- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO. 773 OF 2010. 1 Wilson Themudo, aged 35 years, son of Antonio J. Themudo; and his wife, 2 Tracy Fernandes e Themudo, aged 28 years, daughter of Rafael Fernandes, Both residents of House no. 1027, Modsai, Margao, Goa, rep. by Attorney Eusebio Braganca, H. No. 583, Raia, Goa. …....... Petitioners. Versus 1 Mr. Nascimento Fernandes, aged about 65 years, House no. 295, Modsai, Margao, Goa; and his wife,( deceased) 2 Mrs. Cristalina (Irene) Fernandes, aged about 60 years, House no. 295, Modsai, Margao Goa. …....... Respondents. Mr. C. Mascarenhas, Advocate for the petitioners. Respondent no. 1 expired. Mr. D. Pangam, Advocate for respondent no.2. - 2 - CORAM :- A. P. LAVANDE, J. DATE : 24 th March, 2011. ORAL JUDGMENT : Heard Mr. C. Mascarenhas, learned Advocate for the petitioners and Mr. D. Pangam, learned Advocate for respondent no.2. 2. Rule. By consent heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners take exception to two orders dated 17.8.2010 passed by the IIIrd Additional Civil Judge Senior Division, Margao Goa in Special Civil Suit No. 57/2008/III by which application dated 12.1.2010 filed by the respondent no. 2 has been allowed and another application of the same date filed by the petitioners/plaintiffs has been dismissed. 4. The petitioners who are the plaintiffs filed suit seeking reliefs of recovery of possession in respect of the structure styled as shop no. 1111/1028 situated in Chalta No. 36/138 of City - 3 - Survey Margao and also for compensation. Respondents/ defendants filed written statement and inter alia claimed mundkarship. 5. On the basis of the pleadings, the trial Court framed following issues:- 1 Whether the plaintiffs prove that the plaintiff No. 1 permitted the defendants to reside in half constructed shop premises till they were in a position to obtain another dwelling house? 2 Whether the plaintiffs are entitled to evict the defendants from shop No. 11/1028 situated in Chalta No. 36/138 of City Survey Margao? 3 Whether the plaintiffs are entitled for compensation of Rs.2,000/- per month with interest at the rate of 10% per annum by way of mesne profit from the date of institution of the suit till the defendants are evicted from the structure bearing shop no.11/1028 in Chalta No.36/138 and till the time of handing over the peaceful possession of the same to the plaintiffs? 4 Whether the defendants prove that the plaintiff No. 1 got the property transferred in his name without the knowledge and consent of the defendants and by playing fraud on the mother/mother in law of the defendants as such the deed of sale and the deed of rectification is null and void? - 4 - 5 Whether the defendants prove that the house and the property appurtenant to the house was originally a mundcarial house of the defendants parents? 6 Whether the defendants prove that the suit is bad for non joinder of necessary parties? 7 Whether the defendants prove that suit is barred by law of limitation? 8 What relief? What Order? 6. On 12.1.2010 the defendants filed an application for recasting of issue no. 5 as follows:- Whether the defendants prove that they are mundkars of the house bearing No. 295(old) and 322( new)? 7. On the same day plaintiffs filed another application seeking deletion of issue no. 4 and 5. By two separate orders learned trial Court allowed the application filed by the defendants and dismissed the application filed by the plaintiffs. 8. Aggrieved by the said two orders the plaintiffs have filed present petition. - 5 - 9. Mr. C. Mascarenhas, learned Counsel for the petitioners submitted that the learned trial Court has not considered the pleadings of the parties in the proper prospective and has mechanically framed issue no. 5 which actually does not arise on the basis of the pleadings of the plaintiffs and the defendants. According to Mr. Mascarenhas, the defendants have not laid foundation for recasting of issue no. 5 as sought by the defendants and granted by the learned Trial Court. According to Mr. Mascarenhas, having regard to the pleadings of the parties, the issue no. 5 as recast does not arise. Mr. Mascarenhas, further submitted that the learned Trial Court has not even dealt with the judgments relied upon by the plaintiffs in support of their case that issue no. 5 does not arise in the suit. Mr. Mascarenhas, further submitted that in order to frame issue of mundkarship, the defendants in a suit has to lay foundation which has not been done in the present case. Mr. Mascarenhas, further submitted that pleadings of the defendants do not disclose all the ingredients mentioned in definition of “Mundkar”, and therefore learned trial Court has erred in recasting issue no. 5. In support of his submissions learned Counsel placed reliance on the Judgments - 6 - in Mitra of Archdiocese of Goa and Daman, 1999(2) Goa L. T. 97, Sadanand Vithal Naik and ors Vs. Rashmi Dinesh Naik, 2010(40 Bom. C. R.688 and Porbuko Uma Mandrekar and others Vs. Wencesslay Alex D'Silva and ors., 2005(1) Goa L. R. 173. 10. Per Contra, Mr. D. Pangam, learned Counsel for respondent no. 2 submitted that learned trial Court has correctly recast issue no. 5 and therefore no interference is called for with the impugned orders. 11. I have carefully considered the rival submissions and perused the record and the judgments relied upon. 12. In the case of K. Vijayadharan( supra), learned Single Judge of this Court has observed that a party who seeks to raise a plea of mundkarship has to disclose all the ingredients of definition of “mundkar” as defined under Section 2(p) of Goa Daman and Diu Mundkars ( Protection from Eviction) Act, 1975. - 7 - 13. Perusal of the impugned orders discloses that the learned trial Court has not specifically dealt with issue as to whether prima facie all the ingredients of “munkar” have been made out by the defendants so as to recast issue no. 5. In my considered opinion trial Court ought to have undertaken this exercise before deciding the application filed by both the parties in so far as issue no. 5 is concerned and recasting thereof. Therefore, in my considered opinion impugned orders dated 17.8.2010 passed by the learned trial Court in so far as issue no. 5/and deletion of issue no. 5 is concerned deserve to be quashed and set aside. 14. In the result, therefore, impugned orders to the extent the trial Court dismissed the application filed by the plaintiffs for deletion of issue no. 5 and allowed the application of defendants for recasting issue no. 5 is concerned are quashed and set aside. The Trial Court to decide the applications to this extent only after considering the judgments in the case of K. Vijayadharan, and all other judgments that may be cited by both sides. 15. It is made clear that I have not expressed any opinion - 8 - on the merits of rival claims and all the contentions of the parties are kept open. 16. In the result therefore, Rule is made partly absolute in the aforesaid terms with no order as to costs. A. P. LAVANDE, J. vn*