1 wp3536.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.3536 OF 2008 Santosh s/o Gobji Patil, deceased,through legal heirs: 1. Fakira s/o Santosh Patil age 34 years, occupation: Agriculturist. 2. Vatsalabai Santosh Patil age 65 years, occupation Household. 3. Aaba @ Sharad s/o Santosh Patil, age 27 years, occup.Agriculture, All r/of Chambardi (Khurda) Taluka Chalisgaon, Dist.Jalgaon. 4. Pushpabai w/o Prakash Mahale, age 45 years, occup. household. r/of Malegaon, Taluka Malegaon, District Nashik. 5. Sheelabai w/o Jamrao Patil, age 42 years, occup.household, r/of Kalyan, Taluka Kalyan, District Thane. 2 wp3536.08 6. Ashabai w/o Pandurang Patil, age 38 years, occupation: Agriculturist, r/o Tekwade, Taluka Chalisgaon, Dist.Jalgaon. Petitioners versus 1. Lahyabi w/o Mahadu Patil, age 77 years, occupation Household work. 2. Neelabai w/o Shivajirao Patil age 52 years, occup. household work. Both r/of V.T.Lane,Chalisgaon, District Jalgaon. 3. The Resident Nayab Tahsildar, District Jalgaon. 4. Manikrao B. Aher, age 40 years, occupation : Resident Nayab Tahsildar, Chalisgaon, District Jalgaon. 5. The Tahsildar, Chalisgaon, Taluka Chalisgaon, Dist.Jalgaon. 6. The Collector, Jalgaon, District Jalgaon. 3 wp3536.08 7. Learned Civil Judge, Junior Divn. Respondents Chalisgaon, District Jalgaon. (Deleted with the leave of Court dated 27.5.2008) ----- Shri P.R. Patil, Advocate, for the Petitioners. Shri R.F. Totala, Advocate, for Respondent No.2. Shri V.D.Rakh, A.G.P. for Respondent Nos.3,5 & 6. Coram: Naresh H. Patil and Shrihari P.Davare, JJ. Date : December 01, 2010 JUDGMENT (Per: Naresh H. Patil, J.) 01. Heard learned Counsel for the respective parties. 02. Rule. By consent, Rule made returnable forthwith. 03. This Petition arises out of the execution of the decree passed in Regular Civil Suit No.178 of 1987 on 13.10.1993. The petitioners were defendants in the suit. The suit was for partition and separate possession. The Civil Court directed partition of agricultural land to be effected through the Collector or any Gazetted Subordinate Officer appointed in this behalf as per the Partition Act and under Order XX, Rule 18 of the Civil Procedure Code. 04. Learned Counsel for the Petitioners Shri P.R. Patil submits that the provisions in respect of the Maharashtra Land Revenue Code, 1966 4 wp3536.08 and the Maharashtra Land Revenue (Partition of Holdings) Rules, 1967 were not followed by the Executing Officer. He submitted that the Objection Petition was filed on 26.5.2008 by one of the petitioners, addressed to the Tahsildar, Chalisgaon, which was not considered and decided. He also submits that Petitioner Nos. 4, 5 and 6 were not served with any notice. The counsel further contends that execution of the decree is in violation of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. 05. Writ Petition was filed on 27.5.2008. By an order dated 27.5.2008, interim relief was granted in favour of the Petitioners. 06. On behalf of the respondents, Naib Tahsildar, Mr. Manik Aher filed affidavit in reply. The deponent stated in para 14 as under : "14. I respectfully say and submit that, as per Notice issued by the respondent no.3, dated 15-5-2008, the process of handing over possession was completed on 26.5.2008 and this Hon'ble High Court has passed order on 27.5.2008 granting stay to the proceedings, which was communicated on 28.5.2008. As per the order passed by this Hon'ble High Court on 27.5.2008, this deponent has stopped further execution proceeding and not carried out the entries in favour of the respondent nos. 1 and 2by carrying out their names in the records of right of the said suit land and further proceedings are kept as it is. Except handing over physical possession and by preparing 5 wp3536.08 possession receipt and panchanama on 26.5.2008 further proceedings are stopped in view of the order passed by this Hon'ble High Court." 