1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 2398 OF 2010 (Viththalrao Nilkanthrao Deshmukh vs. Smt. Ushatai wd/o Madhukar Deshmukh & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 01, 2010. Heard Shri Mirza, learned counsel for the petitioner, Shri Joshi, learned counsel for respondent No.1 and Shri Fulzele, learned AGP for respondents No. 2 & 3. The present petitioner had approached Sub- Divisional Officer, Akot, earlier challenging the sale deed on the ground that it has resulted into creation of fragment. The said application was disposed of on 31.12.2003 while passing orders on said application after noticing that the transaction related to 80 R. i.e. 2 Acres and it did not constitute a fragment. The petitioner then filed revision before the Additional Commissioner, Amravati Division, Amravati, and that revision was dismissed on 19.10.2005. Thereafter the petitioner filed fresh application on 21.12.2006 before the Sub-Divisional Officer pointing out that the balance land left after excluding the land sold was a fragment. That grievance was accepted by the Sub-Divisional Officer and the review has been allowed on 30.03.2007. 2 The present respondent then filed Revision before the Additional Commissioner and that revision has been allowed after holding that SDO could not have reviewed its earlier order. Assailing this order, Shri Mirza, learned counsel contends that the proceedings filed by Respondent No. 1 were not a revision and in fact it was an appeal. He has further stated that total area of field was 3 Acres 26 Gunthas and out of it, about 2 Acres was sold by the petitioner to the father of respondent No.1 on 18.04.1980. That sale was in fact a money lending transaction. The remaining land of 1 Acre and 26 Gunthas was a fragment. He states that this situation was not looked into by the authorities and, therefore, the impugned order has been rightly reviewed by the SDO to bring it in conformity with legal provisions. He has also invited attention to earlier order dated 10.02.2006 passed by me in Writ Petition No. 389 of 2006 against the earlier order dated 19.10.2005 passed by the Additional Commissioner to state that this Court has found that the question whether remaining 1.26 Acre is fragment or not was never considered by the authorities. Shri Joshi, learned counsel has contended that the order of SDO dated 31.12.2003 attained finality when revision against it was dismissed on 19.10.2005. The statute does not permit any review and hence second application for the very same purpose, as filed was not maintainable. The SDO overlooked this aspect 3 and exercised review jurisdiction and that error has been corrected by the Additional Commissioner, Amravati, in the impugned order dated 20.01.2010. The perusal of earlier order passed by the SDO on 31.12.2003 shows that there the Regular Civil Suit No. 55 of 2010 filed by present respondent No. 1 was pointed out and adjudication dated 22.01.2001 was looked into. Issue No. 1 framed in that suit was whether sale deed was void-ab-initio. The SDO found that said sale deed dated 18.04.1980 was found not to be a fragment and void by Civil Court. The SDO, therefore, found proceedings not maintainable and dropped the same. The contention that transaction related to 80 R. and, therefore, it was not a fragment was accepted by SDO. The said order was then maintained by the Additional Commissioner in statutory revision. Writ Petition No. 389 of 2006 filed against it was rejected by this Court. Thus, the order of SDO dated 31.12.2003 merged with the order in revision and it was ultimately maintained by this Court on 10.02.2006 while rejecting Writ Petition No. 389 of 2006. It is, therefore, apparent that in view of the doctrine of merger, the petitioner could not have filed second application for same cause before the SDO. The cognizance of such application taken by SDO and order passed by it on 31.12.2003 are, therefore, misconceived. The Additional Commissioner has taken correct view of the matter. Shri Mirza, learned counsel has attempted to 4 point out that the adjudication by Civil Court has been challenged in Regular Civil Appeal and in Regular Civil Appeal reference has been made about creation of fragment by that Court. The perusal of application as filed by present petitioner before the SDO for review on 21.12.2006 does not show that the application was moved in pursuance to any reference as alleged. No such order is shown to this Court. Hence, it is made clear that if there is any valid and binding order of reference made by the Competent Court, the same is not affected by present adjudication. Writ Petition is, accordingly, rejected. No order as to costs. JUDGE *GS.