-1- IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 81 OF 2008 1 Shri Gopinath Waman Shinde, since deceased by his legal representatives. 1a. Shri Suhas Gopinath Shinde 1b. Shri Neeta Suhas Shinde 1c. Shri Shamrao Gopinath Shinde, All r/o Borim, Ponda Goa. 1d. Smt. Chitra Bappa Chibade 1e. Shri Bappa Narayan Chibade, r/o Mapusa, Goa. 1f. Smt. Bharati Gajanan Karekar 1g. Shri Gajanan Jaidev Kareker Both r/o Valpoi, Goa 1h. Smt. Lata Devendra Hazare 1i. Shri Devendra Rajaram Hazare Both r/o Doda Marg(District Sindhudurga, Maharashtra) 1j. Shri Ramesh Pandurang Ekawade(Ainkar) 1k. Smt. Shakil Ramesh Ekawade ( Ainkar) 1l. Miss Mahananda Gopinath Shinde 1m. Miss Sharmila Gopinath Shinde all r/o Borim, Ponda, Goa. 2 Smt. Motibai Gopinath Shinde, r/o Borim, Ponda, Goa. 3 Shri Pandari alias Pandharinath Waman Shinde(since deceased) -2- 3a. Shri Santosh Pandharinath Shinde 3b. Mrs. Sangeeta Santosh Shinde, Both residents of Patyam, Near Datta Mandir, Sanquem-Goa, 403704. 3c. Shri Prakash Pandharinath Shinde 3d. Smt. Prakashini Prakash Shinde Both residents of House no.41, Ward no.7, Opp. Top- Cola, Borim, Ponda, Goa. 403401. 3e Shri Vilas Sitaram Dhamaskar, 3f Smt. Pramila Vilas Dhamaskar Both residents of behind Kamat Plaza, Taleigao, Panaji, Ilhs Goa 403 001. 3g Shri Nandkumar Pandharinath Shinde, 3h Mrs. Rajani Nandkumar Shinde, Both residents of House no. 41, Ward no.7, Opp. Top- Cola, Borim, Ponda Goa. 403 401. 3i Shri Umesh Pandharinath Shinde, 3j Mrs. Milan Umesh Shinde, Both residents of House no. 4, Ward no.7, Deulwada, Borim, Ponda Goa. 403 401. 3k Smt. Khushawati Sharad Srivant, resident of Ponda, Tisk, Goa 403401. 4 Smt. Mirabai Pandhari Shinde, r/o Near Shri Datta Mandir, -3- Patyam, Sanquem, Goa. ( since deceased) 5 Shri Gurudas Pundalik Shinde 6 Smt. Shubhangi Gurudas Shinde, both r/o Deulwada, Borim, Ponda Goa. 7 Shri Suresh Pundalik Shinde, r/o Maimolem, Vasco-da- Gama, Goa. 8 Smt. Minakshi Gopal Kerkar, 9 Shri Gopal Vishnu Kerkar (since deceased) 9a. Smt. Babita Dinesh Shinde, 9b. Shri Dinesh Shinde, both residents of Shop No. 5, Grace Enclave, Cuncolim, Salcete, Goa 403 703. 9c. Smt. Namrata Santosh Ekawade, 9d. Shri Santosh Baburao Ekawade, both residents of Near Saibaba Temple, Telebandh, Aquem, Margao, Goa 403 601. 9e. Smt. Pratibha Ajay Karekar, 9f. Shri Ajay Karekar, both residents of Kasarwada, Mapusa, Goa 403507. 9g. Smt. Pratibha Santosh Srivant, 9h. Shri Santosh Srivant, both residents of Kegdi, Cotto, Cuncolim, Salcete, Goa 403703. 10 Smt. Milan Narayan Patil, 11 Shri Narayan Patil, Both r/o Talyokanto, Betul Post, Velim-Goa. -4- 12 Smt. Prabhavati Shambhu Shinde (since deceased) 13 Shri Anand alias Anant Shambhu Shinde, 14 Smt. Amita Anand Shinde 15 Shri Mahesh Shambhu Shinde, All r/o Borim, Ponda Goa. 16 Shri Ratnakar Shamabhu Shinde, 16a. Mrs. Ratnakant Shamabhu Shinde, Both r/o House no. 43, Ward no.1, Shirshirem, Borim, Ponda Goa 403401. 17 Shri Rajendra Shinde, all r/o Deulwada, Borim, Ponda Goa. 17a. Mrs. Rajendra Shinde, Both r/o House no. 4, Ward no. 7, Deulwada, Borim, Ponda Goa. 18 Smt. Kunda Madhu Kerkar 19 Shri Madhu Kerkar(since deceased) 19a. Miss Namita Madhu Kerkar 19b. Shri Kiran Madhu Kerkar, Minor, by next friend, mother (respondent no.18) all r/o Majorda Goa 20 Smt. Vishaya alias Vijaya Bhagwant Sawant 21 Shri Bhagawant Shiva Sawant, Both r/o Corlim, Mapuca, Goa …... Appellants -5- Versus 1 Shri Baburao Pandurang Sawant,(since deceased) 2 Smt. Leela alias Sushila Baburao Sawant, since deceased, by her legal representatives 2a. Shri Dilip Baburao Sawant, major, married, service, since deceased, by his legal representatives 2a.i. Master Sailesh Dilip Sawant 2a.ii. Master Srinath Dilip Sawant, Represented by their mother 2(b) herein 2b Smt. Shaila Dilip Sawant, all r/o 2/21, Chaitanya Co-op. Housing Society Ltd, Vakala Bridge, Nehru Road, Santa Cruz(East), Mumbai, 400 055. 