Tukaram Kedari Kalbhor Since ... vs Dattu Tukaram Kalbhor Since ...
2021 Latest Caselaw 283 Bom

            Digitally signed by
Smita       Smita Gonsalves

Gonsalves   Date: 2021.01.08
            14:12:29 +0530

      sg                                                                   34. wpst97237-20

                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                           CIVIL APPELLATE JURISDICTION

                                    WRIT PETITION (STAMP) NO.97237 OF 2020

            Tukaram Kedari Kalbhor & Ors.                                   ...Petitioners
                  vs.
            Dattu Tukaram Kalbhor and Ors.                                  ...Respondents
                                                ....
            Mr. A.V. Anturkar, Senior Advocate, i/b. Mr. Sugandh B. Deshmukh, for the
            Petitioners.
                                                ....
                                             CORAM : S.C. GUPTE, J.

                                                      DATE     : 6 JANUARY 2021

            P.C. :


            .                     This writ petition challenges an order passed by the executing

court on the application of the Petitioners (original judgment debtors). The plaintiff's suit in the present case was for partition of property. The suit was dismissed by the trial court. The first appellate court, however, allowed the appeal by an order dated 21 February 2005. A second appeal from that order was dismissed by this Court on 31 March 2016. The matter was carried in the meantime by the decree holder to the executing court, whereupon, a precept appears to have been issued to the District Collector to propose physical partition of the suit property. It is the Petitioners' case that a notification specifying the concerned village/area containing the suit land has been issued under Section 11 of the Maharashtra Project Affected Persons Rehabilitation Act, 1999. It is submitted that in accordance with Section 12(1)(c) of that Act, no agricultural land in the notified villages/areas, including the suit land, can be partitioned (including partition by a decree or order of any court or any

sg 34. wpst97237-20

other competent authority). The notification of 31 October 1985 issued by the State Government in this behalf was part of the proceedings before the executing court. The executing court, however, refused to take note of the notification, purportedly on the ground that the judgment debtors had earlier opportunities to raise this objection but had failed to do so. In these facts, let a notice be issued to the Respondents returnable on 3 February 2021. Humdast permitted. In the meantime, till the next date, though proceedings for partition before the District Collector may proceed, no steps should be taken for delivery of possession of any portion of the property to any party until the next date.

(S.C. GUPTE, J.)