MALU GAONKAR Vs. GILMAN FERNANDES

JUDGEMENT

(1.) THIS Writ Petition is directed against the order dated 31.10.2013 passed by the Civil Judge, Junior Division, ''F '' Court Margao, in Regular Civil Suit No. 88/2009/F, thereby allowing the application filed by the respondents/ plaintiffs under Order 6 rule 17 read with Section 151 of CPC for amendment of the pleadings in the plaint.

(2.) IT is the case of the respondents that they are owners in possession of the suit property bearing survey nos.72/2, 72/3, 72/4 of village Cuncolim, Salcete, Goa, this property having being purchased by them vide sale deed dated 11.12.1975 from one Mrs. Maria Anuciacao Ormezinda Furtado. The Respondents have submitted that sometime in the year 1988 when land acquisition proceedings in respect of the portion of the said property were going on, it was discovered by them that one Malu Gaonkar of whom present petitioners are the legal heirs, had conspired with one Cristovam Furtado to collect from the Government, the compensation payable to the owner of the land. For the said purpose Cristovam Furtado got his name recorded in survey records as owner of the suit property and got name of Malu Goankar entered in the said column as tenants. Respondents further submitted that said Cristovam Furtado and Malu Goankar very well knew that Malu Goankar had never cultivated any portion of the suit property and illegally got recorded himself as tenant of the said land and that Cristovam Furtado was never the owner of the said land. Therefore, the respondents have filed a civil suit against the petitioners for a declaration that the petitioners never cultivated the suit land as tenants and also for a direction that that entries in the survey records be quashed and set aside. The petitioners have denied the said contentions of the respondents by filing their written statement. They have submitted that late Malu Gonkar and late Shankar Gonkar were brothers and were jointly cultivating the suit property as tenants. They have taken a preliminary objection as regards the jurisdiction of the Civil Court to try and entertain the present suit contending that the issue of tenancy cannot be decided by a Civil Court.

(3.) SUBSEQUENTLY , thereafter, the preliminary objection taken by the petitioners as regards lack of jurisdiction of the Civil Court to entertain and try this suit was decided by the learned Civil Judge by his order passed on 31.7.2012. He rejected the application. Petitioners preferred a Writ Petition bearing No.410/2013 against that order which came to be disposed of on merits by learned Single Judge of this Court on 14.8.2013. It was observed that it would be appropriate and in the interest of justice to keep the issue with regard to the jurisdiction of the Court as raised in the suit open to be considered by the learned Judge at the time of final disposal of the suit on merits. It was also observed that the learned Judge of the Civil Court would not be influenced by any of the observations made in the order against which Writ Petition was filed while considering the aspect as regards lack of jurisdiction of the Civil Court to try the suit.