Sk. Mastan Mohd Hayat vs Mrs. Mannabee Sk. Munno And 4 ...
2016 Latest Caselaw 1646 Bom

                                                                                  wp5163.14
                                             1




                                                                               
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR.




                                                       
                          WRIT PETITION      No. 5163 OF 2014


    Sk. Mastan Mohd. Hayat,
    aged about 57 years,




                                                      
    Occupation : Agriculturist,
    r/o Amdapur, Tq. Chikhli,
    District Buldana.                            .... PETITIONER.




                                          
                              VERSUS


    1. Mrs. Mannabee Sk. Munno
                               
       aged about 59 years,
                              
       Occupation : Housewife,
       r/o Taj Nagar, Nagpur.


    2. Mrs. Meenabee Sk. Salim,
      


       aged about 47 years,
       Occupation : Housewife,
   



    3. Mohd. Hasham Mohd. Suleman,
       aged about 55 years,
       Occupation : Agriculturist.





    4. Kausharbee Mohd. Riyaz,
       aged about 49 years,
       Occupation : Household,
       all r/o Taj Nagar, Nagpur.





    5. Collector,
       Buldana.                         ....  RESPONDENTS.


    Shri R.L. Khapre Advocate for the Petitioner.
    Shri S.O. Ahmed Advocate for respondents 1 to 4.
    Shri Amit Balpande, AGP, for respondent no. 5.
                                     .....




      ::: Uploaded on - 25/04/2016                     ::: Downloaded on - 29/07/2016 23:03:19 :::
                                                                                   wp5163.14
                                               2



                                         CORAM : S.B. SHUKRE, J.

DATED : 20.04.2016.

ORAL JUDGMENT :

Heard. Rule. Rule made returnable forthwith. Heard

finally by consent of parties.

2. By this writ petition, the petitioner/one of the

Decree-holders has challenged the legality and correctness of

the order dated 19.7.2014 passed by the Executing Court, Civil

Judge, Jr.Dn., Chikhli, thereby upholding the objection taken by

the respondents 1 to 4 under Section 47 of Code of Civil

Procedure for execution of the decree.

3. The main ground on which the objection was taken

was that the Naib Tahsildar while effecting the partition by metes

and bounds by his order dated 06.9.2013 in fact change the Gat

numbers and also fixed the shares of the petitioner and

respondent nos. 1 to 4 in the manner inconsistent with the

decree passed by the Civil Court.

4. While upholding the objection, learned Civil Judge,

Jr.Dn., found that the Naib Tahsildar committed wrong in

wp5163.14

holding that one of the suit properties was bearing Gat No. 383

instead of Gat No. 33 and accordingly proceeding to allot the

shares in the suit property to the petitioner and the respondent

nos. 1 to 4. The learned Civil Judge observed that no documents

were placed on record to show that Gat No. 33 and Gat No. 383

were one and the same property. It is also observed that Gat

No. 33 could not have been changed to Gat No. 383 over night

without following ig proper procedure. Learned counsel for

respondent nos. 1 to 4 submits that the proper procedure in this

case would have been filing of a report by the Naib Tahsildar to

the Civil Court stating that Gat No. of this property was not 33 but

383, which has not been done in this case.

5. There is no doubt about the fact that proper

procedure in this case would have been filing of a report, as

suggested by learned counsel for the respondent nos. 1 to 4.

But, one has to see as to whether or not in the absence of any

such report having been filed, any failure of justice has

occasioned. If the answer is in the negative, then, I do not think

that any interference in the order dated 06.9.2013 of Naib

Tahsildar would be justified at the stage of execution of decree

at the hands of executing court, as has been done in the present

wp5163.14

case.

6. In the instant case, there is no dispute about the

identification of the suit properties and one of such properties

has been described to bear Gat No. 33, although correct number

ought to have been mentioned as Gat No. 383. This position is

well known to parties and admittedly there is no such property

as Gat No. 33 in possession of respondent nos. 1 to 4 or the

petitioner. What is in possession is Gat No. 383 and the

properties in possession only are the suit properties. Therefore,

I find that by passing of such an order by the Naib Tahsildar no

prejudice has been caused to the said respondents nor any

failure of justice has resulted. It appears that the learned civil

Judge, Jr.Dn., has only considered the technicality and not the

pithiness of the issue. When there is no dispute about

identification of the property, I do not think that even if proper

procedure is followed, there would emerge some different

result. If the end product is going to be the same, insistence on

following proper procedure would serve no purpose, except to

delay the execution of decree. In these circumstances, I find

that there is no substance in the objection taken before the

learned Civil Judge and the impugned order cannot be sustained

wp5163.14

in law.

7. In the result, writ petition is allowed. Impugned

order is quashed and set aside. Order dated 06.9.2013 passed by

the Naib Tahsildar is hereby confirmed.

Rule is made absolute in these terms. No costs.

                                   ig                   JUDGE
                                 
    /TA/