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IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 32 OF 2002

1

Smt. Indumati Parshuram

Shirodkar, widow of late Shri

Parshuram Shirodkar, aged 83

years, housewife, residing at

Shetiavaddo, Duler, Mapusa,

Bardez Goa.

2

Shri Shashikant Parshuram

Shirodkar, son of late Parshuram

Shirodkar, major of age,

businessman, residing at

Shetiawaddo, Duler, Mapusa,

Bardez Goa.

….. Appellants

V e r s u s

1

Chapel of Holy Cross, having its

main place at Shetiawaddo,

Mapusa, Bardez, Goa,

represented by its President, Mrs.

Dolly D'Souza, residing at

Shetiawaddo, Duler, Mapusa,

Bardez Goa.

2

Communidade of Mapusa,

through the Administrator of

Communidades of Bardez,

Communidade Building, Altinho,

Mapusa, Bardez Goa.

….. Respondents

Mr. V. A. Lawande, Advocate for the appellants.

Mr. S. D. Lotlikar, Senior Advocate with Mr. K. Surjuse,

Advocate for the respondents.

CORAM : F. M. REIS, J

DATE: 25

^th APRIL, 2012

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ORAL JUDGMENT :

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

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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

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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. 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