Section 2301

Amendment status not verified — confirm the current text below against the official source.

§ 3 – If the value given is less, the construction works cultivation or plantation shall belong to the owner of the land with the duty to compensate the person who has done the same for the value which they may have at the stage of eviction. Article 2307 – Construction or plantation in bad faith in the land of another – If in bad faith construction, cultivation or plantation is carried out in the land of another, the owner of the land may demand that this plantation, cultivation or construction be removed and the land be restored to its original condition at the cost of the person who has done it. However, if the owner of the land prefers to retain the construction, cultivation or plantation he may do so by paying to the person who has done the same their value which they may have at this stage or that of the materials and the labour put into it, as he may want. 484 Article 2308 – Acquisition of trees belonging to another in own property – The owner of property in which there are trees belonging to another may acquire the same paying their value except if by contract he has agreed to retain them in the ownership of another for a certain number of years which shall not exceed thirty. CHAPTER III RIGHT OF ACCESS OR PASSAGE Article 2309 – Easement of passage by operation of law – The owners of land locked properties, that is, those which do not have any access to the public roads, may demand way or passage through adjoining properties, by compensating for the loss which they may cause by reason of this passage. When, however these properties are of the kind mentioned in Article 456, the concerned owner may avoid these obligations by acquiring the landlocked property for the price that may be fixed judicially after previous valuation. § 1 - In the case of sale, private or through Court, gift for payment, emphyteusis or lease for a period above 10 years the owners of land locked properties as also the owners of properties and encumbered with the respective easement, whatever may be the source of title, shall have the right of first preference. § 2 - In the case of judicial auction the provisions of Article 848 of the Code of Civil Procedure, shall be observed and the administrator or the decree holder shall indicate the names of the owners of the servient properties in order to notify the same. § 3 - In order to exercise the Right of preference in other cases the said owners should be notified under Article 641 of the Civil Procedure Code and in the absence of notification, they may exercise the right conferred on them in terms of Article 1566 paragraph 4. § 4 - In case more than one owner turns up claiming such a right, auction shall be held among them and the highest value obtained shall revert in favour of seller. § 5 - In case there is more than one owner with right of preference none of them shall be entitled to exercise his right judicially without prior notification to the others in terms of article 641 of the Code of Civil Procedure and in case of any of those notified comes forward to exercise his right of preference licitation shall be opened among those claiming preference, and said right of preference shall be adjudicated to the one who offers the highest price and who, within 3 days, 485 shall deposit in favour of the seller the excess over the original price of the contract and pay within 30 days the corresponding stamp duty.  Article 2309 held not repealed in Shri. Karl Fernandes vs. Reginaldo T.C. D’Souza & others (1997(1) Goa L.T. 81. Article 2310 – Location of the passage – Passage shall be given through the side causing minimum disadvantage to the owners of the servient properties. Article 2311 – Transfer of land locked property by one of the adjoining owners – If the landlocked property is transferred by any of the owners of adjoining properties through which passage may be given, the duty to provide easement shall preferably be cast on the property or properties of the one who effects the transfer. § Sole paragraph – If the land locking of the property results from partition due to non- observance of Article 2143, the easement shall be through the property or properties of which the land locked property was a part. Article 2312 – Content of the Right of Easement – The person who acquires the right of access does not have ownership of property but only an easement which shall be regulated by the provisions of Articles 2267 to 2285. Article 2313 – Cessation of easement – The duty to provide passage may cease on application of the owner of the servient property, in case the need for easement ceases, or if the owner of the dominant property in any manner has the possibility of equally convenient access to the public road through his own land. § Sole paragraph – The provision of the article is applicable to the accesses of passage whatever might have been the source of their acquisition in case there has been a compensation it shall be refunded by the one who is freed from encumbrance. Article 2314 – Right of access or transit – If it is indispensable for the purpose of repairing a building, to erect scaffolding, place any object on the property of another or carry construction materials through the same, the owner of the said property shall be bound to consent provided he is compensated for any loss thereby caused to him. In case of refusal or objection without just 486 cause, he shall be liable in damages and compensation and the permission shall be made good by the court within the period of 10 days.  