1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 86/2005 1. Shri Naraina Madu Gaonkar, alias Naraina Madu Gaonkar,son of Late Madu Nargo Gaonkar, also known as Mahadev Gaonkar, aged about 62 years, married, service,resident of House No.213,behind Cine Vishant, Aquem,Margao,Salcete,Goa, and his wife. 2. Smt.Sunanda Naraina Gaonkar, also known as Smt.Cunda Naique, daughter of Late Vishnu Naik, major of age,married, Housewife,residing at House No.218,behind Cine Vishant, Aquem, Margao, Salcete,Goa. .... ... Appellants. V/s. 1. Smt.Laxmi Rama Gaonkar, wife of late Rama Appa, Gaonkar, major of age,housewife, Residing at House No.100, Boriyal,Sancordem, Taluka, Sanguem,Goa. 2. Smt.Leela Saidev Gauns, alias Leela Saidev Gaonkar, Major of age,housewife, residing at House No.133, Dhangar waddo, Ghoteli No.2,Keri,Sanquelim, Taluka Sattari, Goa. 2 3. Smt.Kusum Saidev Gauns, daughter of Saidev Gauns, c/o. Smt.Saidev Gauns, House No.133, Dhangar waddo, Ghoteli No.2, Keri,Sanquelim, Taluka Sattari, Goa. 4. Ms.Sushama Saidev Gauns, daughter of late Saidev Gauns, c/o.Smt.Leela Saidev Gauns, House NO.133, Dhangar waddo, Ghoteli No.2, Keri, Sanquelim, Taluka Sattari, Goa. 5. Shri Navnath Saidev Gauns, son of late Saidev Gauns, C/o.Leela Saidev Gauns, House No.133, Dhangar waddo, Ghoteli No.2, Keri,Sanquelim. Taluka Sattari Goa. 6. Shri Krishna Rama Gaunkar, son of Rama Gaunkar, major of age,residing at House, No.101,Boriyal, Sancordem, Taluka Sanguem, Goa. 7. Smt.Radhakrishna Gaonkar, wife of Shri Krishna Rama Gaonkar, House No.101, Boriyal, Sancordem, Taluka Sanguem,Goa. 8. Smt.Nali Vassudev Gaonkar, daughter of late Rama Gaonkar, and wife of Vassudev Gaonkar major of age,residing at House, 3 No.100,Boriyal,Sancordem, Taluka Sanguem, Goa and Her husband. 9. Shri Vassudev Gaonkar, major of age,residing at House NO.100, Boriyal,Sancordem, Taluka Sanguem, Goa. 10.Shri Prabhakar Rama Gaonkar, son of late Rama Gaonkar, House No.100, Boriyal,Sancordem, Taluka Sanguem,Goa. 11.Smt. Prabhavati Prabhakar Gaonkar, wife of Shri Prabhakar Rama Gaonkar, major of age, residing at House No.100,Boriyal, Sancordem, Taluka Sanguem,Goa. 12.Shakuntala Anant Gaonkar, daughter of late Rama Gaonkar, and wife of Shri Anant Gaonkar, residing at House No.100, Boriyal, Sancordem, Taluka Sanguem,Goa and her husband. 13. Shri Anant Gaonkar, major of age,residing at House No.100,Boriyal, Sancordem, Taluka Sanguem, Goa. 14.Nanda Rama Gaonkar, son of late Rama Appa Gaonkar, major of age,House No.100, Boriyal,Sancordem, 4 Taluka Sanguem, Goa. 15.Smt.Kalpana Nanda Gaonkar, wife of Shri Nanda Rama Gaonkar, major of age,Housewife, residing at House No.100, Boriyal,Sancordem, Taluka Sanguem, Goa. 16.Shri Prakash Rama Gaonkar, son of Rama Appa Gaonkar, major of age,unmarried, residing at House No.100, Boriyal,Sancordem, Taluka Sanguem, Goa. 17.Smt.Malkumbi Gopal Gaonkar, also known as Malkum Gopal Gaonkar, wife of late Gopal Appa Gaonkar, major of age, residing at House No.102, Boriyal, Sancordem, Taluka Sanguem,Goa. 18. Smt. Jani Shankar Gaonkar, daughter of Gopal Appa Gaonkar, major of age,residing at House No.102, Boriyal,Sancordem, Taluka Sanguem, Goa. 19.Shri Shankar Gaonkar, major of age,residing at House No.102, Boriyal,Sancordem, Taluka Sanguem, Goa. 20.Smt.Leela Vishnu Gaonkar, daughter of late Gopal Appa, 5 Gaonkar and wife of Shri Vishnu Gaonkar, major of age, residing at House No.102, Boriyal,Sancordem, Taluka Sanguem, Goa and her husband. 