A claim for easement rights cannot be established by a co-owner of the property in question where alternate access exists.

ORAL JUDGMENT

Heard the learned Counsel for the Appellant and the Respondents.

2. This Second Appeal challenges the Judgment passed by the Courts below whereby the suit filed by the Appellants to restrain the Respondents by a permanent injunction from constructing the compound wall or obstructing, blocking, erecting any impediment or encroachment on the suit pathway or from causing or attempting to cause any further obstruction on the suit pathway, came to be dismissed.

3. It is the case of the Appellant that she is residing in a part of the house bearing no.165, situated in the property known as “Mando”, located at Wadi Aframent, Siolim, Bardez, Goa, surveyed under no. 347/0. It is further her contention that the Respondents are residing in a house situated in front of the house of the Appellant and that there is only one easementary pathway situated towards the southern side of the house of the Respondents which leads to the main road from the Appellant's house. It is further her contention that she has been using the said pathway for last more than 30 years and that the land where the suit pathway is located belongs to all the co-owners and that the Appellant is one of the co-owner. It is further her contention that there is a slab over the drain towards the eastern side which is existing since the time the houses were constructed and that they have been repaired some ten years back and that the expenses thereof were shared by the Appellant and the Respondents. It is further the contention of the Appellant that the Respondents started abusing the Appellant and threatened to block the suit pathway and consequently the suit for permanent injunction came to be filed by the Appellant.

4. The Respondents filed their written statements disputing the claim of the Appellant. It is their case that the property of the Respondents and adjoining property of Joseph Fernandes and others, all surveyed under no. 347/0 are separate and distinct properties which were three separate aforamentos belonging to the Communidade of Assagao which were allotted by the said Communidade separately to Luis Manuel Mascarenhas, who is the ancestor of the Appellant. Custodio Manuel Dias, who is the ancestor of the Respondents and Joao Antonio Fernandes. The said suit plots were earlier surveyed under survey no. 129, sub-division no.1 in the Index of Lands in Form no. III of Siolim Village. The Respondents disputed the contention of the Appellant of co-ownership and claimed that the Appellant has no right of any nature to the suit pathway.

5. The learned Trial Court after framing of issues and recording the evidence, dismissed the Suit by Judgment and Order dated 23.09.2002. While disposing of the said suit, the learned Judge came to the conclusion that the Appellant has failed to establish her right of way through the suit pathway. The learned Judge further came to the conclusion that the Appellant has failed to establish her claim of co-ownership over the suit pathway. While passing the said Judgment, the learned Judge has appreciated the evidence on record both documentary as well as oral and came to the conclusion that the claim of the Appellant that she has easementary right of necessity over the suit pathway has not been established as the Appellant has failed to show that the whole property was partitioned so as to claim an easementary right under the provision of Section 13 of the Easement Act 1882. The learned Judge further came to the conclusion that the Appellant has failed to establish that she was the co-owner of the suit pathway considering the evidence on record that the house of the Appellant was surrounded on all four sides by a