SATYAWATI TUKARAM SALGAONKAR Vs. MAXIMIANO DONATO ZUZARTE

JUDGEMENT

(1.) HEARD the learned Advocates for both the parties. Perused the records. The appellants have filed this appeal against the Judgment and Order dated 29th September, 2001, passed by the Addl. Civil Judge, Senior Division, Mapusa, decreeing the suit of the plaintiff, declaring that the plaintiff is the owner of the properties described as first and third properties. It was further declared that the name of Tukaram Salgaonkar entered in Survey Nos.175/29 and 175/25 was wrongly recorded and hence to be deleted. The suit of the plaintiff in respect of properties numbers second and fourth, however, was held to be dismissed. Further, it was directed that the defendants were required to hand over vacant possession of the suit properties to the plaintiff or the defendants were required to put the plaintiff in possession of the suit properties.

(2.) IN the course of hearing of the appeal, it was transpired that the plaintiff did not press for decree with regard to properties number second and fourth. However, the plaintiff in her evidence, in examination in chief, categorically stated that the suit pertained two properties, namely first and third properties and did lay her claim over the suit properties number third and fourth. For that purpose, the learned trial Judge was of the view that the relief in that regard could not have been adjudicated and accordingly recorded the finding to the effect that � finding withheld� . In fact, he should have recorded the reasons giving reference to the evidence of the plaintiff and recorded his finding either in the affirmative or in the negative and only finding recorded as � finding withheld� is contrary to law. At any rate, such an aspect is not pressed by both the parties, nor should be made issue for dispute in view of the plaintiff� s own evidence.

(3.) IN the result, I hold that the matter deserves to be remanded. Hence, the Judgment and Order passed by the learned trial Judge in Special Civil Suit No. 303/89/Sr/I of the First Civil Judge, Sr. Division, at Mapusa is, hereby, set aside. The trial Court is directed to allow the application for amendment of the plaint and, thereafter, to allow the defendants to file additional written statement, if any, and then allow to raise the issue limited to the purpose of possession of the property and adjudicate the same and then dispose of the suit according to law. All such exercise shall be completed within six months from the date of receipt of writ of this Court. With these directions, the appeal stands disposed of with no order as to costs. It is clarified that pending the suit before the lower Court, the parties shall maintain status quo as of today. Under the circumstances, cross objection stands disposed of with no order as to costs.