Article 2314 held repealed in Eulalia Rodrigues vs. Gurudas Raikar (1999) (2) Goa L.T. 199. TITLE VI RIGHT OF TRANSFORMATION CHAPTER I GENERAL PROVISIONS Article 2315 – Right of transformation - The right of transformation includes power to modify or alter in any manner in full or in part or even destroy one’s own thing. § Sole paragraph – This right belongs to the owner of the thing whether mobiliary or immobile. Article 2316 – Limits to the rights of transformation - The Right of transformation may only be limited by the will of the owner or by provision of law. CHAPTER II RESTRICTION ON PROPERTY FOR THE PROTECTION OF PROPERTY OF OTHERS SECTION I PLANTATION OF TREES AND BUSHES Article 2317 – Plantation of trees and bushes – Plantation of trees and bushes is lawful at any distance from the boundary dividing the adjoining property from the property in which the plantation is made but the owner of the adjoining property may pull out and cut the roots which enter into his property and the branches spreading out over it provided he does not cross the vertical dividing line by cutting the said roots or branches and if the owner of the tree, on request, does not do it within three days. 487 Article 2318 – Plucking of fruits – The owner of the tree or bush adjoining or contiguous to the property of another has the right to demand that the owner of the said property allow him to collect the fruit which cannot be collected from his side; but he is liable for any damages that this may cause. Article 2319 – Ownership of trees along the boundary line – In case the ownership of trees or bushes along the boundary line is disputed they shall be presumed to be owned in common till the contrary is proved. Article 2320 – Uprooting of common trees or bushes – If any of the owners of trees or bushes owned in common wants to uproot the same the other shall not be entitled to object but shall be entitled to half of the value of trees or bushes or half of the firewood or wood of the tree as may be convenient to him. § 1 - If however the tree or bush serves as a dividing mark it cannot be uprooted except by mutual consent. § 2 - The tree or bush removed may not be replaced by another except by mutual consent. § 3 - The fruits of the tree or bush owned in common and the expenses for its cultivation shall be shared in terms of article 2175 onwards. SECTION II EXCAVATION Article 2321 – Right to dig mines or excavation – An owner may dig in his property mines or wells or make such excavations as he may deem fit subject to the following provisions. Article 2322 – Limitations to the above rights – No owner without the consent of his neighbour may extend the mines or excavation made by him beyond the vertical boundary line. Article 2323 – Restriction on the right to make excavation – No one shall, in his own property, be entitled to open wells, holes, drains, canals for drainage along the wall, whether common wall or wall belonging to another without maintaining the distance, or doing the works necessary to avoid damage to the said wall. 488 § 1 - In this regard the Municipal and administrative laws and regulations shall be observed. § 2 - As soon as the neighbour suffers damage as a result of the work mentioned above he shall be compensated by the person who does the work except if there has been an express agreement to the contrary. SECTION III CONSTRUCTIONS AND BUILDINGS Article 2324 – Right to construct or build – It is lawful for any owner to erect on his soil any construction, structure or building in conformity with the municipal and administrative regulations and subject to following provisions. Article 2325 – Easement of air and light – The owner who erects a compound wall, or other structure on the border at the far end of his property shall not be entitled to open therein any window, door, nor construct any projection balcony or veranda which opens directly over the adjoining property without leaving between any of these works and the said other property a set back of 1 ½ (one and a half) meter. § 1 - The provisions of this article do not include gaps, loopholes and openings for light and such openings do not prescribe against the neighbour, who, at any time, may raise his house, building a wall even if it prevents the light to the opening. § 2 - In case of two properties which are oblique in relation to one another the distance of 1 ½ (one and a half) metre is measured perpendicularly from the property overlooked till the property or structure newly erected; but if the oblique angle is more than 45 degrees the restriction in this article shall not apply. § 3 - Works executed in violation of the provision of this article prescribe against the adjoining owner in a period of 10 years being easements only of air and light, and the servient owner may at any time raise any building or structure in his own property provided he maintains between the said property and the said work the minimum set back of 1 ½ (one and a half) metre all along the said works. 