Jabbar Khan Mehboob Khan And ... vs District Collector And Others
2021 Latest Caselaw 11359 Bom

                                                                          921.WP.9037.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.9037 OF 2021

1.       Jabbar Khan s/o Mehboob Khan,
         Age : 68 years, Occu: Business,
         R/o : Rehmanya Colony, Rahim Nagar,
         Galli No.5, Aurangabad.

2.       Ghouse Khan s/o Mehboob Khan,
         Age : 51 years, Occu : Agriculture & Business,
         R/o: Galli No.5, Kiradpura,
         Aurangabad.

3.       Yusuf Khan s/o Mehboob Khan,
         Since Deceased through L.R's

3(i)   Shabana Begum Yusuf Khan
       Age : 40 years, Occu: Household,
       R/o: House No.4-11-84/P
       Rehmaniya Colony, Kiradpura,
       Aurangabad.
3(ii) Umar Khan s/o Yusuf Khan
       Age : 21 years, Occ: Nil,
       R/o: House No.4-11-84/P
       Rehmaniya Colony, Kiradpura,
       Aurangabad.
3(iii) Mariyam Bee D/o Yusuf Khan
       Age : 17 years, Occ: Nil,
       R/o: House No.4-11-84/P
       Rehmaniya Colony, Kiradpura,
       Aurangabad.
3(iv) Saad Khan s/o Yusuf Khan
       Age : 14 years, Occ: Nil,
       R/o: House No.4-11-84/P
       Rehmaniya Colony, Kiradpura,
       Aurangabad.

3(v) Osman Khan s/o Yusuf Khan
     Age : 9 years, Occ: Nil,
     R/o: House No.4-11-84/P
     Rehmaniya Colony, Kiradpura,
     Aurangabad.                                      ...       PETITIONERS
                                                              (Org. Plaintiffs)


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(Petitioner No.3 (iii) to 3(v) are minor under the Guardianship of Mother
Petitioner No.3(i) Shabana Begum Yousuf Khan)

                       VERSUS
1.       The District Collector,
         Collector Office, Aurangabad.
2.       Tehsildar,
         Tehsil Office, Aurangabad
3.       Mandal Adikhari / Talathi
         Sajha, Palsi,
         Taluka and District Aurangabad
4.       Kasabai w/o Ajabdas Shinde
         Age : 57 Occ: Household
         R/o: Palshi, Tq & Dist: Aurangabad
         through GPA
         Vikas Kaduba Pakhare
         Age : 51 years Occ: Agriculture
         R/o Varud Kazi, Tq. & Dist. Aurangabad       ...       RESPONDENTS

                                ...
Advocate for Petitioners : Mr. Kasliwal Ajit D.
Advocate for Respondents : Ms. Sanghmitra B. Wadmare
                                ...

                                    CORAM   :   MANGESH S. PATIL, J.

                                    DATE    :   20.08.2021

PER COURT :

                 Heard the learned advocate Mr. Kasliwal.

2. The only question that arises for determination in this Writ

Petition is as to if the petitioners who are the defendants in the suit for

partition, the decree in which has been put to execution and is sent to the

Collector under Section 54 of the Code of Civil Procedure can file a separate

suit for injunction against the Revenue Officials with a prayer that they shall

execute the decree in letter and spirit.

921.WP.9037.21.odt

3. The decree for partition has been passed at the instance of the

wife and two daughters of the common ancestral against his son Sominath

and the heirs of his deceased son Sandu. As can be seen the properties that

were involved were Gat Nos.20, 23, 90 and 97. It was averred as to how

Sominath and Sandu had sold several portions of these properties to the

defendant No.6 to defendant No.10. It was further averred that the portion

that was sold to defendant No.9 was further alienated by the latter to the

husband of the defendant No.11. The present petitioner No.1 and his father

were the defendant Nos. 12 and 13. The defendant No.11 had in turn sold

that 1/3 share from Gat No.90 to these two persons by two separate sale

deeds, a portion admeasuring 2 Acre 3 Guntha, and 2 Acre 4 Guntha

respectively.

