-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 420 OF 2002 1. Shri Yeshwant alias Vassant Babu Prabhu Dessai, aged 73 years, landlord and his wife. (Deceased) a) Shri Baburao Yeshwant Prabhu Dessai b) Mrs. Anjor Baburao Prabhu Desai, both major, residents of Village Cotombi, Quepem Taluka, Goa. 2. Smt. Nishabai Yeshwant Prabhu Dessai, aged 60 years, landlady, 3. Smt. Satyawati Krishna Prabhu Dessai, (since deceased) landlady, widow of Krishna Yessu Prabhu Dessai, 4. Smt. Sitabai Krishna Prabhu Dessai, aged 68 years, landlady, widow of Krishna Yessui Prabhu Dessai, 5. Shri Anand Krishna Prabhu Dessai, aged 41 years, advocate, s/o. Late Krishna Yessu Prabhu Dessai and his wife, 6. Smt. Meghana Anand Prabhu Dessai, aged 32 years, landlady housewife, 7. Shri Shivram Krishna Prabhu Dessai, aged 37 years, landlord, s/o. Late Krishna Yessu Prabhu Dessai All residents of Village Cotombi, Quepem Taluka Goa. ...... Petitioners -2- V e r s u s 1. Mr. Sebastiao Oliveira, 32 years, agriculturist, s/o. Late Menino Oliveira, and his wife, 2. Mrs. Esperanca Oliveira, aged 28 years, Both residents of Village Cotombi, Bhindimol, Quepem Taluka. ...... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. Prasheen Lotlikar, Advocate for the Petitioner. Mr. N. N. Sardessai, Advocate with Ms. Sudha Pai Kir, Advocate for the Respondents. CORAM: A. P. DESHPANDE, J. DATE: 17 th October, 2008. JUDGMENT Heard. 2. This Writ Petition is directed against an Order passed by the Trial Court in Civil Suit no. 30/94/B dated 26.09.2000 refering the tenancy issue framed to the Mamlatdar for its adjudication. 3. Perusal of the plaint reveals that the plaintiffs have sought declaration that they are the owners in possession of suit property bearing Survey nos. 102/23, 24, 25 and 26 of Village Cotombi of Taluka, -3- Quepem. A further prayer is made for mandatory injunction for demolition and removal of the illegally constructed suit house and for removal of laterite stones, etc. Yet again, reference is made to the above Survey numbers. The next prayer is for permanent injunction against the defendants, their agents and servants, family members and/or relations for being restrained from extending or further constructing and trespassing and/or re-constructing the suit house and encroaching further in the suit property. In the Written Statement, the defendants claim that they are agricultural tenants and have a dwelling house in the suit property. On the basis of the tenancy right, a further plea is raised about want of jurisdiction in the Civil Court to try the issue touching the tenancy. The Trial Court framed the following issue : "Whether the defendant proves that the defendant is agricultural tenant of the suit property?" Further consequential issue came to be framed, which reads thus : "Whether the Court has jurisdiction to try the suit?" 4. After hearing the learned Counsel for the parties for quite sometime, it transpired that the name of the defendant's father, Mr. Menino Oliveira, figured in Form I and XIV of the suit property under Survey no. 102/26. It also transpired and it is not in dispute that in relation to other Survey numbers, there is neither any entry in the Revenue Record nor there is other supporting material to give rise to a triable issue of tenancy. -4- However, as stated hereinabove, the issue of tenancy would arise for determination in regard to Survey no. 102/26. In this view of the matter, the learned Counsel for the plaintiff/petitioner, has fairly submitted that he would not press any prayer in regard to Survey no. 102/26 except the prayer for mandatory injunction for demolition of the alleged illegal structure. The learned Counsel further submits that in tune with this statement, an appropriate application would be moved before the Trial Court seeking necessary amendment in the plaint including the prayer clauses therein so that the suit can proceed without any reference being made to the Mamlatdar. The learned Counsel appearing for the Respondents is agreeable to following this course as suggested by the learned Counsel for the Petitioner. 5. In view of this concession being made available by learned Counsel for the respective parties, the controversy in the present Petition comes to an end and the Petition is rendered infructuous on that count. Accepting the above statement made by the learned Counsel for the Petitioner and the acceptance thereof by the learned Counsel for the Respondent, the Writ Petition is disposed of with no Orders as to costs. 6. In this view of the matter, the issues extracted hereinabove so also the impugned Order need to be quashed and set aside and I, accordingly, proceed to do so. It is made clear that the quashing of the issues extracted -5- hereinabove and the impugned Order is subject to the amendment of the plaint, which the learned Counsel for the petitioner would carry out in the Trial Court as specified in this Order. A. P. DESHPANDE, J. arp/*