1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 370 OF 2003 1. Shri Candido Jose Caetano Cardozo ( since deceased ) represented by his legal heirs. (i) Mr. Timon George Cardozo, (ii) Mrs. Maria Cardozo, Both residing at 16, Cindrela Coop. Housing Society, Lourdes Colony, Orlem, Malad ( West), Mumbai, 400 064. (iii)Mr. Hermanegild Saude Cardozo, (iv) Mrs. Valerie Estella Cardozo, Both residing at Alka Bhuvan, D/1003, Sainath Nagar, Eksar Road, Borivili (West), Mumbai 400 013. (v)Mrs. Teckla Philomena Dias, (vi) Mr. Hermanegild Dias, Both residing at Agnelo Building, 1st Floor, Opp. Karnataka Bank, Mumbai 400 092. (vii)Mr. Menino Ephifano Cardozo, 2 (viii) Mrs. Maria Cardozo, Both residing at 126, Cavel Street, Bishop's Town, Mumbai 400 002. (ix) Mr. Antonio Ignacius Cardozo, (x) Mrs. Mildred Cardozo, Padma Building, 210, 6-B/202, Padma Nagar, Simpoli, Borivli (West ), Mumbai 400 090. (xi)Mr. Joaquim Anecitus Cardozo, Raia, Dagulai, House No. SO-49, Salcete Goa. 2. Smt. Maria Caetana Jose Cardozo, alias Gracy Cardozo (expired ) by her unknown legal heirs one of whom is the Petitioner No.1 residing as above. .... Petitioners V e r s u s M/s Vijay Construction Company, a partnership firm duly registered under the Indian Partnership Act, 1932, with its Office at House No.21/3, Comba Margao, Goa. Represented by its Partners : 3 1. Shri Anand Sadashiv Mapxenkar, son of late Sadashiv Mapxenkar, aged about 64 years, businessman, residing at House No. 21/3, Comba, Margao Goa. 2. Shri Devdatta Anand Mapxenkar, son of Anand Sadashiv Mapxenkar, aged about 32 years, businessman, residing at House No.21/3, Comba, Margao Goa. .. Respondents. Mr. A. F. Diniz, Advocate for the Petitioners. Mr. M. S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar, Advocate for the Respondents. Coram :- A. P. LAVANDE, J. Date :- 17 th JULY, 2009. ORAL JUDGMENT : By this Writ Petition the Petitioners have challenged the order dated 6.9.2001 passed by Civil Judge Senior Division, Margao, in Special Civil Suit No. 220/87/I by which the objections taken by the Petitioners to the commissioner's report have been dismissed. 4 2. The respondents filed the above suit against the petitioners seeking decree of partition of the suit properties bearing survey numbers 246/7 and 246/8. The suit was contested. The Trial Court framed the issues after appreciating the evidence led by the parties. The Trial Court by judgment and order dated 30.9.2000 partly decreed the suit. The operative part of the order reads thus :- “The suit filed by the plaintiffs is partly decreed with costs. The plaintiffs' portion i.e. 2/3rd shall be partitioned and separated from the remaining 1/3rd belonging to the defendants out of survey No.246/7 and 246/8 by metes and bounds. Preliminary decree be drawn accordingly.” 3. The respondents sought actual partition of the suit properties by metes and bounds in terms of judgment and order passed by the Trial Court . The Trial Court appointed Shri K. P. Prabhu Dessai, Engineer by profession as commissioner to effect the partition by metes and bounds. The commissioner gave notice to the parties and in the presence of the parties effective partition was done and an area of 7068 square metres on the northern side was allotted to the plaintiffs and area of 3555 square metres on the 5 southern side was allotted to the defendants. Thereafter, the commissioner submitted his report dated 13.2.2001 and a plan was annexed to it. The petitioners filed objection to the report. The respondents accepted the report . After hearing the parties the Trial Court by order dated 6.9.2001 dismissed the objections filed by the petitioners to the report of the commissioner. Aggrieved by the said order, the petitioners have invoked writ jurisdiction of this Court. 4. Mr. Diniz, the learned Counsel for the petitioners submitted that the commissioner had no jurisdiction to effect the partition of the properties since the properties were assessed for the payment of revenue to the Government and therefore in terms of Order 20 Rule 18 of CPC, only the Collector has jurisdiction to effect the partition. In support of this submission Mr. Diniz relied upon the judgment of this Court in Keshao Raghunath Deosant and others V/s Waman Keshao Deosani and another, reported in 1971 BCI(0) 76 and judgment of Karnataka High Court in Ramkrishnacharya and others V/s Sreenivasacharya and others, reported in AIR 1989 Karnataka 30. Mr. Diniz submitted that the 6 decree is vague and as such is incapable of execution. Mr. Diniz further submitted that respondents had purchased the property on the southern side and therefore the commissioner could not have allotted the property on the northern side which was possessed by the petitioners. According to Mr. Diniz, in terms of order passed by the Trial Court, the partition had to be effected by taking into consideration the factual possession of the properties by the respective parties and the same having not been done by the commissioner, the impugned order deserves to be quashed and set aside. Mr. Diniz further submitted that the commissioner could not have resorted to the procedure of picking up the portion for allotment from particular side in terms of the order passed by the Civil Court. . According to Mr. Diniz, the commissioner could not have gone beyond the judgment and order passed by the Trial Court while effecting the partition even if he had jurisdiction to carry out the partition. Mr. Diniz invited my attention to the pleadings and judgment in Special Civil Suit No. 220/87/B and submitted that the commissioner has not carried out the partition in accordance with the judgment and order and the same is liable to be quashed and set 7 aside. 