4. The petitioner No.1 who was the defendant No.12 with his

brothers has now filed Regular Civil Suit No.627/2018 inter alia averring

that the Collector and the other Revenue Officials have not been executing

the decree passed in the earlier suit strictly in accordance with the terms and

conditions. They claim mandatory injunction directing them to do so and

further seek perpetual injunction restraining them from causing any

obstruction to their possession pursuant to partition to be effected in

accordance with the decree. Simultaneously they claimed temporary

injunction in terms of the main relief but the two court below have

dismissed the application and the Appeal. Hence this Writ Petition.

5. The learned advocate Mr. Kasliwal for the petitioners would

921.WP.9037.21.odt

harp upon Clause 5 of the operative part of the judgment and decree passed

in RCS No.610/1989 which reads thus:

"ORDER

1. The suit is partly decreed with proportionate costs.

2. Plaintiff No.1 is entitled to get 3 acres of agricultural land out of total agricultural land, admeasuring about 26 A 14 G, as her share.

3. Plaintiff Nos. 2 and 3 are entitled to get only 1 acre of agricultural land each out of 26 A 14 G agricultural land, as per law.

4. Plaintiff No.1 is also entitled to get 1/4th plus 1/20th share of the house properties and plaintiff Nos. 2 and 3 each are entitled to get 1/20th share of the house properties concerned.

5. As the plaintiffs themselves compounded the matter in R.C.S.

No.252/1994 and utilised the funds so received, i.e. Rs.60,000/-, fully for their purpose, which means that they got the benefit of total agricultural land, admeasuring about 15 A 18 G, which was one of the joint family property. So, in view of this state of affairs, they are not now entitled to get their shares again carved out from the other agricultural lands, which are already disposed off to other defendants concerned by executing the registered sale deeds.

6. The Court Commissioner be appointed for partitioning the house properties concerned, if the plaintiffs desire.

7. A preliminary decree be drawn up accordingly."

The learned advocate would emphasise on the last sentence

which according to him clearly debars the decree holders from getting any

share from the agricultural lands which have already been disposed of to

other defendants by executing registered sale deeds. The learned advocate

would submit that in spite of such specific direction, the Collector and the

other Revenue Officials are bent upon to allot the decree holder even the

shares from their land Gut No.90 which they have purchased.

6. The learned advocate would then submit that the bar contained

921.WP.9037.21.odt

under Section 47 of the Civil Procedure Code is not applicable to the

petitioners' case. Since the Collector and the other Revenue Officials are

bent upon to execute the decree without understanding its effect, the only

forum available for the petitioners is to file a separate suit. He would place

reliance on the decision of this Court in the case of Prakash Nathyaba

Bhosale Vs. Laxman Ganaba Bhosale; AIR 2003 Bom 41 and Mahadu @

Mahadeo Baji Bhosale Vs. Appaji Gunbarao @ Ganpatrao Bhosale (since

deceased) & Ors.; 2003 (1) ALL MR 1158.

7. The learned advocate Mr. Kasliwal would, lastly, point out that

already the Appellate Court by the impugned order has directed expeditious

disposal of the suit of the petitioners and the arrangement continues still

date. The whole purpose of filing the suit would be lost if in the meanwhile

the decree is executed.

8. I have carefully considered the submissions and the papers. One

need not over emphasize the importance of the provision of Section 47 of

the Civil Procedure Code. Any party to a suit who intends to dispute or raise

any grievances touching execution, discharge or satisfaction of a decree, is

not entitled to invoke a remedy of filing a separate suit but has to raise all

these issues before the executing court. This is what is precisely happening

in the matter in hand.

