2] Adarsha Sahakari Doodh Utpadak vs 6] Tarabai
2010 Latest Caselaw 65 Bom

                               1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                               
                     BENCH AT AURANGABAD.




                                       
             CIVIL REVISION APPLICATION No. 159 OF 2004


    1]   Gramin Yuvak Adhar Gramin Bigar Sheti




                                      
         Sahakari Patsanstha Maryadit,
         Manglapur, thourgh its Chairman
         Savleram Govindrao Pawar,
         Age 68 years, r/o Mangalapur,
         Tq. Sangamner, Dist. Ahmednagar




                            
    2]   Adarsha Sahakari Doodh Utpadak
         Sanstha Maryadit, Mangalapur,
                 
         Sangamner, Dist. Ahmednagar,
         through its Chairman Dnyanodeo
         Rambhau Pawar, Age 40 years,
                
         R/o Manglapur, Tq. Sangamner,
         Dist. Ahmednagar                      ...PETITIONERS


                             VERSUS
      

    1]   Kashinath Ramchandra Wale,
         age 46 years, Occu. Agril,
   



         r/o Mangalapura, Tq. Sangamner,
         Dist. Ahmednagar.

    2]   Balasaheb Ramchandra Wale,
         Age 40 years, Occu. Agril.,





         R/o as above.

    3]   Gangadhar Ramchandra Wale,
         Age 48 years, Occu. Agril,
         r/o as above





    4]   Manjulabai W/o Ramesh Wale,
         deceased through her legal
         representatives
         Shri Ramnath Kisanrao Hase,
         Age 50 years, Occu. & r/o as above

    5]   Tulsabai W/o Janardan Dhage,
         `Age 47 years, Occu. Household,
         r/o as above.




                                       ::: Downloaded on - 09/06/2013 16:33:31 :::
                                    2

    6]   Tarabai w/o Bharat Gopale,
         Age 47 years, Occu. Household,




                                                                     
         r/o as above.                                 ..RESPONDENTS




                                             
                              ...
    Mr. K.M. Nagarkar, Advocate for Petitioner
    Mr.V.J. Dixit, Sr. Counsel for Respondent No. 1
    Mr.B.S. Kudale, Advocate for respondent Nos. 2 to 6




                                            
                                       CORAM :- S.S. SHINDE, J.

               JUDGEMENT RESERVED ON       : 13th October, 2010
             JUDGMENT PRONOUNCED ON        : 19th October, 2010




                                 
    JUDGMENT:

This ig Civil Revision Application is filed,

challenging the Judgment and Order dated 16th April,

2004 in Special Dharkhast No. 50 of 2003 passed by the

learned Civil Judge, Senior Division, Sangamner, Dist.

Ahmednagar.

2. The respondent Nos. 4,5 & 6 filed Regular

Civil Suit No. 10 of 2001, before the Civil Judge,

Senior Division, Sangamner, Dist. Ahmednagar, for

partition and separate possession and for perpetual

injunction and for the property land bearing Survey

No. 41/1A/1, admeasuring 21 R of Village Mangalapur,

Tqhasil Sangamer, Dist. Ahmednagar. The notices were

served upon all the defendants to the suit. On 27th

June, 2001 the said Civil Suit No. 10 of 2001 was

decided against the respondent Nos. 1 and 3 exparte,

whereas against the respondent No. 2 without Written

Statement suit was proceeded. By Judgment and Order

dated 26th June, 2001, the said suit came to be

decreed.

The Special Dharkhast bearing No. 26 of 2002,

was filed by respondent Balasaheb, seeking partition

and separation of his share as per terms of decree.

The notices in respect of Special Dharkhast No. 26 of

2002 were served on all the concerned parties to the

said proceedings, but inspite of this fact, the

respondent No. 1 herein had neither appeared nor filed

his say. The special Dharkhast No. 26 of 2002, came to

be executed by the Collector, Ahmednagar, and the

shares has been allotted to the parties and possession

was also delivered to the respondent No. 2 of his

share, and his name was recorded in the record of

right. The respondent No. 2 sold the suit property of

his share to the present petitioner Nos. 1 & 2 vide

registered sale-deed dated 30th September, 2009 and the

name of the petitioners came to be entered into 7/12

extracts, after deciding the objections of the

respondent No.1 by the Tahasildar concerned for

mutation entry and same attended finality.

3. It is the case of the petitioner that the

respondent No. 1 Kashinath filed Special Dharkhast No.

