Bombay High Court
Kamlakar S/O Parasram Pise And ... vs Bandu S/O Bhojraj @ Bhojya Bangde ... on 17 September, 2021
Bench: Avinash G. Gharote
WP1680.19.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1680/2019
Kamalakar Parasram Pise and ors...Versus... Bandu Bhojraj Bangde and ors
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri A.S.Kulkarni, Advocate for petitioners.
Shri M.R.Joharapurkar, Advocate for Respondent Nos. 1 to 6
Smt. Barabde, AGP for Respondent No.7
CORAM : AVINASH G. GHAROTE, J.
DATE : 17/09/2021
1] Mr. Kulkarni, learned counsel for the petitioner,
submits that Regular Civil Suit No.1203/06 (Bandu Vrs.
Shantabai and ors), a suit for partition, came to be decreed
on 30.04.2010, by the trial Court, in which the plaintiff, was
held entitled to 1/20th equal share in the suit property in
Schedules A and B of the plaint.
2] The defendants challenged the decree of the trial
Court by filing Regular Civil Appeal No. 461/10, in which the
original plaintiff also filed a cross objection. By a decree
dated 16.08.2014, the appeal came to be dismissed and the
cross-objection came to be allowed partly, declaring that the
plaintiff was having 3/150th share in the suit properties.
Second Appeal No. 449/14 by the original defendant came to
be dismissed on 20.06.2018, as a result of which the
WP1680.19.odt
judgment passed by the learned Appellate Court in First
Appeal No.451/2010, dated 16.08.2014 became final. A
precept under Section 54 of C.P.C was accordingly sent to the
learned Tahsildar on 01.08.2017, which directed the learned
Tahsildar to make partition and separate possession of the
suit property as per the decree of the court dated
30.04.2014.
3] It is submitted by Mr. Kulkarni, learned counsel
for the petitioner that there is no decree dated 30.04.2014
and what was extant and prevailing between the parties was
the decree passed by the Appellate Court dated 16.08.2014.
He further submits that the learned Tahsildar, in pursuance to
the precept, divided the entire property equally, which was
not permissible, as the division had to be in consonance with
the judgment of the Appellate Court, dated 16.08.2014.
4] Mr. Joharpurkar, learned counsel for
Respondents/Original Plaintiffs agrees to the position that
there is no such decree dated 30.04.2014, as mentioned in
the precept dated 01.08.2017 and therefore, the division by
the learned Tahsildar of the scheduled property in equal
parts was incorrect.
5] In view of the above admitted position, the
precept dated 01.08.2017 and the subdivision made in
WP1680.19.odt
pursuance thereto, cannot be sustained and the same is
therefore, quashed and set aside. The learned Trial Court,
which passed the decree dated 30.4.2010, is directed to
prepare a precept in terms of the decree as passed in Regular
Civil Appeal 461/2010, dated 16.08.2014, and send it to the
Tahsildar, who shall act in consonance thereto.
6] The petition is allowed in the above terms.
Needless to mention that if any person has a right or claim in
the scheduled property in pursuance to the judgment of the
Hon'ble Apex Court in V.Sharma vrs. R. Sharma 2020 (9)
SCC 1, the same shall be open to be agitated.
JUDGE
Rvjalit
