- (1.) HEARD learned Senior Advocate Shri . M. S. Usgaonkar for the appellants. None present for the respondent, though served.
(2.) THIS is an appeal from the Order of the Civil Judge, Senior Division at Panaji , dated 28th March, 2001, allowing partition of the property, item no.2 on the list of immovable properties, filed by the ' cabecal de casal ' in the inventory Court. By the impugned Order the trial Court disagreed with the contention of the appellants that the partition should not be allowed as the said partition would incur huge expenses. The learned trial Judge however, has not dealt with the objection as mentioned at paras 6 and 8 of the reply dated 9th December, 1999, filed by the appellants/interested parties. This reply was to the application dated 28th October, 1999 filed by the ' cabecal de casal '. In the said application it was stated that the parties had mutually agreed that items no.2 and 3 mentioned in the list dated 14th February, 1997, be divided into equal parts among the interested parties. In their reply, the appellants denied that any such agreement for partitioning of the property by metes and bounds was arrived at, and incidentally, one of the reasons given was that partitioning of the properties would involve huge expenses and cause practical difficulties. As noted above, the learned trial Judge has not dealt with the objections as to the maintainability of the said application. It is the contention of the appellants that the second prayer for partition by metes and bounds is not maintainable on law and facts. So far as the maintainability on facts is concerned, it is the contention of the appellants that apart from huge expenses being incurred on partitioning, it would also encounter practical difficulties as part of the property is tenanted. More specifically, however, the defence is that the said application for partition is not tenable in law as partition of the property could be done only by mutual agreement and that too only by way of a suit by mutual agreement and, in the absence of a mutual agreement, the inventory Court has no power to direct partition of the property. My attention is drawn to the case decided by this Court viz. Mr. Anthony Drago vs. Mrs. Piedade Drago @ Diniz and Ors., reported in 2001 (1) Goa L.T. 494, wherein a similar issue was involved. The Court held in para 7 as follows: "7. However with regard to the latter part of the direction issued by the Trial Court for division of the properties by metes and bounds and appointment of Commissioner is concerned, as rightly submitted by Mr. Usgaonkar , the same cannot be sustained in law. The scope of authority in the present proceedings is very limited, only to decide the shares of the interested persons and finalise the list of properties and partition. These proceedings, therefore, cannot be elongated to carry out the division of the properties, unless mutually agreed to by the parties. In the present case, since the appellant has objected to division of the suit properties, in such a situation, the parties will have to be relegated to file a suit on culmination of Inventory proceedings. In the circumstances, the Trial Court clearly exceeded its authority in directing division of the properties by metes and bounds inspite of objection taken by the appellant."
(3.) IN the present case also the appellants have not agreed to any partitioning of the property and in fact have objected to the same in their reply to the application filed by the ' cabecal de casal ' for partitioning of the property. The trial Court has not dealt with the objection to the jurisdiction of the trial Court in passing any Order for partitioning. The trial Court clearly exceeded its authority in directing partition of the property by metes and bounds in the face of objections taken by the appellants.;