50 of 2003, thereby challenging the execution in

special Dharkhast No. 26 of 2002 before the same Court

i.e. Civil Judge, Senior Division, Sangamner. The

Petitioner Nos. 1 & 2 i.e. Original J.D. Nos. 6 & 7 in

special Dharkhast No. 50 of 2003 filed their say and

resisted the contentions of the respondent No. 1 i.e.

Original decree holder in special Dharkhast.

By Judgment and order dated 16th June, 2004,

the Civil Judge Senior Division, Sangamner, partly

allowed the prayers in Special Dharkhast No. 50 of

2003. Hence this Civil Revision Application,

challenging the said Judgment and Order in Special

Dharkhast No.50 of 2003.

4. The petitioner herein has raised his

objection in the special Dharkhast No. 50 of 2003 by

way of filing written submissions.

The petitioner submits that, after the

above said direction, the learned Civil Judge has

without considering the legal and factual aspects and

evidence on record, the Special Dharkhast NO. 50 of

2003 is came to be allowed in favour of the present

respondent No. 1 and injunction granted against the

present petitioners for indefinite period, which

causes great injustice to the petitioners. Therefore,

it is just and proper to set aside and quash,

otherwise, the petitioners will suffer ig irreparable

loss which cannot be compensated in terms of money.

The petitioner further submits that the

learned lower Court has totally ignored the fact that

the transactions in between the respondent No. 2 and

present petitioners has been performed by way of valid

sale deed. Prior to execution of sale deed, the

concerned Tahasildar, Sangamner Dist. Ahmednagar and

Grampanchayat Mangalapur, Tq. Sangamner has given

their no objection on the request of Deputy Registrar,

Registry office, Sangamner for sale transaction in

between respondent No. 2 and the present petitioners

vide its letter dated 20th September, 2003, and 4th

July, 2003 respectively. After execution of sale deed,

the Grampanchayat Mangalapur has also given the no

objection certificate by the present petitioner vide

its letter dated 14th October, 2003. The respondent No.

2 has also given his consent letter for execution of

sale deed, and transactions in between present

petitioners and respondent NO. 2 took place in respect

of sale deed. All the above stated compliance clearly

reflects that the present petitioners diligent and

bonafide purchaser of the suit property. Hence due to

uncertainty view taken by same Court, in two special

Darkhast from the same decree in such case, the

bonafide purchaser of the suit property should not be

suffered due to the impugned order, same is illegal,

ultra virus and therefore same is liable to be quashed

and set aside.

5. The learned Counsel appearing for the

petitioner argued that the Civil Court has forwarded

the decree in special Dharkhast No. 26 of 2002, and

same is executed by the Collector, Ahmednagar by

effecting partition, at that time no body has taken

objection. However, subsequently the respondent No. 1

has filed special Dharkhast No. 50 of 2003, thereby

claiming injunction to the execution proceeding in

special Dharkhast No. 26 of 2002. According to the

counsel for the petitioner, the respondent No. 1 has

approached the same Court, by way of special Dharkhast

No. 50 of 2003, for challenging the execution

proceeding in special Dharkhast No. 26 of 2002 passed

by the same Court, instead of approaching before the

revenue authorities for challenging the execution

proceeding No. 26 of 2002. According to the Counsel

for the petitioner, the second Dharkhast No. 50 of

2003 should not ig have been entertained by the same

Court, since the same was not maintainable in law. In

support of his contention Counsel for the petitioner

placed reliance on the following Judgments :

1] Paygonda Survgonda Patil & others V/s.

Jingonda Surgonda Patil & others, reported in AIR 1968 Bombay, 198 (Vol.55, C. 26).

2] Kishan Bhikaji Dalvi (Since deceased through L.Rs. Mohan Kisan Dalvi and others V/s. Krishnabai Maruti Dalvi, reported in 2000(4) Mh.L.J.,485

3] Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others, reported in 2007(0) B.C.I. 9 (Nagpur Bench)

4] Madhu Naryan Pawar deceased through his LRs. Balwant Mahadu Pawar & others V/s. Additional

Commissioner, Nashik Division, Nashik, reported

in 2008(1), Mh.L.J, 929.

The learned Counsel for the petitioner submitted

that the appropriate remedy to challenge the order of

Collector was before the revenue authority and second

Dharkhast filed by the respondent No. 1 was not

maintainable.

