Bombay High Court
Shabbir Khan & Others vs Krishna Babusso Naik & Others on 23 March, 1998
Equivalent citations: 1998(3)BOMCR877
Author: R.K. Batta
Bench: R.K. Batta
ORDER R.K. Batta, J.
1. The respondents No. 1 and 2 (hereinafter referred as plaintiffs) had filed a suit against the appellants (hereinafter referred as defendants No. 14 to 17) and against the present respondents No. 3 to 15 (hereinafter referred as defendants No. 1 to 13) for declaration that the only access of the plaintiffs to the public road is through Plot No. 5 (which is surveyed under No. 110 sub-division 4) of property Gorbatta and which further passes through property Ubodando and property Oilem Morod in the part which belongs to the plaintiffs. The plaintiffs seek right of preference and pre-emption in respect of the said Plot No. 5, Surveyed under No. 110/4 on payment of the price of Rs. 40,000/- which is paid by defendants No. 14 to 17 due to purchase of the said Plot No. 5 from defendants No. 1 to 13.
2. The plaintiffs' case, in brief, is that the property 'Gorbatta' was divided by Deed dated 25-4-1916 into 5 plots and plots No. 1 to 4 belonged to the plaintiffs out of Survey No. 110. Plot No. 5 which is the suit plot which also falls under Survey No. 110 belongs to the defendants. The plaintiffs' case is that they are using the said suit Plot No. 5 belonging to the defendants as access in order to reach their other part of the property 'Ubodando' and 'Oilem Morod' and from there to the public road. The plaintiffs claimed that the said access through the said Plot No. 5 was the only access they had in order to go to their property 'Ubodando' and 'Oilem Morod' and from there to the public road and this access has been used by them for over 60 years. On 17th August, 1981 the defendants No. 1 to 13 submitted for registration Sale Deed of suit Plot No. 5 under Survey No. 110/4 together with the drain under Survey No. 110/3 in favour of defendants No. 14 to 17. Defendant No. 14 tried to obstruct the access through the said suit Plot No. 5 but did not succeed. The plaintiffs claimed that their property is enclaved and access to the public road passes through the suit Plot No. 5, to which the plaintiffs had right of preference and pre-emption in respect of suit Plot No. 5. According to the plaintiffs, they came to know of the Sale Deed on 20-11-1981 when defendant No. 14 had tried to obstruct them from using the access by constructing stone obstruction on the access as a result of which the plaintiffs after making efforts found out on 28th January that suit plot had been sold by defendants No. 1 to 13 to defendants No. 14 to 17 for a sum of Rs. 40,000/-. Hence the suit in question was filed.
3. On the other hand, defendants No. 1 to 7 and 14 to 17 who filed their written statement have taken the stand that the plaintiffs have direct access to the road and do not have to pass through the suit property belonging to defendants No. 14 to 17; the plaintiffs had never used the suit Plot No. 5 as access to the public road; that defendant No. 14 used to pluck coconuts and other fruits in the presence of the plaintiffs and their family members; that on two occasions surveyor and advocate visited the suit Plot No. 5 for the purpose of measurements and putting the boundary stones which happened about eight months prior to the Sale Deed after which the defendants had raised two huts in pursuance of the agreement of sale.
4. On the pleading of the parties, the Civil Court had framed the following issues:-
"1. Whether the plaintiffs prove that the access from the road to their property containing their residential house, passes through the property surveyed under No. 110/4 which the defendants 1 to 3 have sold to the defendants 14 to 17 ?
2. Whether the plaintiffs prove that they have right of preference and pre-emption with respect to the Plot No. 5 on payment of Rs. 40,000/- plus expenses of the sale deed and Registeration paid by defendants 14 to 17?
3. Whether the defendant Nos. 1, 2, 3, 4, 5, 6, 7, 14, 15, 16 and 17 prove that the plaintiffs were aware of the intended purchase of the suit property long i.e. 1 1/2 year, before the purchase was made ?
4. What relief and what order ?"
After the parties had led evidence, the Civil Judge came to the conclusion that Issues No. 1 and 2 had been proved by the plaintiffs and the defendants failed to prove issue No. 3, with the result that the plaintiffs' suit was decreed in the following terms :--
"Plaintiffs' suit is allowed. However, in the circumstances each party to bear its own costs. It is.declared that only access to the plaintiffs to the public road is through Plot No. 5 of property Ghorbhatta and passes through the property Ubodando and property Oilem Morod in the part which belongs to the plaintiffs. Property Ghorbatta is a property which has easement of access through Plot No. 5 and plaintiffs are given right of preference and pre-emption with respect to the said Plot No. 5 surveyed under No. 110/ 4 to the plaintiffs on payment of Rs. 40,000/- which is price paid by the defendant Nos. 14 to 17 plus costs of stamp for the deed and other expenses. Consequently defendant Nos. 14 to 17 are ordered to execute the sale deed in favour of the plaintiffs for registering the right of preference and presumption allowed to the plaintiff and to register this right to render the consequences of the registration of the previous sale deed dated 14-8-1981 registered under No. 547/81. In the circumstances parties to bear their own costs. Issue decree accordingly."
