed the evidence and has not set aside the findings of the trial Court cannot be accepted. The lower appellate Court has considered the pleadings as well as the material adduced by the parties and has come to a categorical findings that the appellants have failed to show any easementary right of prescription through the property of the respondents. These findings of fact cannot be re-appreciated by the Court in exercise of jurisdiction under Section 100 of Civil Procedure Code.
F.M. Reis. J.
1. Heard Shri V. Lawande, learned Counsel appearing for the appellants and Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents.
2. The above appeal challenges the judgment passed by the Lower Appellate Court dated 11.03.2002 passed in Regular Civil Appeal No. 52/2000 whereby an appeal preferred by the respondents was allowed and the judgment and decree passed by the learned Trial Judge came to be quashed and set aside. The above appeal came to be admitted by order dated 31.01.2003 on the following substantial question of law :
1. Whether a party cannot be permitted to lead evidence on one of the two inconsistent pleas and has to opt for one of such inconsistent pleas at the time of leading evidence as has been held by the Lower Appellate Court?
3. After hearing the learned Counsels and at the request of learned Counsel appearing for the appellants, the following additional substantial questions of law are framed.
2. Whether the appellants have made out a case to claim easementary right under Section 15 of the Easement Act?
3. Whether the findings of the Lower Appellate Court are perverse as the findings of the learned Trial Judge have not been set aside?
4. Dealing with first substantial question of law, Shri Lawande, learned Counsel appearing for the appellants has pointed out that it is well settled that the plaintiff can take an alternate plea and there is no provision in law which requires the plaintiff to opt for one relief at the time of recording of evidence. The learned Counsel further pointed out that it is well settled that the Court has to grant a relief to which the plaintiff is entitled after appreciating the evidence on record and considering the rival contentions of the parties. The learned Counsel has taken me through the judgment passed by the Lower Appellate Court and pointed out that the learned Judge has failed to consider the aspect as to whether the appellants have made out a case to claim a right of easement by prescription under Section 15 of the Easement Act on a spacious ground that the appellants had not opted for one relief which they have claimed in the suit.
5. Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents in fact does not dispute the fact that the appellants are always entitled to take alternative plea and claim an alternative relief a The learned Senior Counsel further pointed out that the learned Judge has not rejected the plea of the appellants merely on the ground that they had not opted to the relief which they want to confine in the plaint but on the contrary the Lower Appellate Court considered the evidence on record and found that the appellants are not entitled to claim easementary right under Section 15 of the Easement Act. The learned Senior Counsel as such submits that the first substantial question of law is to be answered in favour of the respondents.
6. Upon hearing the learned Counsels on the first substantial question of law, I find that it is well settled that the plaintiff is always entitled to seek an alternative relief. The Court at the final stage of the suit is to consider which is the appropriate relief to be granted to the plaintiff on the basis of material on record. Hence, it cannot be accepted that the plaintiff has to opt for the relief before recording of evidence. Hence, to that extent Shri Lawande, is justified to contend that the learned Judge has committed an error in holding that the appellants should have opted for the relief before the trial could have started. But however Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents has rightly pointed out that the learned Judge whilst assessing the evidence on record has also considered the c aspect as to whether the appellants have made out a case to claim an easementary right under Section 15 of the Easement Act. Hence, merely because the finding of the learned Judge to the extent as stated herein above is not correct does not b
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