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4. The Indian Easements Act was brought into force in the territory of Goa with effect from 1st November, 1978. The law relating to easements prior to this date was contained in the Civil Code (Portuguese) in Title IV Chapter V setting out definition of easements (servidoes) and other aspects.

Article 2309 in a different Chapter (Title V Chapter III) envisages landlocked property. Briefly stated, it provides that an owner of landlocked property which does not have an access to the public road gives such owner a right to demand a passage from the owners of the neighbouring land, however, on payment of the price to be judicially fixed in a proceedings before the Court.

I have made reference to this Article 2309 because a contention has been raised by the Counsel for the petitioners that this Article cannot be now invoked being no more available as from 1st November, 1978, the date on which the Easements Act is brought into force in Goa. In that the contention is that regard being had to the Extension Act read with the provisions of the General Clauses Act all corresponding provisions existing prior to that date stand repealed and that the corresponding provisions need not be identical. It is then pointed out as the preamble itself suggests the Indian Easements Act is an act which defines the law relating to easements and licences and does not make any provision for acquisition of a right over the properties of neighbouring owners in favour of the owners of landlocked property. In this situation, it is urged that barring acquisition of land by the Government on payment of compensation to the owners of any law requiring a neighbouring owner to involuntarily sell right of passage or access to owners of landlocked property is opposed to the constitution and/or to constitutional conscience. I will return to this question if I find it necessary to deal with the same later in the judgment, but suffice for the moment to say that with effect from 1st November, 1978, a claim to easement must necessarily fall within the provisions of the Indian Easements Act and if a party wants to establish any right having acquired by him based on the repealed provisions of the law, then in force or from the saving clauses of any law in force needless to say that such party is bound to plead and show how the relief prayed for is founded thereon.

16. Mr. Kakodkar now says that in fact there is no cause of action in the suit for there is no foundation laid for any acquisition of the easement by prescription by the plaintiffs for it is nowhere pleaded that the plaintiffs were making use of the servient property as easement and as of right, so as to crystallize an easement in favour of the original plaintiffs.

17. Mr. Kakodkar says that there is no question of easement of necessity in the present case because the pleadings themselves suggest that the properties are not landlocked and what is more, the trial Judge on inspection, found that the properties of the plaintiffs are not landlocked.

18. It is indeed true that in the judgment of the trial Court the learned Judge on referring to the inspection conducted by him says that the properties of the plaintiffs are not landlocked. This finding in the judgment of the trial Court is said to be not supported by a memo of inspection. A considerable debate has been made over the subject. The fact is and it is common ground that the trial Court inspected the properties but memo of inspection is not found on the record. Placing reliance on various authorities, Mr. Kakodkar urges that despite the absence of memo of inspection, there is no error in relying upon the inspection carried out by the trial Court and secondly if the evidence on record suggests that in fact the properties of the plaintiffs are not landlocked and access from other places available however inconvenient, nothing can be faulted for the absence of the memo of inspection. Mr. Coelho Pereira, learned Counsel has also relied upon a number of authorities to suggest that the trial Court cannot import its own knowledge even when the trial Court has done the inspection for finally it is the memo of inspection which must form part of the records.