9. Admittedly, the petitioner No.1 and his father through whom

the other petitioners can be said to be claiming a right in the property were

the defendant Nos.12 and 13 in the original suit. If at all they have any

921.WP.9037.21.odt

grievance touching execution, discharge or satisfaction of the decree passed

therein, they are not entitled to put up any grievance by way of such

separate suit. It is to be noted that they are not seeking to dispute validity

of the decree on the ground that it be void under some law and cannot be

executed at all.

10. This is what has been observed and concluded in the case of

Mahadu @ Mahadeo Baji Bhosale (supra) wherein it has been specifically

laid down that in case after a decree for effecting partition is sent to the

Collector and he is effecting a partition contrary to the decreetal mandate,

the Civil Court does not become functus officio and it has jurisdiction to see

if the Collector has acted in accordance with the decreetal mandate. It was

therefore appropriate for the petitioner to approach the executing Court in

tune with these observations and not raise the issue by filing a separate suit

calling upon the Civil Court to consider the matter all over again. It is in

view of such state of affairs, there is a serious illegality in petitioners' suit.

11. There is one more aspect. Since the petitioners are now

claiming specific reliefs in the nature of mandatory and perpetual injunction

against the Revenue Officials restraining them from discharging their public

function pursuant to the decree sent under Section 54 of the Code of Civil

Procedure, there is a bar under Section 41 of the Specific Relief Act, 1963 in

issuing any injunction in the form in which the petitioners are claiming.

12. Apart from the above state of affairs even if now the matter is to

be considered on merits, touching the observations and conclusions in the

921.WP.9037.21.odt

Clause No.5 of the operative part of the order (supra), one needs to read

and understand these directions by reading the judgment as a whole. In

paragraph No.22 it has been specifically observed that the plaintiffs therein

were not bound by the alienation made by Sominath and Sandu. It is in the

later part in paragraph No.26 there is a discussion as to how the Regular

Civil Suit No.252/1994 was instituted in respect of a portion admeasuring

15 Acre 17 Guntha from the land Gat No.20 that was sold to the defendant

No.10 by Sandu. It was further noticed that the dispute was compromised

and it is pursuant to such compromise that the plaintiffs were not entitled to

claim any share in the land Gat No.20.

13. Admittedly, the present petitioners were not the parties to that

compromise. They are merely claiming their right pursuant to the sale

deeds executed by Sandu in favour of defendant No.9 in respect of a portion

of the land Gat No.90. Petitioners are claiming through the defendant No.9.

There is no other observation or conclusion to be found in the body of the

judgment and decree depriving the decree holders from claiming anything

from the land Gat No.90. One need not delve further as that may have a

bearing on decree being executed by the Revenue Officials. Suffice for the

purpose to observe that ex facie the directions in paragraph No.5 of the

operative part of the decree has the effect of refusing any share to the decree

holders in land Gat No.20 in respect of which the compromise was arrived at

and not to deprive them from receiving anything from land Gat No.90.

14. In view of such state of affairs, in my considered view there is

921.WP.9037.21.odt

no merit in the Writ Petition. The two courts below, for the reasons

mentioned in their respective orders have concurred in demonstrating as to

how the petitioners are not entitled to claim the relief and consequently I

find the observations and conclusions to be well reasoned and call for no

interference in this petition.

15. The Writ Petition is dismissed in limine.

16. It is made clear that the observations made herein above are

only for the purpose of deciding this Writ Petition and neither the Revenue

Officials nor the courts below shall feel influenced by them.

17. At this juncture, the learned advocate Mr. Kasliwal requests that

since 2018 there has been stay operating in favour of the petitioners and it

may be extended by further two weeks to enable the petitioners to take a

call pursuant to the observations made herein above.

18. When admittedly, a decree passed by the civil court which even

otherwise takes years to execute has been stayed for some reason or the

others since 2018, which has added to the delay, in my considered view, the

facts and circumstances do not warrant any such request to be conceded.

The request is rejected.

(MANGESH S. PATIL, J.)

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