21.Shri Vishnu Gaonkar, major of age,residing at House No.102,Boriyal,Sancordem, Taluka Sanguem,Goa. 22.Smt.Satyavati Appa Gaonkar, wife of late Appa Gopal Gaonkar, major of age,residing at House No.102, Boriyal,Sancordem, Taluka Sanquem, Goa. 23.Miss Rekha Appa Gaonkar, daughter of late Appa Gopal Gaonkar, residing at House NO.102, Boriyal,Sancordem, Taluka Sanguem, Goa. 24.Miss Sumitra Appa Gaonkar, daughter of late Appa Gopal Gaonkar, residing at House No.102, Boriyal, Sancordem, Taluka Sanguem, Goa. 25.Shri Gopal Appa Gaonkar, son of late Appa Gopal Gaonkar, residing at House No.102, Boriyal,Sancordem, Taluka Sanguem, Goa. 26.Miss Supriya Appa Gaonkar, daughter of late Appa Gopal 6 Gaonkar,unmarried,residing at House No.102, Boriyal, Sancordem, Taluka Sanguem,Goa. 27.Smt. Vatsala Paru Gaonkar, daughter of late Gopal Appa Gaonkar,wife of late Paru Gaonkar,major of age, residing at House No.102, Boriyal,Sancordem, Taluka Sanguem, Goa. 28.Mr.Audhumbar Paru Gaonkar, c/o.Smt.Vatsala Paru Gaonkar, II No.36, Houseside, Kodar,Post Khandepar, Taluka,Ponda Goa. 29.Mr.Rajaram Gaonkar, c/o.Smt. Vatsala Paru Gaonkar, II No.36,Houseside,Kodar,Post Khandepar, Taluka,Ponda Goa. 30.Smt.Prema Tulshidas Gaonkar, daughter of Late Gopal Appa Gaonkar, wife of Shri Tulshidas Gaonkar, major of age, residing at House No.102, Boriyal, Sancordem,Taluka Sanguem,Goa. 31.Shri Tulshidas Gaonkar, major of age,residing at House No.102, Boriyal, Sancordem,Taluka Sanguem,Goa. 32.Smt Shashikala Shashikant Gaonkar, daughter of late Gopal Appa Gaonkar,and wife of Shri Shashikant Gaonkar,major of age,residing at 7 House NO.102,and her husband. 33.Shri Shashikant Gaonkar, major of age,residing at House No.102,Boriyal, Sancordem,Taluka Sanguem, Goa. 34.Mrs.Elsy Jacob, wife of Mr.Cherian Jacob, Puthem,Parayel Konni, P.O.Palhanamlhtta, District Kerala. 35.Mr.Cherian Jacob, Puthem,parayel Konni, P.O.Palhanamlhtta, District Kerala, Unknown heirs of late Cherian Jacob. 36.Shri Rajan Cherian, Puthem,Parayeli Konni, P.O.Palhanamlhtta, District Kerala. ....... Respondents. Mr. C. A. Fereira, and Mr. Suraj Palekar, Advocates for the appellants. Mr. Mahesh Amonkar, Advocate for respondents No.1, 6, 7, 10, 11, 14, 15 and 22. CORAM : P.B. MAJMUDAR & N.A. BRITTO, JJ. DATE : 16th JANUARY, 2009. 8 ORAL JUDGMENT : (Per P.B. MAJMUDAR, J.) 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 9 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 10 opinion, the matter is required to be sent back by setting aside the Decree passed by the trial Court. 4. Accordingly, by consent of the Advocates for the parties, the impugned Judgment, Order and Decree is set aside and the matter is remitted to the Court of Civil Judge, Sr. Division at Quepem for deciding the suit de novo. The trial Court shall allow the parties to lead oral and documentary evidence in support of their case and, thereafter, shall give findings on all the issues framed by it. Since the trial Court has framed various issues and no finding is given on them, except issue No.3, the trial Court should give opportunity to the parties to lead evidence and render findings on the issues framed by it. It is clarified that we have not expressed our opinion on merits and the trial Court's order is set aside only on the ground that the trial Court has not decided all the issues and the finding is given only on issue No.3 for which even no oral evidence was submitted by any of the parties. The trial Court shall now decide all the issues, including issue No.3 afresh and give findings on all issues as per the evidence recorded. Since some of the defendants have not contested the suit, as also this appeal, it would not be proper for this Court to ask the parties 11 to appear before the trial Court on a particular date. The trial Court may, accordingly, inform the parties to appear before it on a specified date and time and shall, thereafter, proceed with the suit, in accordance with law. 6. The appeal is, accordingly, allowed to the extent aforesaid. No costs. P.B. MAJMUDAR, J. N.A. BRITTO, J. ssm