                                        
    6.          On
                      
                      the    other hand,         learned Senior

appearing for the respondent No. 1, has invited my Counsel

attention to the order passed by the Collector and

submitted that the Collector did not follow command of

the decree and did not properly made demarcation /

the shares of the each party. The Collector held that

the three plaintiffs are entitle 1/24th share. However,

Collector, has not properly demarcated the share of

each defendant to the suit. The Collector has also not

in specific, demarcated front portion of the suit

property. The Collector has not followed the

provisions of 8(AA) of the Bombay Prevention of

Fragmentation and Consolidation of Holdings Act, 1947.

In fact, he was suppose to follow the provisions of

Section 8(AA) of the Bombay Prevention of

Fragmentation and Consolidation of Holdings Act, 1947.

The Collector failed to determine the shares properly.

Since the land was fragment and front portion was

required to be partitioned. However, Collector fail to

do so. The Collector, failed to observe the command of

decree and not followed the same properly. The learned

Sr. Counsel, invited my attention to clause 'd' of the

decree and submitted that according to the said clause

d, the mandate of Section 8(AA) of the Bombay

Prevention of ig Fragmentation and Consolidation of

Holdings Act, 1947 should have been followed by the

Collector. According to the learned Sr. Counsel, the

mandate of decree is silent about other sharers.

Therefore, learned Sr. Counsel would submit that since

the decree drawn by the Collector, was not in

accordance with the directions issued in the Special

Dharkhast No. 26 of 2002, the respondent No. 1 filed

the subsequent proceeding special Dharkhast No. 50 of

2003. It is further submitted that the respondent No.

1 was not heard when special Dharkhast No. 26 of 2002

was disposed of. The learned Senior Counsel invited

my attention to the following reported judgments :-

1] Mahadu Alias Mahadeo Baji Bhosale V/s. Appaji Gunbarao @ Ganpatrao Bhosale since deceased by his heirs Gangabai Appaji Bhosale &

others, reported in 2003(2), Mh.L.J. 216.

2] Lachhiram Jasram V/s. Nanba Dhanaji and

others, reported in AIR (33) 1946 Nagpur, 353

The learned Senior Counsel submitted that,

the Second Dharkhast No. 50 of 2003 was maintainable

and Civil Revision Application filed by the petitioners

is devoid of any merits and same deserves to be

dismissed.

7. I have given due consideration to the

submissions on behalf of the parties, it is not in

dispute that the Special Dharkhast No. 26 of 2003 was

filed by Balasaheb for seeking partition and separate

possession of his share as per terms of decree. The

notices in respect of special Dharkhast No. 26 of 2002

had been issued to all concerned parties to the said

proceedings. But inspite of this fact, the respondent

No. 1 herein had neither appeared nor filed his say.

The special Dharkhast No. 26 of 2002 came to be

executed by the Collector, Ahmednagar and shares have

been allotted and possession has been delivered to the

respondent No. 2 and name of the respondent No. 2 came

to be recorded in the record of right.

8. The main question which falls for

consideration in this application is that, when the

earlier Dharkhast NO. 26 of 2002 was disposed of by

the Collector, Ahmednagar and final decree was drawn,

whether it was open for the respondent No. 1 to file

another special Dharkhast NO. 50 of 2003 before the

same Court for execution of Judgment and Order dated

26th June, 2001 in Civil Suit No. 10 of 2001, when

earlier Dharkhast No. 26 of 2002 was also filed for

same purpose.

9. The point raised in this Civil Revision

Application is no more res-integra and is answered by

the pronouncements of this Court in case of " Paygonda

Survgonda Patil & others V/s. Jingonda Surgonda Patil

& others" cited supra this Court held that :

" A decision or order made by the

Collector in effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner under Section 203 of the Bombay Land Revenue Code and is also revisable under Section 211 there of;

(emphasis supplied)

Para 5 of the said Judgment reads thus :-

               "       any decision or             order made by the
               Collector in effecting a partition                           of

revenue paying lands in execution of a

decree passed by a Civil Court is subject to an appeal to the Commissioner| under S. 203 and is also

revisable under Section 211 of the Bombay Land Revenue Code."

On plain reading of para No. 5 of the said

judgment position emerges that the respondent No. 1

herein should have challenge the order of the

Collector before the Appellate Authority under Section

247 of the Maharashtra Land Revenue Code.