5. The points for determination which have been urged before me are :
(i) Whether the plaintiffs' property is landlocked so as to entitle them to right of pre-emption claimed by them under Clause (1) of Article 2309 of Portuguese Civil Code;
(ii) If the answer to the first point of determination is in the affirmative whether the defendants had given notice to the plaintiffs of the sale so that the plaintiffs could exercise the right of pre-emption.
6. Learned Advocate Shri Padiyar, appearing on behalf of the appellants/defendants has urged before me that the pre-emption claimed by the plaintiffs is not on the ground of co-ownership but on the ground that the plaintiffs' property is landlocked but the plaintiffs have failed to establish that their property is landlocked on account of the fact that they claim that they have been using the access through the suit Plot No. 5 for over 60 years and the Civil Court has in fact accepted the plaintiffs' case that the access through the suit Plot No. 5 is being used by them for over 60 years. He also pointed out that the defendants are ready to abide by the findings of the Civil Court relating to access through suit Plot No. 5 and would not obstruct the said access shown in green in the plan filed in Misc. Civil Application No. 59/92 in this Court. On the question of notice, it was pointed out that notice was duly given by the defendants to the plaintiffs and the finding of the Civil Court that notice in accordance with law was not given is not based upon material on record and the said finding is required to be set aside. On the basis of the above submission, it is urged that the appeal should be allowed and the plaintiffs' suit should be dismissed.
7. Learned Advocate Shri M.B. D'Costa, appearing on behalf of the respondents/ plaintiffs candidly submitted that the plaintiffs are not claiming right of pre-emption on the ground of co-ownership. Obviously this could not be the ground since the property 'Ghorbat' had been divided into five plots as back as 1916 after which the plaintiffs had become absolute owners of plots No. 1 to 4 and defendants No. 1 to 13 had become absolute owners of Plot No. 5. It was also stated by learned Advocate Shri M.B. D'Costa that the plaintiffs are not claiming right of pre-emption on the ground of contiguity but the plaintiffs' claim the right of pre-emption on the basis that the plaintiffs' property is landlocked and as owners of the landlocked property, they have first right of pre-emption in terms of Clause 1 of Article 2309 of Portuguese Civil Code. It was also urged that alternatively, the plaintiffs also claim the right of pre-emption in view of the fact that their property under Survey No. 110/1 is burdened by easementary right vis-a-vis suit Plot No. 5 under Survey No. 110/4, and, as such, the plaintiffs are entitled to right of pre-emption on this basis as well if their claim based upon their property being landlocked is rejected.
8. Learned Advocate Shri M.B. D'Costa sought permission to amend the plaint so as to claim right of pre-emption on the basis of alternative submission which, according to him, is based upon the factual position on loco with reference to their property under Survey No. 110/1 vis-a-vis suit Plot No. 5. In respect of notice, it was urged that the requirement of law is that the notice has to be given in writing which was not done by the defendants and the Civil Court had very rightly rejected the defence evidence as to oral notice which otherwise suffered from lack of corroboration and inherent defects. He, therefore, contends that there is no case for interference and the appeal is liable to be dismissed.
9. Admittedly, the alternative submission on the basis of which the plaintiffs now seek to enforce right of pre-emption during the course of argument in the first appeal does not find any place in the plaint nor the averment was at any time taken during the course of the trial before the Civil Court. The suit was filed way back in 1982 and 16 years have elapsed since then. The amendment sought is not only hopelessly belated, but pre-emption was not even claimed on !he basis of alternative submission in grounds of appeal in the first appeal. Moreover, the defendants had no opportunity to meet the same during the course of trial. I am, therefore, of the opinion that the request for amendment made by learned Advocate Shri M.B. D'Costa cannot be granted in the aforesaid circumstances.
10. I shall now deal with the first point of determination. The right of pre-emption is claimed by the plaintiffs under Clause (1) of Article 2309 of the Portuguese Civil Code, true English translation of which is not disputed by Advocates for the parties reads as under :--
"1. In case of sale, private or judicial, accord and satisfaction, emphyteusis, or a lease for period of more than ten years, the owners of the landlocked lands, as also the owners of properties burdened with the respective easement, whatever may be the title under which it was constituted, shall have the first right of pre-emption.".