2c. Pravin Baburao Sawant 2d. Smt. Kala Pravin Sawant, both r/o Dhavali, Ponda, Goa. 3 Smt. Shrimati Gajanan Chibde(Since deceased) 4 Shri Gajanan Arjun Chibde (since deceased) both r/o Vana, Bicholim, Goa. 5 Shyam Baburao Sawant 6 Smt. Santoshi Shyam Sawant, major, married, service, both r/o Kegaon, Nandu Mhatre Chawl, Opp. Scall Breweries, Post Uran, Dist. Raigad( Maharashtra) 400702 …... Respondents -6- Mr. R. G. Ramani, Advocate for the Appellants. Mr. Shivan Dessai, Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 9 th July, 2010. ORAL JUDGMENT Heard the learned Counsel for the Appellant and the Respondent. 2. The present Appeal challenges the Judgment dated 5th February, 2008, passed by the learned Adhoc District Judge-i, Panaji, in Regular Civil Appeal no. 147/2000, whereby the Appeal preferred by the Respondents was partly allowed and the matter was remanded back to the learned Trial Judge to allow the parties to lead evidence on all the issues and then to decide all the issues together on merits and pass afresh Judgment in the suit. 3. The suit was filed by the Respondents seeking for a partition of the suit property as well as to submit accounts as far as the common property is concerned. The Appellants have disputed the right of the Respondents to the suit property as well as the fact that the Appellants had received the compensation under the Land Acquisition Act and the income derived from the suit property. 4. On the basis of the pleadings, the following issues were framed -7- by the learned Trial Judge : ISSUES 1. Whether the plaintiffs prove that they are entitled to an undivided 5/12th shares in the said land Xelchem Fonda and the said house therein ? 2. Whether the plaintiffs prove that they received a substantial sum as compensation from Government for having acquired a portion of land Xelchem Fonda for the purpose of widening road ? 3. Whether the plaintiffs prove that the defendants have also received compensation on account of laying a water pipe by the Government as also for the electric line in the land Xelechem Fonda ? 4. Whether the plaintiffs prove that the defendants have extracted and sold large quantity of stones from the said land Xelechem Fonda ? 5. Whether the plaintiffs prove that the defendants have failed and neglected to give an accounts or to pay to plaintiffs any money on account of their share ? 6. Whether the plaintiffs are entitled to a decree and order for partitioning by metes and bounds their 5/12 share in the land Xelechem Fonda and the house therein as also their 1/6 share in the land Molla and the house herein ? 7. Whether the defendants prove that plaintiffs are not -8- entitled to the share allotted to Crishnabai in the inventory proceedings ? 8. Whether the defendants prove that said Crishnabai by a deed of gift dated 2.8.1969 gifted to defendant no.3 Pandhari the right to one half of the suit house ? 9. Whether the defendants prove that the prayer for partition of the assets of the deceased Krishnabai cannot be granted unless and until her share in the suit property is decided ? 5. By Order dated 01.08.2000, the learned Civil Judge, Senior Division, Ponda, decided issue no. 9 in favour of the Appellants herein and dismissed the suit filed by the Respondents as being not maintainable. The said Order was challenged before the learned District Judge, which, by the impugned Judgment dated 05.02.2008, set aside the said Order dated 01.08.2000 and remanded the matter for deciding all the issues framed in the suit. The present Appeal challenges the Judgment dated 05.02.2008. 