The central legal point established in the judgment is that the defendant failed to establish his easementary right over the disputed road, as per the provisions of the Indian Easements Act, 1882.

1. Heard rival arguments at length on this First Appeal preferred by original defendant no.1 challenging the judgment and decree passed in Civil Suit No.303/2004 dated 30/08/2008. Said suit was filed by present respondents no.1 & 2, original plaintiffs. In the original suit, the present appellant was defendant no.1 and Assistant Engineer Sub-division-II, PWD, Goa was defendant no.2 and State of Goa was defendant no.3. The impugned judgment and decree is against the present appellant/original defendant no.1 only and, as such, present appellant is the only aggrieved party and there is no appeal preferred by original defendants no.2 & 3, as there was no obligation placed on them by impugned judgment and decree. Prior to discussing the case of the rival contesting parties, the averments in the plaint and in the written statement and the issues framed and the answers given and the final order passed are mentioned herein below to have proper perspective of the case.

2. Present appellant is hereinafter referred to as the defendant no.1 whereas the present respondent no.1 is referred to as plaintiffs.

3. It is the case of plaintiffs that they have purchased the suit plot which is admeasuring 610 square metres by registered sale deed dated 25/02/2004 and subsequent deed of ractification/rectification from one Jose Adolfo Figueredo. Said Jose was the owner of 4/8th part of the property known as “Govatil Choato”. Said property was enrolled in the Taluka Revenue Office of Quepem under matriz No.1125. It is situated in Village Shelvona. The 4/8th share of said Jose was surveyed and numbered as 31/44. Out of said survey number plaintiffs have purchased 610 square metres of land as mentioned above. Admittedly, about 25 years back prior to the purchase of the land of the plaintiffs, defendant no.2 had constructed a road through the said survey number and which is referred as 'tar road' in the plaint. The property purchased by the plaintiffs is bounded as follows:

On North by remaining property of vendors and partly by road,

On South by property bearing Survey No.31/50,

On the East by PWD road, and,

On the West by property surveyed under no.30/1.

4. Defendant no.1 owns a house in the property bearing survey no.30/1, which is lying towards the western side of the property of the plaintiffs being part of survey no.31/44. Sometime in last week of November, 2004 defendant no.1 managed to get truck loads of mud and laid it on the northern part of the plot purchased by the plaintiffs. It was specifically so laid towards the south of the existing tar road abutting the north boundary of the plot of the plaintiffs. In the plaint, it is specifically averred that the said dumping of mud was covering the area of about 130 square metres from the 610 square metres plot purchased by the plaintiffs and it was so done by defendants no.1,2 & 3 at the behest of defendant no.1. The said encroached area was demarcated by the letters A,B,C,D on the copy of survey plan filed along with the plaint. According to the plaintiffs, defendant no.1 had no right of whatsoever in nature to construct the road by putting mud on the part of the plot purchased by the plaintiffs. Consequently, the suit was filed and different reliefs were claimed. Out of those reliefs only reliefs no.(b) and (d) were granted by the trial Court vide impugned judgment and decree. The operative part of the order of the judgment of the trial Court is reproduced hereunder:

“The suit is decreed in terms of prayers (b) and (d) only against the defendant no.1 with costs. The defendant no.1, her children, representatives, agents, servants, etc. are hereby permanently restrained from constructing the road in the suit plot. The defendant no.1 her children, representatives, agents, servants, etc. are hereby directed to remove the mud dumped in the suit plot more particularly depicted in the plan at exbt.69 as an encroachment in the suit plot.

Sd/-

(P.V. Sawaikar)

District Judge-3,

South Goa,

Margao”