5. Per contra, Mr. M. S. Usgaonkar, the learned Senior Counsel appearing for the respondents submitted that no revenue is paid in respect of the suit properties and therefore Order 20 Rule 18 of CPC is not attracted. Mr. Usgaonkar further submitted that the petitioners were present at the time of demarcation and did not object to the commissioner effecting partition of the properties and this is an additional ground on which the petitioners should not be permitted to challenge the order on the ground that the commissioner had no authority to carry out the partition. According to Mr. Usgaonkar, the commissioner had to effect the partition in terms of operative part of the order and the order having not been challenged, the petitioners are not entitled now to contend that the northern portion ought to have been allotted to the petitioners. According to Mr. Usgaonkar, the conduct of the petitioners clearly disentitles them from invoking extra ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. 8 6. I have carefully considered the submissions made on behalf of the parties and perused the records. 7. In so far as the first ground of Mr. Diniz that since the properties were assessed for the payment of revenue to the Government and therefore the Collector had authority to effect the partition is concerned, I find that this ground has not been taken in the objections filed by the petitioners to the report of the commissioner. This cannot be considered to be pure question of law and in the absence of any specific plea in the objections taken by the petitioners to the report of the commissioner, the petitioners cannot now be permitted to urge this ground for the first time in this Court. No doubt such a plea was taken in the course of the arguments but merely taking a point in arguments without a foundation having been laid is of no help to the petitioners. The petitioners having not taken specifically this plea in the objections, I am of the considered opinion that the petitioners are not entitled to succeed on this ground. No doubt the authorities cited by Mr. Diniz hold that if a decree of partition relates a property which is 9 assessed for the payment of revenue to the Government, it is the only Collector who has jurisdiction to effect partition and not the commissioner, but this authorities do not advance the case of the petitioners in view of the finding given by me herein above. Merely because there is a reference to Matriz in the pleadings by itself could not sufficient to hold that the land was assessed for the payment of revenue more particularly after Land Revenue Code, 1968, came into force in Goa. 8. The next question which arises for determination is whether the petitioners are entitled to claim that since they were in possession of the northern portion of the properties, the commissioner ought to have allotted the northern portion to them in terms of order passed by the Trial Court. At this stage, it would be relevant to quote issue no.2 framed by the Trial Court. It reads thus :- “Whether the plaintiffs prove that they are entitled to 2/3rd share of the entire northern half of the suit property surveyed under survey No. 246/7 and survey No. 246/8 ?” 10 The Trial Court while answering the said issue has answered the issue no.2 in affirmative. Admittedly, the judgment and order dated 30.9.2000 has not been challenged by either party and therefore the challenge is without any merit. It will be also pertinent to note the stand taken by the petitioners who were the defendants in the said suit. At the time of the final arguments of the suit, the learned Counsel appearing for the petitioners submitted that the plaintiffs are having 2/3rd share in the entire northern half of the suit property and the remaining 1/3rd share belonged to the defendants and therefore the partition could be effected of the entire northern half which includes survey nos.246/7 and 246/8. This finds place at the end of para 8 of the judgment. In other words, it was the stand of the petitioners all throughout that the entire property had to be partitioned in terms of the respective shares of the parties. 9. I find considerable merit in the submission of Mr. Usgaonkar that the conduct of the petitioners also disentitled them from getting any relief from this Court. The petitioners at no point 11 of time had taken objection to appointment of the commissioner for the purpose of effecting the partition. Moreover, both the parties remained present at the time of actual division of the properties by metes and bounds and it is only after the commissioner submitted his report, the petitioners chose to object the commissioner's report. On this ground also I am not inclined to exercise equitable and extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Mr. Usgaonkar is right in contending that the commissioner has to carry out the partition in terms of order passed by the Trial Court and in my considered opinion no fault can be found with the action of the commissioner in this regard. 10. In so far as argument of Mr. Diniz that the decree is vague and therefore the commissioner could not effect partition is concerned, I find no merit in as much as once shares of the respective parties were determined and partition was to be effected in terms of order passed by the Trial Court, it was for the commissioner to adopt reasonable procedure for effecting the partition and there is nothing on record to show that the procedure 12 followed by the commissioner was contrary to the order. In my opinion, no fault can be found with the report of the commissioner and the impugned order. 11. In view of the above discussion, I hold that no case has been made out by the petitioners for interference of this Court with the impugned order. 12. Rule is discharged with no orders as to costs. A. P. LAVANDE, J. at*