Appeal From Order No.55 of 1994,Civil Application No.102 of 1994

26th November, 1996

Petitioner Counsel: Shri V.B. NADKARNI with Shri V.P.THALY and Shri S.BANDODKAR.
Respondent Counsel: Shri S.D. LOTLIKAR.

Cases Cited:
AIR 1985 SC 119 [Para 6]
AIR 1970 Goa 143 [Para 6,10]
AIR 1976 Goa 54 [Para 6,10]
1963(3) SCR 884 [Para 7]
AIR 1962 SC 1476 [Para 7,11]
AIR 1986 SC 859 [Para 7,11]
AIR 1925 All 487 [Para 8]
AIR 1955 SC 781 [Para 8]
AIR 1970 All 648 [Para 8]
AIR 1971 SC 2486 [Para 8]
AIR 1982 SC 33 [Para 11]

JUDGMENT

JUDGMENT :- The appellant (plaintiff) has filed a suit for declaration, preemption and injunction. The appellant also sought temporary injunction against respondents Nos. 1 and 2 (defendants Nos.1 and 2 in the suit) seeking to restrain them from raising any construction or doing any activity connected thereto like dumping material, excavating in the suit property, blocking the passage of the plaintiff through the suit property.

2. The appellant's case, in brief, is that the property "Quedalo" under Survey No.215/2 of village Calangute admeasuring 850 sq. metres, which belongs to him and respondents Nos. 5 to 9 (defendants Nos. 5 to 9 in the suit), is bounded on the south by property under Survey No.215/5, which admeasures 1625 sq. metres. The said property on the south is divided into two plots, namely, plot 'A' and plot 'B'. Plot 'A' is touching appellant's property and plot 'B' lies on the south of plot 'A'. Plot 'A' belongs to respondents Nos. 1 and 2, which is the suit property involved in this case. Plot 'B' belongs to respondents Nos. 3 and 4 (defendants Nos. 3 and 4 in the suit). Thus, the suit property, namely, plot 'A' is sandwiched between the appellant's property and plot 'B' of respondents Nos. 3 and 4. A public way passes through plot 'B'. According to the appellant, his property is landlocked and is at a distance of 400 metres from the main road. The appellant claims that he and his family members have been passing through the suit property and using the same as access to the public way, which passes through plot 'B' and connects to the main road. It is further contended that the said access through the suit property was not obstructed any time. In June 1993, respondent No.1 came to the suit property and started taking measurements. Smt. Catarina Fernandes, power of attorney of the appellant, who lives in the neighbourhood informed the said fact to the appellant. On enquiries made by the appellant with the Office of the Sub-Registrar, Mapusa, it was learnt that the suit property, which originally belonged to Smt. Odelia D'Souza and Shri Anthony Gomes, was sold to respondent No.1 vide Sale Deed dated 2-1-1988 and respondents Nos. 1 and 2 desired to raise construction in the suit property and thereby blocked the free access of the appellant, which will result in irreparable loss to him. The appellant's property being landlocked, the appellant claims right to the said access through the suit proeprty on payment of compensation, in view of Article 2309 of Codigo Civil. The appellant also seeks to enforce the right of preemption in respect of sale of the suit property in terms of same Article 2309 of Codigo Civil. The appellant claims that the original owner of the suit property did not give any notice of sale and the appellant can exercise right of preemption within six months of knowledge of sale as per Article 1566 of Codigo Civil. The appellant has expressed his readiness and willingness to pay the sale price in order to exercise the right of preemption. Accordingly, the appellant seeks declaration that his property under Survey No.215/2 is landlocked; that he along with respondents Nos. 5 to 9 are entitled to have right of way through the suit property upon payment of compensation at the rate of Rs.100 per square metre and that they are also entitled to exercise the right of preemption.

3. The case of respondents Nos. 1 and 2 is that the provisions of Portuguese Civil Code relating to easement have been repealed by the extension of Indian Easements Act to Goa, Daman and Diu in the year 1978; that the right of preemption claimed by the appellant cannot be granted as the same is ultra vires the Constitution of India and that the suit is barred by the limitation. The said respondents have denied that the appellant's property is landlocked; that they have left an access of 3 metres on the eastern boundary of the suit property, which access is going to touch the plaintiff's property; in addition they have also left an access of 1.5 metres on the western boundary of the suit property and also an access of 1.5 metres on the northern side from 3 metres access on the eastern side upto the gate of the plaintiff's property; that the Village Panchayat is going to develop the said 3 metres access on the eastern side of the suit property as public road, which will touch the southern and eastern side of plaintiff's property and that the construction is being carried out by them after obtaining licence and leaving access as already mentioned above.

4. The trial Court took the view that, prima facie, Article 2309 had been repealed; that only the co-owner had right to purchase the property in the exercise of right of preemption and that defendants Nos. 1 and 2 are in no manner connected with the plaintiff. The trial Court, therefore, concluded that the appellant had failed to prove prima facie case to establish his right over the suit property; balance of convenience was in favour of defendants Nos. 1 and 2 and if the injunction was granted, respondents Nos. 1 and 2 will suffer irreparable loss as they would be restrained from enjoying their property and making construction thereon, which will deprive them of their proprietory rights. The temporary injunction application was, therefore, dismissed. This order is challenged in this Appeal.

