ORAL JUDGMENT

Heard Mr. M. B. Da Costa, learned Senior Counsel appearing for the appellants and Mr. G. Teles, learned counsel appearing for the respondent nos. 1 and 2.

2. The above appeal came to be admitted by an order dated 28.08.2009 on the following substantial questions of law.

(1) Whether right of pre-emption available under Article 2309 of Code of Civil Procedure (Portuguese ) is repealed due to S.4 of Goa, Daman and Diu (Extension of Easements Act ) Act, 1978 ?

(2) Is the right of pre-emption available under Article 2309 of Code of Civil Procedure (Portuguese ) where a traditional way resembling to easement of necessity exists over the property catering to the easement ?

3. Mr. M. B. Da Costa, learned Senior Counsel appearing for the appellants in support of the above substantial questions of law has pointed out that the appellants have filed a suit for preemption in terms of Article 2309 of the Portuguese Civil Code as according to him the property belonging to the appellants was landlocked and the appellants had a right of way to the main road through the property purchased by the respondent no.1. The learned Senior Counsel further pointed out that the learned Trial Judge by judgment and decree dated 23.01.2003 after appreciating the evidence on record has come to the conclusion that the subject property belonging to the appellants was landlocked and the appellants had a right of preemption over the purchase effected by the respondent no.1. The learned Senior Counsel further pointed out that the judgment and decree passed by the learned Trial Judge came to be challenged by the respondent nos. 1 and 2 before the learned Lower Appellate Court whereby the appeal preferred by such respondents came to be allowed by the impugned judgment and decree dated 23.02.2007. The learned Senior Counsel has thereafter taken me through the judgment passed by the learned Lower Appellate Court to point out that though the claim of the appellants was in terms of Article 2309 of the Portuguese Civil Code, the learned Lower Appellate Court has erroneously considered the matter on the premise that the claim of the appellants was in terms of Article 1566 of the Portuguese Civil Code on the basis of co-ownership right. The learned Senior Counsel further pointed out that it is not the case of the appellants that they are claiming preemption on the basis that they are co-owners of the property but on the basis that the property of the appellants is landlocked and as such they have a right of preemption on the transfer effected in favour of the respondent nos.1 and 2 by the respondent no.4. The learned Senior Counsel has extensively taken me through the judgment of the learned Lower Appellate Court to point that the claim of the appellants under Article 2309 of the Portuguese Civil Code was not at all examined by the learned Lower Appellant Court and consequently, the impugned judgment passed by the learned Lower Appellate Court cannot be sustained and deserves to be quashed and set aside. The learned Senior Counsel as such submits that without going into the merits of the contention raised by the respondents, it would be appropriate to quash and set aside the judgment passed by the learned Lower Appellate Court and the matter be remanded back to the learned Lower Appellate Court to decide the appeal preferred by the respondent nos. 1 and 2 afresh after hearing the parties in accordance with law.

4. On the other hand, Mr. G. Teles, learned counsel appearing for the respondent nos. 1 and 2 has pointed out that it is the case of the respondents that they are the co-owners of the property and consequently, they are entitled to the right of preemption in respect of the suit property. The learned counsel further pointed out that in any event, according to the appellants the provisions of Article 2309 of the Portuguese Civil Code stands repealed in view of the extension of the Easement Act and consequently, the claim of the appellants is totally farf