IN THE HIGH COURT OF BOMBAY AT GOA PANAJI APPELLATE SIDE WRIT PETITION NO. 409 OF 2003 1. Dr. Mariano S. J. Godinho 2. Mrs. Elizabeth Godinho both residing at House No. 72, Calata – Majorda, Salcete – Goa ......Petitioners V e r s u s 1. Mr. George Severino D'Melo 2. Mrs. Adelina D'Melo both residing at Udi, Behind State Bank of India, Vasco da Gama, Goa ......Respondents Mr. A. F. Diniz for the Petitioners. CORAM : S. A. BOBDE, J. DATE : 31 st March, 2008. ORAL JUDGMENT : 1. The petitioners – plaintiffs have challenged the refusal of the court below to delete the Issue No.4, which reads as under: “Whether the defendant No.4 proves that the defendant is the Mundcar of the suit house bearing No. 181 the alleged suit shed which was constructed with due permission of the late father of the plaintiff admeasuring 65 sq. mtrs.? 2. The petitioners – plaintiffs have sued the defendants for removal of encroachment. According to them, the defendants have constructed a portion of their house on the plaintiffs property. In the written statement interalia the defendants have contended that they are Mundkars. Apparently, therefore the aforesaid issue was framed. However it is that issue which the court has refused to delete. 3. Mr. Diniz, learned counsel for the petitioners submitted that the question of Mundkarship of the defendants in respect of the suit house bearing No. 181 does not arise in the suit at all. The Plaintiffs have come to the court with the case that the defendants have illegally constructed on the plaintiffs property, therefore, whether the illegal construction is an extension of Mundkarial house said to be owned by the defendants or not is not relevant. According to law if the issue is allowed to stand, it will require the reference of the issue to the Mamlatdar under the Mundcar Act. As observed earlier, this is not necessary in the facts of the present case, hence the impugned order is set aside and Issue No.4 is directed to be deleted. Rule made absolute accordingly. (S. A. BOBDE, J.) skc