5. The appellant had sought temporary injunction in this Appeal seeking restraint on construction or from dumping any material, excavation of the suit property or blocking the passage of the appellant to the suit property. By order dated 22-4-1994, this Court had directed the respondents Nos. 1 and 2 to give an undertaking that the construction sought to be raised shall be removed in case the appellant succeeds in the suit. There is nothing on record to show whether any such undertaking was furnished and no further order has been passed in Civil Application No.102 of 1994.

6. Learned Sr. Advocate Shri Nadkarni, relying upon Article 2309 and Article 1566 of the Portuguese Civil Code, has submitted before me that the appellant has, prima facie, valid claim in respect of the suit property and that the matter involves determination of constitutional validity of the right of preemption claimed by the appellant. After taking me through the pleadings of the parties, it was submitted that the appellant is entitled to stopping of construction which, if not stopped, would affect appellant's right and claim to the suit property. He relied upon State of Maharashtra v. Kamal (AIR 1985 SC 119) (Para 27 at page 129), Nandu Noorani v. Jacinto Humberto Cirilo D'Cruz (AIR 1970 Goa 143) and The Temple of Shri Shantadurga Calangutcarina, Nanora & ors. v. Macario Francisco Jose Duarte & anr. (AIR 1976 Goa 54).

7. Learned Advocate Shri S.D.Lotlikar urged that the pleadings in Paras 19, 20 and 21 of the plaint speak of blockade of the access and if the same is taken care of, construction cannot be stopped. According to him, the trial Court had wrongly come to the conclusion that appellant's case that his property was landlocked was undisputed, which is, in fact, contrary to the stand taken by respondents Nos. 1 and 2 in Paras 14 and 15 of the Written Statement. According to him, it is not necessary to go into the question of constitutional validity of the preemptive right, as no such right is available to the appellant and, even otherwise, it is not necessary at this stage to go into the said question. He also urged that right of preemption is lost when access is kept by the vendor and the property ceases to be enclosed property. On facts, it is urged that no prima facie case has been made out by the appellant nor irreparable loss and balance of convenience has been established and that there is no reason whatsoever to interfere with the Order of the trial Court. Shri Lotlikar placed reliance upon Amir Singh and another v. Ram Singh and others (1963(3) S.C.R. 884), Bharu Ram v. Baij Nath Singh and others (AIR 1962 SC 1476 and Atam Prakash v. State of Haryana and Others (AIR 1986 SC 859).

8. In reply, learned Sr. advocate Shri Nadkarni submitted that no notice of sale was given to the appellant and that taking into consideration the principle of lis pendens embodied in Section 52 of the Transfer of Property Act, respondents Nos. 1 and 2 should not be permitted to go ahead with the construction and such directions can be issued under Section 52 of Transfer of Property Act falling within the expression "or otherwise dealt with". Shri Nadkarni further relied upon Kehar Singh v. Jahangir Singh and another (AIR 1925 All. 487), Bhikaji Narain Dhakras and others v. State of Madhya Pradesh and another (AIR 1955 SC 781), Modh. Ismail v. Ashiq Husain (AIR 1970 All. 648) and Madhu Limaye v. S.D.M. Monghyr (AIR 1971 SC 2486).

9. The appellant's claim in the suit is mainly based upon Article 2309 of the Portuguese Civil Code, which deals with the right of the owners of the enclosed properties. The Trial Court had proceeded on the basis that it was undisputed that the appellant's property was landlocked. Though, the case of the appellant was that the property "Quedalo" surveyed under No.215/2 was landlocked property, yet this fact was clearly disputed by respondents Nos. 1 and 2 in Para 14 of the Written Statement. The appellant's case further was that he along with his family members had been using access through suit plot 'A' belonging to respondents Nos. 1 and 2, which, in turn, joined the public way which passes through plot 'B' and the said public way ultimately joined the main road. The contention of the appellant further is that respondents Nos. 1 and 2 are putting up construction so as to block the said access to the public way. It is pertinent to note that the respondents have left an access of 3 metres on the eastern boundary of the suit property, which access is going to touch the appellant's property; in addition, respondents Nos. 1 and 2 had also left an access of 1.5 metre on the western boundary of the suit property and also an access of 1.5 metre on the northern side from the 3 metres access on the eastern side upto the gate of the appellant's property. The Panchayat, vide letter dated 1-10-1993, upon which reliance has been placed by respondents Nos. 1 and 2, had decided to develop the said 3 metres access on the eastern side of the suit property as a public road, which will touch the southern and eastern sides of the appellant's property. The licence for the construction which is being carried out in plot 'A' was, accordingly, granted by the Village Panchayat. Prima facie, therefore, access has been duly provided by respondent No.1 through plot 'A' and, as such, on facts, the appellant has no prima facie case for the purpose of stopping the construction of respondents Nos. 1 and 2. The trial Court has come to the conclusion that balance of convenience was not on the side of the appellant and the irreparable loss in case of grant of injunction would be to respondents Nos. 1 and 2 than the appellant. In my opinion, these findings of the trial Court are well-founded and do not call for interference.

