LAZARUS MARTINS Vs. SHASHIKANT V BANDEKAR

JUDGEMENT

(1.) RULE. The learned counsel for the respondents waives notice on behalf of the respondents. By consent heard forthwith.

(2.) BY this petition, the petitioners challenge the Order dated 21st February, 2004, dismissing the application filed by the petitioners for deletion of issue no.4. The petitioners are plaintiffs and the respondents are defendants in Regular Civil Suit No.134/02/D before the Civil Judge, Junior Division, Margao. The petitioners and the respondents shall be hereinafter referred to as the plaintiffs and the defendants. Briefly the facts which are relevant for the disposal of this petition are as follows: The plaintiffs claim to be owners in possession of property "FONDUBATA'' or 'PANDURANGACHE MADDA'' situated at Cuncolim, Salcete, Goa. In the said property there exists a structure bearing house no.197 (hereinafter referred to as the "suit house"). According to the plaintiffs, the defendants trespassed in the structure bearing house no.197, which compelled the plaintiffs to file the above mentioned suit. The defendants filed written statement contesting the claim of the plaintiffs and the defendants claimed to be mundkars in respect of the said structure and tenants in respect of the said property. On the pleading of the parties, the trial Court on 14th November, 2004 framed four issues. Issue no.4 which is relevant for the purpose of deciding this petition reads as under:-

(3.) MR. Sardessai, learned counsel appearing for the plaintiffs, submitted that he is restricting his challenge to the issue of tenancy framed by the trial Court only and he is not challenging the issue of mundkarship framed by the trial Court. According to the learned counsel, since the suit was in relation to the suit house only and not in respect of the said property, no issue could have been framed by the trial Court in respect of the said property, as claimed by the defendants. According to the learned counsel, the trial Court has exercised jurisdiction illegally by dismissing the said application insofar as the issue of tenancy is concerned. To that extent, according to the learned counsel, the impugned Order discloses error of law apparent on the face of the record. According to the learned counsel, having regard to the reliefs claimed by the plaintiffs, no issue of tenancy could have been framed by the trial Court.