IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 32 OF 2008 COMMUNIDADE OF NERUL REPRESENTED BY ATTORNEY ... Petitioner Versus SUPPAYA KANNAPPA NADAR AND 14 ORS., ... Respondents Ms. F. Mesquita, Advocate for the Petitioner. Coram:- N. A. BRITTO, J. Date:- 1st July, 2010 P.C.:- Heard Ms. F. Mesquita, learned Counsel appearing on behalf of the Petitioner. The plaintiffs who are the Respondents have chosen not to contest the suit. The Petitioner is Defendant No.2 in Regular Civil Suit No.145/1997/C. The said suit has been filed by the plaintiffs, inter alia, for a declaration that the suit property having old survey no.303 and new survey no.99/2(Part) of Village Reis Magos does not belong to Defendant No.2. According to the plaintiffs, it belonged to one Ida Tomassia Liria Josepha Basta Palmera de Mendonca, and presently to her legal heirs. However, the said Ida nor her legal heirs have been made parties to the suit. According to Defendant No.2, the property surveyed under No.99/2 belongs to the Petitioner/Comunidade and their name appears in Form Nos.I and XIV in the occupants column. According to Defendant No.2, the plaintiffs are some of the persons who set up illegal constructions in the years 1991 and 1992 which were put up without the consent or permission of Defendant No.2 and the suit was filed by the plaintiffs because of the stand taken by Defendant No.2 in Writ Petition Nos.138/1997 and 140/1997 pending before this Court. Be that as it may, the learned trial Court framed an issue which reads as follows:- "Whether the plaintiffs prove that they are the mundkars of the suit property belonging to Ida Tomassia Liria Josepa Basta Palmira de Mendonca". The Defendant No.2 then filed an application dated 26-4-2007 in terms of Order XIV, Rule 5(2)C.P.C. for deletion of the said issue, which came to be rejected by the learned trial Court by Order dated 25-9-2007. In rejecting the application, the learned trial Court observed that the present suit was filed by the plaintiffs for injunction and that they had pleaded that they were residing in the suit property as mundkars, since the last 25 years, and accordingly the issue was rightly framed. Learned Counsel on behalf of the Petitioner submits that framing of the said issue will only result in keeping the suit pending for years. Learned Counsel has further submitted that the said issue did not at all arise in the suit inasmuch as the plaintiffs had claimed their mundkarship against the legal representatives of the said Ida who were not even made parties to the suit. Learned Counsel has placed reliance on the case of Pandu Dhondi Yerudkar and another v. Ananda Krishna Patil(AIR 1975 Bombay 52) and Uttam Sambha Deshmukh and others(1998 AIHC 2148). I have perused the said decisions. The plaintiffs have filed the suit for a declaration that the suit property does not belong to Defendant No.2 even without making the persons to whom it belongs as parties to the suit. The next prayer sought by the plaintiffs was for injunction. In case the plaintiffs are the mundkars of the said Ida then the right remedy for them is to approach the Mamlatdar as against the said Ida or her legal representatives. By making a bare statement in the plaint, that they are the mundkars of the said Ida, issue as framed did not arise between the parties to the suit. The learned Civil Judge was certainly not justified in raising the issue, as framed. Consequently, the application dated 26-4-2007 is allowed. The said issue no.2 is deleted. Petition disposed off accordingly with no order as to costs. N. A. BRITTO, J. RD.