6. Shri R. G. Ramani, the learned Counsel appearing for the Appellants assailed the impugned Judgment and submitted that the learned Judge has erred in remanding the mater as, according to him, the Appellants have not disputed the right of the Respondents in the suit property. He further submitted that only dispute between the parties is pertaining to the shares in the suit property. He further submitted that the Appellants have not received any income from the suit property nor any compensation in respect of the land -9- acquisition proceedings. He further submitted that all the issues are to be decided in the Inventory Proceedings and until and unless the shares are determined, the question of filing a suit of the nature sought to be done by the Respondents, does not arise at all. He further pointed out that some of the issues framed in the suit do not flow from the pleading and have to be re- framed or deleted. He further submitted that as such there is no justification for the learned Appellate Court to remand the matter for adjudication on all the issues framed in the suit. 7. On the other hand, the learned Counsel appearing for the Respondents has supported the Judgment of the learned Appellate Court and submitted that on perusal of the issue no.1 itself, demonstrates that the Appellants have disputed the right of the Respondents over the suit property. H e further submitted that as the rights to the suit property are disputed, the question of getting the shares determined in the Inventory Proceedings would not arise. He further submitted that the relief for accounts and the claim in the compensation received in the land acquisition proceedings, the only remedy available to the Respondents is to file a suit. He further submitted that there is no infirmity in the impugned Judgment and, as such, no interference is called for in the present Appeal. 8. On hearing the learned Counsel and on perusal of the records, I find that considering the issues framed by the learned Trial Judge, issue no.1 demonstrates that in fact the Appellants have disputed the right of the -10- Respondents over the suit property. Apart from that, there is a claim of the Respondents with regard to their share in the income which has accrued over the suit property. Besides that, there is a claim made by the Respondents with regard to the compensation received by the Appellants from the land acquisition proceedings. Considering the dispute in the suit, I find that the learned Trial Judge has to decide all the issues framed in the suit before disposing the suit. These contentions cannot be decided in the Inventory Court as until and unless the rights of the Respondents over the suit property are adjudicated, the question of determining the shares in the Inventory Proceedings does not arise at all. The learned Trial Judge after recording the evidence and hearing the parties, will have to decide as to whether the Respondents have a right to the suit property. After such finding is arrived at, the question of determining the shares will have to be ascertained in accordance with law. With regard to the claim of the Respondents to the income accrued from the suit property as well as their share in the compensation amount alleged to have been received by the Appellants, this matter will also have to be adjudicated by the Trial Court. In such circumstances, the Lower Appellate Court was justified in directing the learned Trial Judge to decide all the issues after recording of evidence in accordance with law. Until and unless the issues as framed by the Trial Judge stand, the suit filed by the Respondents will have to be decided after recording of evidence. However, the Appellants are at liberty if so advised to file an appropriate application for re-framing/deleting any issue in accordance with law. In case such an application is filed, the learned Trial Judge to consider -11- the same on its own merits. 9. In view of the above, I find that no interference is called for in the impugned Order and, as such, the suit is dismissed with no orders as to costs. 10. The learned Counsel appearing for the Respondents pointed out that the suit filed by the Respondents was in the year 1984 and prays for a direction for expeditious disposal of the suit. As such, the learned Trial Judge is directed to decide the Regular Civil Suit no. 4/83/A as expeditiously as possible in any event before 31.12.2011. F. M. REIS, J. arp/*