SUNANDA NARAINA GAONKAR Vs. RAJAN CHERIAN

JUDGEMENT

(1.) The appellants are original plaintiffs in Special Civil Suit No.4/2002. The plaintiffs instituted the said suit for declaration, permanent injunction and for recovery of possession of the suit property. It is the case of the plaintiffs that at Village Surla, Sanguem Taluka , there exists a property known as BORIAL which has also got some other names as described in para (1) of the plaint. It is the case of the plaintiffs that the defendants No.1 to 33 are not the absolute owners of the disputed property and that the said defendants have acquired 50 % right and share in the suit property through their ancestors. The plaintiffs have also challenged the sale deed executed by defendants No.1 to 33. The said suit was resisted by the defendants on various grounds. The learned trial Judge, thereafter, framed 7 issues arising out of the pleadings. However, without recording oral evidence, arguments of the Advocate for the parties were heard by the learned trial Judge and the learned trial Judge dismissed the suit on the ground that the suit is not maintainable in the absence of inventory proceedings upon the death of Rama Apa Gaonkar. The learned trial Judge, without trying other issues, dismissed the suit only on the basis of issue No.3. It is the aforesaid decree which is challenged by the present appellants/org. Plaintiffs.

(2.) The learned Counsel for the appellants/original plaintiffs submitted that there are various other reliefs claimed in the suit and, therefore, the trial Judge was not justified in dismissing the suit, as if the same was disposed of on the basis of a preliminary issue. The learned Counsel for the appellants submitted that opportunity should have been given to lead oral as well as documentary evidence. The learned Counsel Shri Amonkar appearing for the original defendants submitted that since no finding is given on other issues, though framed based on the pleadings of the parties, he has no objection if the suit is remitted to the trial Court for deciding afresh, after giving opportunity to the parties to lead evidence oral as well as documentary on all issues, including issue no No.3, as the suit is decided only on consideration of issue No.3 which was not even framed as preliminary issue.

(3.) In view of the submission on the part of the learned Counsel for the respondents/original defendants and in view of the fact that the learned trial Judge has not recorded oral evidence of the parties and considering the fact that various other issues are framed, in our opinion, the matter is required to be sent back by setting aside the Decree passed by the trial Court.