AI Structured Summary
Not yet generated for this judgment
Judgment
Rule. Rule made returnable forthwith. With consent of parties, matter is heard finally at admission stage.
The petitioners (orig. defendant nos.12 and 13) impugns order dated 19.03.2025 passed below Exhibit-139 by Civil Judge Senior Division, Vasco-de-Gama in RCS No.95/2014, thereby rejecting application for re-casting and re-framing of issues as well as order dated 20.09.2025 dismissing Review Application filed against order dated 19.03.2025.
The dispute pertains to property Survey No.36/7 situated at Village Velsao, Tal. Mormugao, Goa admeasuring 1040 sq. meters, which includes an ancestral and residential house. Late Marcus Periando Jeuus Maria de Souza bequeathed property to son of his brother Maximo. Five sons of Maximo partitioned assets. The undivided share of Late Marcus was devolved on eight children of Maximo through series of inventory proceedings and partition deeds. The shares of various heirs were determined.
According to respondents (orig. plaintiffs nos.1 and 2), they acquired individual shares alongwith petitioners (orig. defendant nos.12 and 13). The petitioners and respondents mutually agreed to partition property into ‘Plot A’ (255 sq. meters) and ‘Plot B’ (785 sq. meters). However, partition was not effected by mates and bounds. With aforesaid pleading, respondents filed RCS No.95/2014 seeking declaration that they acquired exclusive ownership of ‘Plot B’ alongwith residential house by prescription and adverse possession, so also claimed declaration of easement rights to water from ancestral Well in adjoining property. The petitioners contested suit by filing written statement and also raised counter claim for partition and separate possession of property by mates and bounds on the basis of shares determined in inventory proceeding.
On 10.07.2015, six issues were finalized by Trial Court. The respondents completed examination-in-chief and matter was posted for cross-examination. At this stage, petitioners filed an application under Order 14 Rule 1 of Code of Civil Procedure for re-casting and re-framing issues in respect of counter claim. However, Trial Court vide impugned order rejected petitioners’ application observing that Issue No.3, as framed covers counter claim. Hence, this Writ Petition.
On minute reading of counter claim, it can be gathered that petitioners have pleaded that suit property is required to be partitioned as per inventory proceeding and pass a preliminary decree and appoint Commissioner to inspect property and suggest mode of partition. If physical partition is not feasible, auction the interest between parties. The respondents filed written statement to counter claim and denied claim for partition.
Perusal of issues framed by Trial Court on 09.06.2015 shows that Issue No.3 is framed as under:
“Whether defendant nos.12 and 13 prove that partition of suit property claimed by plaintiffs has no legal effect?”
Perusal of impugned order depicts that Trial Court was of the view that Issue No.3 takes care of claim of partition raised by petitioners in counter claim, which is denied by respondents. The Trial Court observed that on bare perusal of Issue No.3, it is prima facie seen that material propositions of facts relating to partition, as per either parties respective version has been covered.
This Court, prima facie, finds that Issue No.3 as framed would not cover claim raised by way of counter claim. It merely takes care of defence raised by petitioners against claim of partition of suit property made by respondents. It nowhere engrafts independent claim of partition raised by petitioners based on inventory proceeding. The petitioners have raised claim of comprehensive partition of suit property, whereas respondents have claimed their exclusive rights over ‘Plot B’ admeasuring 785 sq. meters by way of prescription and adverse possession based on mutual partition with petitioners as regards to particular plot. However, Trial Court has not framed any issue in this regard.
In that view of matter, this Court finds that matter needs to be relegated back to Trial Court for reconsideration of petitioners’ prayer for re-casting/re-settling of issue keeping in mind specific pleading in counter claim. Hence, following order:
ORDER
a. Writ Petition is partly allowed.
b. The impugned orders dated 09.03.2025 and 20.09.2025 passed by Civil Judge Senior Division, Vasco-de-Gama in RCS No.95/2014 on application for re-casting of issues as well as application for Review are quashed and set aside.
c. The Trial Court shall reconsider petitioners’ application filed below Exhibit-139 for re-casting/re-settling of issues, having regard to pleading in counter claim.
d. Rule is made absolute in above terms.