489 Article 2326 – Properties exempted from the present restriction – The provision of the preceding article are not applicable to properties separated among themselves by any road, way, street, lane, path or other public passage. Article 2327 – Means to avoid dropping of water over adjoining properties – An owner shall build in such a manner that water from the edge of his roof does not drop over adjoining properties leaving a set back of atleast 5 decimetres between the said property and the edge of the roof if he has no other way to avoid the same. SECTION IV COMPOUND WALLS AND COMMON WALLS Article 2328 – Forced sharing of compound wall – Every owner of property adjoining a wall or compound wall belonging to another may acquire common rights therein, in full or in part by paying half of its value and half of the value of the land over which the said wall or compound wall is constructed. § Sole paragraph – But if on this wall or compound wall there are balconies, windows or other openings to which the owner is entitled, the said communion shall take place only if the said owner consents. Article 2329 – Opening of windows in common wall – The owner to whom the wall or common wall belongs may not open therein, slits, openings or windows or make any opening or alteration without the consent of his co-owner. Article 2330 – Construction over common compound wall – Any of the co-owners may build over a common compound wall and insert therein rods or planks provided he does not cross the middle of the wall. § Sole paragraph – If the wall is of single width that is 50 centimetres or less both the owners may use its full width, being however liable to compensate the other owner for any loss. 490 Article 2331 – Raising of common compound wall – A co-owner may also raise the height of the common wall provided he does it at his own cost, and does not build, introduce rafters or beams beyond the middle of wall even if while raising the height he also constructs the other half. § Sole Paragraph – If the wall is of single width the provision of the sole paragraph of the preceding article shall apply. Article 2332 – Right and duty to reconstruct the existing wall– If the compound wall or common wall is not in a condition to bear the load of the increased height, the person who wants to raise the same shall be bound to reconstruct the same at his cost and if wants to increase the width or thickness of the wall, the space for the same shall be utilized from his side. Article 2333 – Forced communion in the raised portion of a wall – A co-owner who has not contributed for the increase in height may acquire co-ownership in the increased portion by paying half of its costs and in the case of increase in width or thickness, one half of the value of the increased space. Article 2334 – Repair and reconstruction of common wall – Repair and Reconstruction of common wall shall be made at the cost of the co-owners in proportion to their respective shares. § 1 - If the compound wall is in the nature of a fence, the expense shall be divided among the co- owners in equal shares. § 2 - If besides the fencing, any of the co-owners derives from the compound wall another benefit which is not common to the other co-owner the expense shall be rateably distributed among them in proportion to the benefit which each one derives. § 3 - If the collapse of wall results solely from any act the benefit of which one of the co-owner derives, only the said co-owner shall be bound to reconstruct or repair it. Article 2335 – Repairs to various floors belonging to different owners – If the different floors of a building belong to different owners and the mode of repair and maintenance is not regulated in their respective title document the following shall be observed:- 491 § 1 - The common wall and roofs shall be repaired by all in proportion in which it belongs to each one. § 2 - The owner of each floor shall pay the expenses of repair of his floor and ceiling. § 3 - The owner of the first floor shall pay the expenses for repair of the staircase which he uses; the owner of the second floor shall pay the expenses for repair of the part of the stair case which he similarly uses beginning of the landing of the first floor and so on. Article 2336 – Ownership of boundary wall – When there is a doubt as to whether the compound wall or the wall separating two buildings is common or not, it shall be presumed to be common in its full height if the buildings are of equal height and the height of the lower building if they are not of equal height, unless the contrary is proved. Article 2337 – Presumption of communion – The compound walls between