1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 93 OF 2009 1. Smt. Conceicao Colaco, 2. Shri Caitano Colaco, 3. Shri Jose Colaco, 4. Smt. Inacina Colaco, 5. Shri Sebastiao Colaco, 6. Shri Sertorio Colaco, 7. Miss Piedade Colaco, residing opposite Chapel, Zoriwaddo, Davorlim, Salcete Goa. ... Petitioners V e r s u s 1. Mrs. Isabel Colaco, House NO.95/1 and 244 (new), Zorivaddo, Davorlim, Navelim, Salcete Goa. 2. Mrs. Philipina Colaco, 3. Mrs. Rosalina Colaco, 4. Mrs. Paulino Colaco, 5. Mrs. Quiteria Colaco, 6. Mrs. Josepha Colaco, wife of Nazareth Fernandes, 7. Mrs. Conceicao Colaco, 8. Mrs. Josepha Colaco, wife of Antonio Figueiredo, 2 9. Miss. Jonet Figueiredo, 10.Mr. Anson Figueiredo, Nos. 2 to 10 residents of Zoriwaddo, Davorlim, Salcete, Goa. 11.Mr. Menino Colaco, House NO.95/1 and 244 (new), Zorivaddo, Davorlim, Navelim, Salcete Goa. 12.State of Goa, through its Chief Secretary, Government of Goa, having office at Secretariat, Porvorim Goa. 13.The Town and Country Planning Department, through Chief Town Planner, Government of Goa, having Office at Dempo Towers, Patto, Panaji Goa. 14.The Senior Town Planner, Town and Country Planning Department, Government of Goa, having office at Osia Complex, Margao, Goa. 15.The Village Panchayat of Davorlim, represented by its Sarpanch/Secretary, having Office at Davorlim, Salcete Goa, 16.The Collector, South Goa District, having Office at Collectorate, Margao Goa. 17.The Deputy Collector and Sub-Divisional Officer, South Sub-Division, Collectorate Building, 3 Margao Goa. 18.The Sub-Registrar of Salcete, Government of Goa, Osia Complex, 2nd Floor, 1st Building, Margao Goa. 19.Mr. Pedro Alvaro Barreto, Flat No.G-6, Amey Apartments, Margao Goa. 20.Clara Fernandes, 21.Rosario Barreto, Both C/o Pedro Alvaro Barreto, Flat G-6, Amey Apartments, Margao Goa. ... Respondents Mr. A. F. Diniz, Advocate for the Petitioners. Mr. G. Shirodkar, Government Advocate for the Respondent nos. 12, 13, 14, 16, 17 and 18. Mr. Arun Bras De Sa, Advocate for the Respondent nos. 1 to 5 and 7 to 10. Coram :- A. H. JOSHI, J. Date :- 5 th AUGUST, 2009. JUDGMENT 1. Rule. Rule is made returnable forthwith and is heard by consent. 4 2. Learned Trial Court had interalia framed issue nos. 1, 2 and 3 as follows :- 1. Do the plaintiffs prove that the plaintiffs are tenants of the suit property ? 2. Do the defendants prove that the Defendants are tenants of properties bearing survey No.30 sub division 2 to 6 and 8 to 11 of Village Davorlim, Salcete Taluka ? 3. Do the plaintiffs prove that the judgment and order dated 22.2.2003 passed in Case No. JM- II/INC/56/1998 and Case No.JM-II/INC/57/1998 are null and void ? 3. On plaintiffs' application trial Court passed order on roznama and directed that the issue nos.1 and 2 be referred to Mamlatdar by order dated 9.11.2008. 4. Petitioners herein are aggrieved by the order dated 19.11.2008 passed by the Trial Court for striking off issue nos. 1 and 2 and referring the issues to the Court of Mamlatdar for hearing and for submission of findings thereon. 5. Prayer (a) contained in the plaint reads as follows :- “(a) That by judgment and decree of this Honourable Court, it be declared that judgment and order dated 22.2.2003, passed in case No. JM-II/TNC/56/1998 and case No. JM-II/TNC/57/1998, by the Joint Mamlatdar -II of Salcete, Taluka be declared as null and void”. 6. Learned Advocate for the respondents was called to point out to the Court the crucial pleadings which are the foundation of the prayer (a). Learned 5 Advocate pointed out that these pleadings are containing paras 22 and 23. For ready reference these pleadings are quoted below :- “22. The plaintiffs state that the order is perverse as no notice was served on the plaintiffs. The order was partial, high handed and arbitrary. 23. The plaintiffs state that a declaration of tenancy was fraudulently obtained as the defendants are not the children of late Francisco Colaco as their own father's name admittedly was Francisco Antonio Colaco. The defendants in order to claim the compensation for land acquisition falsely claimed to be the tenants of the paddy field as the name of their late father nowhere appeared in the survey records”. (Quoted from plaint copy from pages 19 and 20 ) 7. After hearing parties this Court is satisfied that prayer (a) contained in the plaint is the basic prayer and rest of the prayers are ancillary. 8. The declaration as sought is that the decision rendered by the Mamlatdar is null and void and appropriate issue for this purpose is issue no.3. 9. The issue of tenancy can fall open before Mamlatdar only after the declaration as sought in the plaint is granted that too independently and not as an issue in present suit. 10. In these premises, issue nos. 1 and 2 are totally unnecessary and those issues are liable to be struck off, though a prayer for striking off those issues is 6 not made in the writ petition. 11. This Court is satisfied that when such issues are not justified and their continuation on record will lead to further complications. In the interest of proper trial and justice it is necessary to strike off the issue nos. 1 and 2 and also to pass consequential directions. 12. This Court therefore directs as follows :- (1) Rule is made absolute and issues framed in Special Civil Suit No.17/2007/FTC-II by the Ad-hoc District Judge-2, Fast Track – II, South Goa, Margao, being issues nos. 1 and 2 are struck off and further relief in terms of prayer clause (a) is granted. (2) Issues nos. 3, 4 and 5 be renumbered as issue nos. 1, 2 and 3 and suit shall proceed. (3) Parties shall bear their own costs. A. H. JOSHI, J. at*