MARIANO S J GODINHO Vs. GEORGE SEVERINO DMELO

JUDGEMENT

(1.) The petitioners plaintiffs have challenged the refusal of the court below to delete the Issue No.4, which reads as under:

(2.) The petitioners plaintiffs have sued the defendants for removal of encroachment. According to them, the defendants have constructed a portion of their house on the plaintiffs property. In the written statement interalia the defendants have contended that they are Mundkars. Apparently, therefore the aforesaid issue was framed. However it is that issue which the court has refused to delete.

(3.) Mr. Diniz, learned counsel for the petitioners submitted that the question of Mundkarship of the defendants in respect of the suit house bearing No. 181 does not arise in the suit at all. The Plaintiffs have come to the court with the case that the defendants have illegally constructed on the plaintiffs property, therefore, whether the illegal construction is an extension of Mundkarial house said to be owned by the defendants or not is not relevant. According to law if the issue is allowed to stand, it will require the reference of the issue to the Mamlatdar under the Mundcar Act. As observed earlier, this is not necessary in the facts of the present case, hence the impugned order is set aside and Issue No.4 is directed to be deleted. Rule made absolute accordingly.