open plots of land or between the compounds or yards of buildings are presumed to be in common ownership unless there is proof or indication to the contrary. § 1 - The following signs shall exclude the presumption of communion. (1) If the edge of the roof is slanting towards only one side. (2) If the wall in its full length supports any building or construction which is only on one side or on the property of only one adjoining owner. (3) If there are projections or designs of stone on only one side along the full length of the wall. (4) If the adjoining property does not have compound wall of the same type along the other side. § 2 - In the case of no.1 it shall be presumed that the wall belongs to the one on whose side the slope lies, in the other cases the wall shall be presumed to belong to the one on whose side the construction or indications mentioned are to be found. SECTION V CONSTRUCTION OF STORAGE DEPOSITS FOR DANGEROUS SUBSTANCES AND OTHER SIMILAR CASES 492 Article 2338 – Construction of soak pits along common wall or neighbouring wall – Whoever wants to open any septic tank, soak pits or sewage drain along any wall whether common or belonging to another; or constructs along the said wall any chimney, fireplace, cooking place or place for storage of salt or of any corrosive substance or that which produces damaging flow shall be bound to maintain the set back and take such precaution and preventive measure as may be laid down by local or special laws and regulations but if there are no such regulations or laws the concerned person may require that all such precautions be taken as may be declared necessary by experts. TITLE VII RIGHT OF EXCLUSION AND DEFENCE Article 2339 – Right of exclusion and defence – An owner of property shall be entitled to enjoy the thing held by him to the exclusion of every other person and to employ for this purpose all the means not barred by law; this right shall include the right of demarcation, enclosure and defence. CHAPTER I RIGHT OF DEMARCATION Article 2340 – Right of demarcation – The owner as also the usufructuary or possessor in his own name has the right to compel the owner of adjoining property to contribute for the demarcation of respective boundaries between his property and theirs. Article 2341 – Basis of demarcation – Demarcation shall be made in accordance with title documents of each one and in the absence of documents of title sufficient for this purpose in terms of the possession of the adjoining owners. Article 2342 – Demarcation in case the title or possession is not sufficient – If the title documents do not show the boundary and the area belonging to each owner and the question cannot be resolved by the possession or by other means of proof before the competent court, the demarcation shall be made by distributing the land in dispute in equal parts. 493 Article 2343 – Title document in conflict with the area of the land – If the documents of the title of adjoining owners taken together indicate an area bigger or lesser than the one which the totality of land covers, the excess or the short fall shall be allotted proportionately to the share of each one. Article 2344 – Mistake in fixation of boundary marks – If the boundary marks have been placed based on a common title document not disputed by the parties, and if there is an error in their fixation, the error shall be corrected and objection on the ground of prescription shall not be available. Article 2345 – Right to demarcation not subject to prescription– The right to seek demarcation is not subject to prescription, subject however to the right of prescription in respect of the property itself. CHAPTER II RIGHT TO ENCLOSE PROPERTY Article 2346 – Right to enclose property – Every owner of property may enclose the same by a wall, by a trench or ditch, any kind of fence or by any other means in accordance with the provisions of this section. Article 2347 – Opening of trenches or ditches around property– A property owner who proposes to dig a trench around his property shall retain a border of soil with the width equal to the depth of the trench and if he wants to dig a canal he shall provide for the flow of the water outwards, subject in either case to any local custom or usage to the contrary. Article 2348 – Canals and water outlets presumed to be held in common – The canals and water outlets between the properties of different owners not conforming to the requirements of the preceding articles shall be deemed to be held in common unless there is any proof or indication to the contrary. 