CANDIDO JOSE CAETANO CARDOZO Vs. VIJAY CONSTRUCTION COMPANY

JUDGEMENT

(1.) BY this Writ Petition the Petitioners have challenged the order dated 6.9.2001 passed by Civil Judge Senior Division, Margao, in Special Civil Suit No. 220/87/I by which the objections taken by the Petitioners to the commissioner's report have been dismissed.

(2.) THE respondents filed the above suit against the petitioners seeking decree of partition of the suit properties bearing survey numbers 246/7 and 246/8. The suit was contested. The Trial Court framed the issues after appreciating the evidence led by the parties. The Trial Court by judgment and order dated 30.9.2000 partly decreed the suit. The operative part of the order reads thus:- The suit filed by the plaintiffs is partly decreed with costs. The plaintiffs' portion i.e. 2/3rd shall be partitioned and separated from the remaining 1/3rd belonging to the defendants out of survey No.246/7 and 246/8 by metes and bounds. Preliminary decree be drawn accordingly.

(3.) PER contra, Mr. M. S. Usgaonkar, the learned Senior Counsel appearing for the respondents submitted that no revenue is paid in respect of the suit properties and therefore Order 20 Rule 18 of CPC is not attracted. Mr. Usgaonkar further submitted that the petitioners were present at the time of demarcation and did not object to the commissioner effecting partition of the properties and this is an additional ground on which the petitioners should not be permitted to challenge the order on the ground that the commissioner had no authority to carry out the partition. According to Mr. Usgaonkar, the commissioner had to effect the partition in terms of operative part of the order and the order having not been challenged, the petitioners are not entitled now to contend that the northern portion ought to have been allotted to the petitioners. According to Mr. Usgaonkar, the conduct of the petitioners clearly disentitles them from invoking extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.