MANUEL CAETANO GONSALVES PATRICIO Vs. ANTONIO BRAGANZA

JUDGEMENT

(1.) THIS petition arises from Order dated 18th July 1998 whereby the trial Court in Regular Civil Suit no. 165/95/C has ordered the deletion of two issues, one, whether the defendant/petitioner proves that the Court lacks jurisdiction to entertain the suit, and the other, pertaining to the claim of agricultural tenancy rights of the petitioner to the suit property.

(2.) THE facts, in brief, relevant for the decision are that the respondent no.1 has filed the said suit for declaration that the respondent no.1 has right in the property bearing survey no. 112/1 of Calapur village pursuant to grant of lease by the respondent no.2 in respect of the said property for the purpose of extraction of stones since 1971 and further for direction to the mamlatdar of Record of rights to register the name of the respondent no.1 in the Other Rights' column in Form I & XIV in respect of the said property as well as for declaration that the petitioner has no right to the suit property and his name form Other Rights' column in respect of the said property be deleted. THE claim of the respondent no.1 is not disputed by the respondent no.2. However, the petitioner who is the defendant no.2 in the suit, has seriously contested the claim of the respondent no.1 and it is the contention of the petitioner that the entire property bearing survey no.112/1 is an agricultural property and the petitioner is lawful tenant in possession thereof since 1966 and in the course of acquisition of some portion of the said property, he had been paid 50% of compensation by the Government on the ground that the petitioner is tenant in respect of the said property. On the basis of the pleadings of the parties, various issues were framed including the following issues as issues nos. 5 and 6 :- "Issue No.5 :- Whether the defendant no.2 proves that this Court has no jurisdiction to try and entertain the present suit ? Issue No.6 :- Whether the defendant no.2 proves that he is an agricultural tenant in possession of the entire Lote No.622 on payment of yearly rent of Rs. 51/- ?" After framing of the said issues, an application dated 19-2-1998 was filed by the respondent no.1 praying for deletion of the above quoted two issues whereas the petitioner had filed another application dated 11-12-1997 requesting that the issue no.5 be referred to Mamlatdar for his decision and till then the suit be stayed. THE trial Court, however, merely referring to the judgment of this Court in the matter of Shri Inacio M. Dias Vs. Palmira Valadares, reported in 1996(3) ALL MR 362, ordered for the deletion of the said issues no.5 and 6 quoted above and dismissed the application dated 11-12-1997 filed by the petitioner.

(3.) CONSIDERING the pleadings of the parties in the suit, it cannot be disputed that, prima facie, the issue regarding the nature of the land as well as the claim of tenancy of the suit property clearly arises in the matter and in that regard the trial Court was justified in framing issue no.6 as it was framed as quoted above. In fact, based on pleadings, the trial Court ought to have framed an issue regarding the nature of the land in the following manner :- "Whether the defendant no.2 proves that the entire property bearing survey no. 112/1 of Calapur village is an agricultural land ?"