494 Article 2349 – Indications that holding is not in common – Where a canal or water outlet has no external border and the mud of the excavation or cleaning thereof is dumped only on one side for more than one year, it shall be presumed that the canal or outlet belongs to the owner on whose side the mud is kept. Article 2350 – Conservation and cleaning of common canal – The conservation and cleaning of a canal or water outlet held in common shall be regulated by the provisions of Article 2178. Article 2351 – Presumption regarding ownership of fence of living plants – If two properties are separated by a fence or hedge of living plants, it shall be presumed that it belongs to the one who needs it the most and if both are in the same situation it shall be taken to be common, if there is no local custom by which the ownership of such fences is decided. Article 2352 – Conservation and replanting of common fence – A common fence shall be conserved and replanted at the cost of the joint owners in terms of Article 2178. Article 2353 – Raising of wooden fences and hedges – Wooden fences or “stockades” may be placed on the limits of properties, provided they are not inclined beyond perpendicular line drawn from the dividing line; hedges may not be planted without boundary marks being placed to identify the property from the neighbouring properties line, either by agreement or by way of demarcation through Court. CHAPTER III RIGHT OF DEFENCE Article 2354 – Right of defence – Every owner of property has right to defend his property, repelling the use of force by force or taking recourse to competent authority. Article 2355 – Bar on new work – If the violation arises from some the new work started by somebody, the person offended may take preventive measures and secure his right, by seeking preventive injunction against the proposed new work. 495 TITLE VIII RIGHT OF RESTITUTION AND COMPENSATION OF VIOLATED RIGHTS Article 2356 – Right of restitution and compensation of violated rights – Every person whose property or rights are violated or encroached upon shall be restituted and compensated on the terms declared by the present Code and the Code of Procedure. TITLE IX RIGHT OF ALIENATION OR TRANSFER Article 2357 – Modes of alienation or transfer – An owner may alienate or transfer his property by any of the means by which it may be acquired. Article 2358 – Need for express alienation – Alienation is not presumed except in cases where the law specifically establishes such a presumption. Article 2359 – Primacy of right of alienation – The right of alienation or transfer is inherent to property and no one can be compelled to alienate or not to alienate except in the circumstances and in the manner laid down by law. Article 2360 – Acquisition for public purpose – The owner of property may be deprived of the same in performance of duty towards another, or the same may be acquired, or he may be deprived of the enjoyment thereof, in full or in part, on the grounds of a public purpose, subject to payment of appropriate compensation. 496 497 PART IV VIOLATION OF RIGHTS AND REMEDIES (Articles 2361 – 2538) 498 499 PART IV VIOLATION OF RIGHTS AND REMEDIES BOOK I CIVIL LIABILITY TITLE I PRELIMINARY Article 2361 – Duty to compensate for violation of the right of another - Whoever violates or infringes upon the rights of another is bound to compensate the wronged person for all losses caused to him.  Articles 2361 to 2403 – This group of sections covers the law of Torts, compensation and damages for which there is no corresponding statutory law in our country. In Torts, we follow English Common Law (Case law). Article 2362 – Mode of violation of rights - Rights may be violated by acts or omissions. Article 2363 – Types of liability for unlawful acts and omissions - Acts and omissions in violation of law may result in Civil or Criminal liability or in both simultaneously. Article 2364 – Concept of Criminal and Civil Liability - Criminal Liability is the duty cast on the person who committed the act or omission, to submit to certain penalties laid down by law, which are the reparation for the damage caused to society in the moral order. Civil Liability is the duty cast on the person who committed the act or omission, to restore the affected person to state prior to the wrong and to compensate for the losses and damages caused to him. Article 2365 – Connection between Criminal and Civil liability - Criminal liability is always accompanied by civil liability; but civil liability is not always accompanied by criminal liability. The cases in which the latter is accompanied by Civil liability are laid down by law. 500 Article 2366 – Heritability of right to compensation - The right to demand compensation as also the duty to pay the same is heritable except where otherwise laid down by law. TITLE II CIVIL LIABILITY CONNECTED WITH CRIMINAL LIABILITY CHAPTER I FIXATION OF RESPONSIBILITY Article 2367 – Principle of self defence - Whoever is assaulted by another by violent acts which may violate his inherent rights or deprive him from the enjoyment of his acquired rights or disturb enjoyment in any manner, is permitted to repeal the force by force, provided he does not exceed the limits of fair defence. Article 2368 – Duty to assist the victim - It is the duty of those witnessing such aggressive acts to help the victim, without exceeding the limits of fair defence of the latter, and if, despite not running risk, they fail to oppose such act, they shall also incur liability for losses and damages. Article 2369 – Determination and assessment of the limits of fair defence - Courts shall assess and decide whether the victim and those who assisted him in defence, exceeded the limits of fair defence. Article 2370 – The legitimacy of self defence - The provisions of Arts. 2367 and 2368 are applicable only when it is not possible for the victim or those who are defending him to approach the public authorities for the purpose of avoiding the present damage or preventing impending damage. Article 2371 – Liability of the persons incharge of public security - Those responsible for the maintenance of public security who, despite being informed permit the abovementioned attempts shall be responsible for the losses and damages jointly with the perpetrators of the offence against whom they shall thereof have recourse. 