F.M. Reis, J.- Heard Mr. N. Sardessai, learned counsel appearing for the appellants and Mr. S.S. Kantak, learned Senior Counsel appearing for the respondent Nos. 3(a) to 3(c) and 4.

2. The above Second Appeal has been admitted by this Court by order dated 07.09.2011 on the following substantial question of law:

'Whether the Courts below erred in allowing the respondents' plea that the respondents had a right of way through the suit property without spelling out, discussing what the said right was, more in view that both the Courts below had rejected the respondents' contention/plea as ownership/co-ownership of the suit property?'

3. Mr. N. Sardessai, learned counsel appearing for the appellants has pointed out that it was the contention of the respondents in the a counter claim that the sale deed executed in favour of the appellants dated 10.3.1971 was null and void and that the respondents were also seeking a declaration that they had acquired right of way through the property which was the subject matter of the said sale deed. The learned counsel further pointed out that originally the whole property was in co-ownership between the appellants and the respondents and the other co-owners and that in view of the partition by virtue of the allotment in the Inventory Proceedings, a specific portion of the property was allotted to the appellants and the respondents and the disputed suit property surveyed under No. 56/13 of Varca Village was in fact sold by the respondents to the appellants. The learned counsel further pointed out that the attempt by the respondents to declare the said sale deed as null and void has failed and has attained finality, and as such the learned Judge was not justified to grant a right of way through the suit property when in the partition proceedings an access was reserved for the benefit of all the co-owners towards the extreme side of the suit property. The learned counsel further submitted that even assuming the contentions of the appellants are accepted, for a claim of access under Section 15 of the Easement Act, it was incumbent upon the respondents to establish such user as a matter of right for a period of 20 years with some animus or hostile user against the appellants herein. The learned counsel further submitted that on bare perusal of the reliefs in the counter claim, there is nothing to suggest on that count and in any event, if the contention of the respondents is accepted, at the most, such occupation would be on the assumption that the respondents are the co-owners of the disputed access. The learned counsel further pointed out that a co-owner cannot claim any hostile right and/or prescriptive right of easement over the property as against the other co-owners and as such the Courts below have not examined the said aspect and have erroneously come to the d conclusion that the respondents are entitled for the declaration of the right of way through the property of the appellants. The learned counsel further submitted that the pleadings do not suggest any allegations with regard to such user as a matter of right and it is well settled that unless and until such right of the user is established by the respondents, the question of granting any declaration as decreed by the Courts below is not at all justified. The learned counsel further

submitted that the Courts below have not determined under which provisions of law such easementary right has been culled out in favour of the respondents and this itself has resulted in a substantial question of law which calls for interference by this Court in the above Second Appeal. The learned counsel has taken me through the impugned judgment and pointed out that the learned Judge has totally misdirected itself while coming to the conclusion that the respondents are entitled for an easement through the property of the appellants which is designated as Lote-B in the plan at Exhibit PW 1/C. In support of his submissions, the learned counsel has relied