10. In view of the above, arguments advanced by Advocates for the parties on other aspects, in fact, recede in the background. It would suffice to make a brief reference to the said arguments advanced before me. Insofar as the question of repeal of Article 2309 of the Portuguese Civil Code is concerned, it has to be noted that, prima facie, there does not appear to be any corresponding law in the Indian Easements Act dealing with the rights of owners of landlocked properties as contained in Article 2309. The Object and Reasons of the Goa, Daman and Diu (Extension of Easements Act) Act, 1978 states that Articles 2309, 2311, 2312, 2313 and 2314 of the Portuguese Civil Code regarding easement was in force in Goa, but the Portuguese law was not elaborate to meet all eventualities and, as such, it was necessary to replace the Portuguese legislation by the said Act. In Clause 4 of the Bill, which deals with repeal and saving, it was specifically provided that with effect from Easements Act coming into force, Articles 2309, 2311, 2312, 2313 and 2314 of the Portuguese Civil Code and any other law in force corresponding to any of the provisions of the Act shall stand repealed. However, Section 4 of the Goa, Daman and Diu (Extension of Indian Easements Act) Act, 1978 omitted reference to any of the said Articles of the Portuguese Civil Code and provided that on and from the date on which provisions of the said Act came into force, the corresponding provisions of any law in force in the Territory shall stand repealed. Therefore, prima facie, it cannot be said that Article 2309 stands repealed. The rulings of the Court of Judicial Commissioner of Goa reported in Nandu Noorani v. Jacinto Humberto Cirilo D'Cruz (supra) and The Temple of Shri Shantadurga Calangutcarina, Nanora & Ors. v. Macario Francisco Jose Duarte & Anr. (supra), upon which reliance has been placed by the learned Sr. Advocate Shri Nadkarni, do not, in any manner, help the appellant's cause.

11. Insofar as the claim of the appellant relating to preemption is concerned, the law laid down by the Apex Court on the question of availability of the said right on the grounds of contiguity/vicinage and consanguinity is now well settled and the said right is not available on the said grounds. The rulings of the Apex Court on this aspect are Bharu Ram v. Baij Nath Singh and others (supra) and Atam Prakash v. State of Haryana and others (supra). It is no doubt true that Article 19(1)(f) of the Indian Constitution has now lost relevance after the passing of the Constitution (44th Amendment) Act, 1978 by which the said Clause was deleted. Article 300-A of the Indian Constitution deals with right to property and lays down that no person shall be deprived of his property save by authority of law. The right not to be deprived of property save by authority of law is no longer a fundamental right though it is still a constitutional right as has been pointed out by the Apex Court in M/s Bishamber Dayal Chandra Mohan v. State of U.P. (AIR 1982 SC 33). Article 1566 of the Portuguese Civil Code speaks of preemption right insofar as co-owners are concerned, but the appellant cannot claim right of preemption under the said Article since the appellant was not co-owner of the suit property at any point of time. On the ground of vicinage/contiguity, right of preemption, prima facie, is not available in the light of rulings of the Apex Court, but in case the trial Court in the course of the trial of the said suit, considers it necessary that constitutional validity of Article 2309 of the Portuguese Civil Code is required to be decided the trial Court would be free to adopt the course available in law. It is not necessary at this stage in appeal from injunction to deal with the constitutional validity of the said provision.

12. Learned Sr. Advocate Shri Nadkarni had next contended that construction should be stopped on the principle of lis pendens as contained under Section 52 of the Transfer of Property Act, which gives ample scope to the Court to otherwise deal with the matter pending litigation. He, therefore, contends that following the said principle, construction should be stopped. I do not find any merit whatsoever in this submission of the learned Sr. Advocate Shri Nadkarni and the rulings quoted by him do not, in any manner, help the case of the appellant. There is considerable force in the contention of learned Advocate Shri Lotlikar that the access through the suit plot 'A' has already been provided by respondents Nos. 1 and 2, which had been claimed by the appellant and, as such, no prima facie case has been made out to stop the construction. Whether right of preemption is lost where access is kept by the vendor and the property ceases to be enclosed when access is provided are questions which are left open for the decision of the trial Court in the suit.

13. For the reasons mentioned above, I do not find any merit in this Appeal and the Appeal is hereby dismissed. However, it is necessary to point out that, at any event, the construction, if any, made in the suit plot 'A' shall be subject to the final result of the suit and the fate of the said construction would depend upon the decision in the suit. In the facts and circumstances, I would leave the parties to bear their costs. Civil Application No.102 of 1994 does not survive and is dismissed.

Appeal dismissed.