It provides for right of pre-emption in favour of owners of landlocked lands as also owners of properties burdened with the respective easement in case of sale, accord and satisfaction, emphyteusis or a lease for a period of more than ten years. Therefore, it has to be first found out as to who can be said to be owner of landlocked property. Article 2309 of the Portuguese Civil Code in the opening paragraph states that the owners of landlocked properties are those who do not have communication to public roads. The opening paragraph gives right to owners of landlocked properties to purchase passage over the neighbouring lands to provide such communication to public roads. Where the property has access to the public road, it cannot be said to be landlocked property. The plaintiffs' case is that they are having access through suit Plot No. 5 which they have been using for over 60 years and in fact the Civil Court had come to the conclusion that the plaintiffs have such access through suit Plot No. 5 which they have been using for over 60 years. If that is so, I fail to comprehend as to how the property of the plaintiffs can be said to be landlocked for the purpose of either exercising the right to purchase or to exercise the right of pre-emption as provided under Clause (1) of Article 2309 of Portuguese Civil Code. The right under Clause (1) is given to owners of landlocked properties. The evidence and the findings of the Civil Judge show that the plaintiffs have access through the suit Plot No. 5 which they have been using for over 60 years. Learned Advocate Shri M.B. D'Costa, relying upon the Commentary of author Cunha Gonsalves on the Civil Code has urged before me that the purpose of law incorporated in Article 2309 was to extinguish the easementary rights through the properties which were burdened with such easement. In my view, the primary object behind Article 2309 is to provide communication to the public roads in the case of land-locked properties. Article 2309 contemplates three categories namely,
1. Owners of land locked properties can purchase right of way through neighbouring lands and;
2. In case of sale etc., owners of landlocked properties have first right of pre-emption and,
3. Likewise in case of sale etc., of landlocked properties, owners of properties burdened with respective easement also have first right of pre-emption. Plaintiffs had claimed pre-emption under the second category, which means that in order to exercise right of pre-emption, the property of the pre-emptor should be landlocked. In case of purchase of way under first category or the existence of right of access, such property would no longer qualify to be landlocked property. The right of access for 60 years through the suit plot claimed by the plaintiffs has been recognised by the Court. Therefore, in my opinion, the plaintiffs' property cannot be said to be landlocked within the meaning of Article 2309 so as to entitle them to claim right of pre-emption. Plaintiffs had never claimed pre-emption on the ground that their property under Survey No. 110/1 was burdened with easement so as to entitle them to exercise right of pre-emption under the third category.
11. In view of the above, I am of the opinion that in the facts and circumstances of the case, plaintiffs are not entitled to exercise the right of pre-emption on the basis of the case pleaded by them in the plaint.
12. The second point of determination though now it becomes academic in view of the findings on the first point of determination, yet I would like to point out that notice of sale is required to be given in writing which was not given by the defendants and the evidence led by the defendants on the question of oral notice was rightly and for very valid and justifiable reasons rejected by the Civil Court. Obviously, the theory of oral notice could not be believed in view of the fact that admittedly from 1974 onwards the relations between the plaintiffs and defendants No. 1 to 13 were strained and in view of the same it is difficult to accept that oral notice was given by the defendants to the plaintiffs.
13. Accordingly, findings in respect of issue No. 3 are well founded and cannot be disturbed.
14. For the aforesaid reasons, the appeal is allowed on account of the decision on the first point of determination. It is held that the plaintiffs in the facts and circumstances of the case had no right of pre-emption as claimed by them under Clause (1) of Art. 2309 of Portuguese Civil Code as a result of which the plaintiffs' suit is liable to be dismissed. The appeal is accordingly allowed. The order of the Civil Court decreeing the suit is set aside and the plaintiffs' suit is ordered to be dismissed. In the facts and circumstances I would leave the parties to bear their costs.
15. Learned Advocate for the appellants had stated that they shall not interfere with three meters passage shown in green in the plan filed in Misc. Civil Application No. 59/92 in this Court which is access for the plaintiffs to pass through suit Plot No. 5. Accordingly, the said undertaking given by learned Advocate for the appellants on behalf of the defendants is accepted and the appellants shall not interfere with the said access of three meters shown in the survey plan filed in this Court in Misc. Civil Appln. No. 59/92. Moreover, the plaintiffs' suit has been dismissed in view of the findings of the lower Court regarding the existence of the said access for over 60 years. Accordingly, the defendants/appellants shall maintain the said access and shall not cause any obstruction in the use of the said access by the plaintiffs.
Stay granted on 13-7-90 is hereby vacated.
16. Appeal allowed.