10. Yet in another Judgment in case of " Kishan

Bhikaji Dalvi (Since deceased thrugh L.Rs. Mohan Kisan

Dalvi and others V/s. Krishnabai Maruti Dalvi" cited

supra,the Court has held thus :-

" When there is declaration of share in the partition suit with respect to lands, assessed to land revenue, the job of the Civil Court comes to an end by making such a declaration and all further proceedings regarding effecting

partition, may be by first preparing a

final decree and then by executing the same, is to be carried out by the

Collector, as per the provisions of section 54, Civil Procedure Code. The further steps in such a suit are

required to be taken by the Collector and for that purpose, the Civil Court has to transmit the papers to the Collector. Thereafter, the Collector

has to take appropriate steps for

partition, as per the directions issued in the decree. It is not expected that any final decree be prepared by the

Civil Court."(emphasis added)

This Court in para No. 10 of the Judgment

further held thus :-

" if the present petitioners had any grievance about the order passed by the Collector, then they ought to have filed

appeal before the authority under the Land Revenue Code, to which the appeal is maintainable against the order of the Collector. The application in the Civil

Court itself was not maintainable. (emphasis added)

11. In para No. 11 of the said Judgment, this

Court further held thus :-

              "     Whether         the    Collector         had       acted







              rightly     when   the      consolidation        scheme




                                                                      

was made applicable to the village, is a question to be decided in any such

appeal that might have been filed by the petitioners. The Civil Court cannot go into question also.(emphasis

supplied)

In para No. 12 of the said Judgment, this

Court has further held thus :-

"

When there is declaration of share in the partition suit with respect to lands, assessable to land revenue, the

job of Civil Court comes to an end by making such a declaration, and all further proceedings regarding effecting

partition, may be by first preparing a

final decree and then by executing the same, is to be carried by the Collector, as per the provisions of section 54,

Civil Procedure Code.(emphasis supplied)

12. Yet in another case in case of " Baban S/o

Shamrao Menghare & another V/s. Madhukar S/o Shamrao

Menghare & others" this Court has reiterated the view

taken in the case of " Kishan Bhikaji Dalvi (Since

deceased through L.Rs. Mohan Kisan Dalvi and others

V/s. Krishnabai Maruti Dalvi ", cited supra. This

Court in case of " Madhu Naryan Pawar deceased through

his Lrs. Balwant Mahadu Pawar & others" cited supra

has also taken a view that partition of agricultural

lands in execution of decree for partition, order

passed under Section 54 partitioning the properties,

appeal against such order maintainable before the

Additional Commissioner (Revenue).

13. In the facts of this case, it is true that

the respondent igNo. 1 may have grievance that the

Collector has not followed the provisions of Section

8(AA) of the Bombay Prevention of Fragmentation and

Consolidation of Holdings Act, 1947. However, the

proper remedy is to file the appeal. It is rightly

contended by the counsel for the petitioner that the

revenue authority is more competent authority to

decide any grievance about non observance and not

following the section 8(AA) of the Bombay Prevention

of Fragmentation and Consolidation of Holdings Act,

1947.

It is true that the Civil Court can see that,

Whether the Collector has followed the decretal

mandate or not and to that extent the Civil Court is

certainly empowered to do so. However, in the present

case, the respondent No. 1 did not participate in the

proceeding before the Collector, and also did not

raised any objection whatsoever and final decree was

drawn. Thereafter, the respondent No. 1 filed another

Dharkhast No. 50 of 2003. In the facts of this case,

the respondent No. 1 should have filed appeal before

the competent authority under Section 247 of the

Maharashtra Land Revenue Code, if he was aggrieved by

the action of ig the Collector in not properly

distributing the shares. Therefore, in my opinion, in

the lights of the Judgment in the case of " Paygonda

Survgonda Patil & others V/s. Jingonda Surgonda Patil

& others " and in case of " Baban S/o Shamrao Menghare

& another V/s. Madhukar S/o Shamrao Menghare & others

" cited supra, it is appropriate for the respondent

No. 1 to file appeal and second Dharkhast No. 50 of

2003 was not maintainable, in the given set of facts.

Therefore, impugned Judgment and order dated 16th

April, 2004 passed by the learned Civil Judge, Senior

Division, Sangamner, Dist. Ahmednagar in Special

Dharkhast No. 50 of 2003 is quashed and set aside.

The Civil Revision Application is allowed in terms of

prayer clause 'C' and disposed of.

15. It is needless to mention that if the

respondent No. 1 wish to file appeal aggrieved by the

Collector's decision, the appellate authority will

take into consideration the time consumed in

prosecuting the Dharkhast NO. 50 of 2003 and also

this Civil Revision Application at the time of

considering the point of limitation for filing the

appeal. The Civil Revision Application stands disposed

of. The original record, if any be sent back to the

concerned Court.

[S.S. SHINDE, J]

SDM*159.02 CRA