Sudhakar Bhagwanro Nagargoje ... vs The District Collector And Others
2021 Latest Caselaw 15196 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                           WRIT PETITION NO.11745 OF 2021


Sudhakar S/o Bhagwanrao Nagargoje
Since died through his L.Rs.

1-A) Vasanti W/o Sudhakar Nagargoje,
     Age : 57 years, Occ. Household,

1-B) Hrishikesh S/o Sudhakar Nagargoje,
     Age : 25 years, Occ. Agri.,

     Both R/o Ahmedpur, Taluka Ahmedpur,
     District Latur.

1-C) Shreya Pankaj Patil,
     Age : 34 years, Occ. Household,
     R/o Niphad, Tq. Niphad, Dist. Nasik.

1-D) Radhika Hrishikesh Utpat,
     Age : 30 years, Occ. Household,
     R/o Pune.                                            .. PETITIONERS

      VERSUS

1)    The District Collector,
      Latur, District Latur.

2)    The Tahsildar,
      Ahmedpur, District Latur

3)    The Deputy Superintendent of
      Land Records, Ahmedpur,
      District Latur.
                                                          ..RESPONDENTS

                       .....


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Mr.Sachin S. Deshmukh, Advocate for the petitioners
Mr.D.R.Kale, Government Pleader, for respondents.

                       .....
                                     CORAM :        DIPANKAR DATTA, CJ &
                                                    MANGESH S. PATIL, J.

                                     DATE       :   22/10/2021

ORAL JUDGMENT : [PER MANGESH S. PATIL,J.] :-


1]    Rule. Rule is made returnable forthwith. The learned Government

Pleader waives service for all the respondents. At the request of the parties,

the matter is heard finally at the stage of admission.

2] The petitioners are aggrieved by refusal of the respondents to undertake

measurement of the properties in terms of a compromise decree dated

12/09/2003 passed in Regular Civil Suit No.205/2003 between the two

brothers Sudhakar and Prabhakar. The petitioners are the heirs of Sudhakar.

3] Sudhakar applied to the Tahsildar for measurement of one of the suit

properties bearing survey no.114 (Exh-B). The Tahsildar by his

communication (Exh.C) asked the Deputy Superintendent of Land Records to

act on the request of Sudhakar. By his communication (Exh-D) the Deputy

Superintendent of Land Records informed the Tahsildar that in view of the

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provisions of Section 85(2) of the Maharashtra Land Revenue Code, 1966

(hereinafter referred to as the Code) he could measure the land either on the

basis of a direction of the civil court or with consent of all the co-owners. He

also informed that there was an objection raised by Prabhakar to the effect

that there was an error in the decree. Later on Sudhakar through his advocate

issued a notice to the Collector and the Tahsildar to undertake the exercise of

measurement pursuant to the compromise decree. The Naib Tahsildar by his

communication in reply to the notice narrated the aforementioned history and

suggested that appropriate orders be obtained for such measurement from the

civil court which decreed the suit in terms of the compromise.

4]    Section 85 of the Code reads as under :



                 "85. Partition.

(1) Subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, a holding may be partitioned on the decree of a civil Court or on application of co-holders in the manner hereinafter provided.

(2) If in any holding there are more than one co-

holder, any such co-holder may apply to the Collector for a partition of his share in the holding :

Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a civil suit.

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(3) [The Collector] may, after hearing the co-holder, divide the holding and apportion the assessment of the holding in accordance with the rules made by the State Government under this Code.

(4) [* * * *]

(5) Expenses properly incurred in making partition of a holding paying revenue to the State Government shall be recoverable as a revenue demand in such proportion as the Collector may think fit from the co-holders at whose request the partition is made, or from the persons interested in the partition."

5] As can be seen from sub-section 1, a partition can be effected on the

basis of a decree of a civil court or on an application of the co-holders. True it

is that by virtue of the proviso to sub section 2, whenever any question as to

title is raised, no such partition can be effected until the question is decided by

a civil suit.

6] It is a matter of record that the Regular Civil Suit No.205/2003 was

decided in the form of a compromise deed entered into between the two

brothers Sudhakar and Prabhakar. It is, therefore, quite apparent that it was a

decree in terms of a compromise ordered by the civil court. Therefore, the

stand of the respondents that the measurement cannot be carried out for

want of a decree of a civil court, to our mind, is not sustainable on facts.

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7]    It does appear that the defendant Prabhakar raised some dispute before

the Deputy Superintendent of Land Records pointing out some error in the

decree. We need not go into these factual disputes. The fact remains that

there is a decree of a civil court and the petitioners made an innocuous

request to undertake the measurement in accordance with the decree.

Therefore, by virtue of the provisions of Section 85 of the Code, the

respondents were under statutory obligation to carry out the measurement to

demarcate the shares in accordance with this compromise decree.

8] Needless to state that if there is really some error in the decree and the

measurement or partition cannot be effected strictly in terms of the decree,

the respondents may for some objective reason refuse to effect the partition.

However, that can happen only if the exercise of carrying out measurement is

undertaken. It appears that without even indulging into that exercise, the

respondents have refused to carry out the measurement on unsustainable

grounds.

9] We, therefore, allow the writ petition. The respondents shall undertake

measurement under Section 85 of the Code in terms of the compromise

decree in Regular Civil Suit No.205/2003 on petitioners depositing necessary

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expenses under Section 85(5) of the Code. All such exercise shall be

completed as early as possible and in any event, within a period of three

months of petitioners depositing the expenses.

10]     The Rule is made absolute in above terms.




        [MANGESH S. PATIL, J.]                               [CHIEF JUSTICE]

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