Indian Kanoon - Search engine for Indian Law

28. He also says that there is no need to plead law of easement in the pleadings. Mr. Coelho Pereira has naturally stated so in view of the point raised by Mr. Kakodkar on behalf of the petitioners that the original plaintiffs cannot be permitted to invoke the provisions of the Civil Code (Portuguese) in the present suit. In fact, Mr. Kakodkar had urged that the suit having been filed much after the enforcement of the Indian Easements Act, the case of the parties must be governed by the provisions of the Easements Act. He had secondly contended that if the original plaintiffs were claiming any right under the articles of the Civil Code then they had to specifically state so in the pleadings and lastly he had contended that when one reads the entire pleadings in this case, it is as if the original plaintiffs have laid their claim by invoking the provisions of the Indian Easements Act. Prima facie I accept this position. A debate was made before me to which I have already made reference earlier qua repeal of the provision relating to easements contained in the Civil Code (Portuguese) as also Mr. Kakodkar's submission that Article 2309 stands repealed although there is no corresponding provision available under Indian Easements Act because it is against the constitutional conscience. I again maintain that it is not necessary to decide this question in this case as also what is saved with the extension of the Indian Easements Act as from 1st November, 1978.