501 Article 2372 – Joint responsibility of offenders - If the violation of rights is committed by more than one individual, all shall be jointly responsible except for the right of the person who pays for others to recover from them their respective shares. § 1 - These shares shall be proportionate to the criminal liability of each one of the accused if this liability is differently graded. § 2 - This proportion shall be regulated by the Courts in the same act in which the criminal liability is graded if the victim has applied for necessary compensation. Article 2373 – Court having jurisdiction to order civil compensation - Civil compensation or damages connected with criminal liability in terms of Articles 2382 to 2392 shall be claimed in the respective criminal proceedings. In all other cases, the said two liabilities may be claimed separately. Article 2374 – Civil damages to person who was not party to the criminal case - If the victim was not party to the criminal proceedings, he will not be barred from applying for civil damages, but in such case may only avail of ordinary civil remedies. Article 2375 – Security for the right to compensation - The assets of the accused shall be the security for discharging the liability to compensate the damage. Article 2376 – Security for compensation for married offender - If the offender is married, none of the assets of the other spouse whether from the moiety, or not, shall be security for the compensation resulting from the act of the delinquent spouse. Article 2377 – Grounds for exemption from criminal responsibility but not from civil compensation - If the person who causes the damage is acquitted from criminal liability by a reason of complete drunkenness or lunacy, he shall not for these reasons be freed from the liability for civil compensation, unless he is under the guardianship or legal control of another. In such case, the guardian or curator shall be liable unless it is proved that there was no default or negligence on his part. 502 § Sole paragraph – If the guardian or curator is found not liable, the liability of the perpetrator shall subsist. Article 2378 – Limits of compensation in case of a person of unsound mind - In all cases in which there has to be compensation out of the assets of any person of unsound mind, the necessary maintenance and basic needs according to the state and condition of the said person shall always be exempted. Article 2379 – Civil liability of minor - Minority is not relevant for civil liability; but if person who commits the damage on account of his age is not subject to criminal liability, his parents shall be civilly liable for the same or the liability shall devolve on the person under whose care and supervision the guilty person is entrusted unless it is proved that there was no default or negligence on their part. § Sole paragraph – The provision of Article 2377 shall apply in the case of minors. Article 2380 – Liability for damages caused by employees or agents - Where damage is caused by servants or persons entrusted with certain tasks or commission, in the course of the performance of their services or tasks, the said servants or persons, shall be liable alongwith their employers or principals subject to the recourse by the latter against the former when they have exceeded the orders or instructions given to them. Article 2381 – Damages caused in guest houses or hotels - If damages are caused in Guest Houses or Hotels or in such other places where accommodation is provided for consideration, the owners of the establishment shall be jointly liable if the damages are caused by a person whom they have provided accommodation without following the police and other legal regulations and guidelines. CHAPTER II DEGREE OF LIABILITY ARISING FROM CRIMINAL ACTS Article 2382 – Types of damages - Damages resulting from an offence may relate to primary rights or acquired rights. 503 Article 2383 – Violation of primary rights and acquired rights - Damages which arise from the violation of primary rights may relate to physical personality or moral personality; while damages relating to acquired rights relate to external material interest. Article 2384 – Compensation in case of voluntary homicide - Compensation of losses and damages in cases of homicide committed voluntarily shall consists of the following:-