07. The contesting respondents also filed reply. Record and proceedings was called. A.G.P. Produced the same. Learned A.G.P. submitted that by a communication dated 28.5.2005 the Executing Officer had issued notices to the petitioners in respect of the measurement of the land which was fixed on 2.6.2005. The Petitioners did not cooperate in the execution proceedings. Therefore, there was no alternative than to proceed further and accordingly, the T. I. L. R. prepared a chart of measurement and in presence of Talathi, possession of the land, in accordance with the share allotted in favour of the original plaintiff, was handed over in their favour, though the petitioners were absent on the date of handing over possession i.e. 26.5.2008. 08. Learned Counsel Shri R.F. Totla appearing for respondent no. 2 submits that the petition raises disputed questions of fact. The petitioners could have agitated these issues before appropriate authorities, who were empowered to consider and decide the same. If the petitioners were aggrieved, they could have filed proceedings under the Maharashtra Land Revenue Code by way of appeal/revision. 09. Learned Counsel Shri Patil submits that the authorities did not pass any orders, against which the petitioners could further proceed 6 wp3536.08 in accordance with the Maharashtra Land Revenue Code. So, the petitioners could not resort to alternate remedies. 10. Admittedly, the decree of the Civil Court was confirmed by the Higher Court. It is informed by the Counsel that the Special Leave Petition preferred by the petitioners against the judgment and order passed by the High Court was dismissed by the Apex Court 11. We cannot lose sight of the fact that the parties were litigating the matter since the year 1987. The fruits of decree must flow and the parties must accordingly be put in possession of their respective shares of the property. 12. Learned Counsel for the parties submit that separate proceedings in respect of partition of the house property are going on. Thus, the issue in the present petition is partition of agricultural lands. 13. After perusing the record and the documents placed before us, we find that appropriate opportunity to participate in the proceedings of execution of decree passed by Civil Court in R.C.S. No. 178 of 1987, was not accorded to the present petitioners, by the officers concerned. One of the petitioners had filed Objection Application dated 26.5.2008, but the Officer concerned did not pass any order on the said application, which has caused prejudice to the petitioners. The 7 wp3536.08 proceedings of partition of the agricultural lands ought to have been carried out or proceeded in accordance with the provisions of the Maharashtra Land Revenue Code and Rules framed thereunder or under relevant rules. 14. From the record, we find that all the petitioners did not participate in the proceedings due to which it is necessary that fresh opportunity is accorded to the petitioners so that they may equally put up their case or objections, if any, during partition proceedings in respect of the suit properties. 15. For the reasons stated above, the impugned notice dated 15.5.2008 (Exhibit A to petition) is quashed and set aside. The matter is remanded back to the Collector, Jalgaon, with directions to execute the decree passed by the Civil Court in R.C.S. No.178 of 1987, strictly in accordance with law. If the Collector appoints a Gazetted Officer to execute the decree, then the Collector shall supervise the execution proceedings conducted by the Gazetted Officer so appointed. 16. In case the Collector, Jalgaon, is convinced that the measurement of the suit land already carried out is faulty and, therefore, the land is required to be remeasured, then the Collector/Gazetted Officer shall not insist for fresh fees for the said purpose, from the parties. 8 wp3536.08 17. Shri R.F. Totala, learned Counsel for Respondent No.2 submits that Respondent No. 2-original Plaintiff No.2 had already deposited an amount of Rs.18,000/= towards measurement fees. 18. All the petitioners/contesting parties or any legal representatives of the contesting parties to the suit, shall appear before the Collector on 20.12.2010 at 11.00 a.m. No separate notice for such appearance would be issued to the petitioners. The petitioners are at liberty to file objection application before the Collector or Gazetted Officer, even on the date of appearance i.e. 20.12.2010. 19. In case any objection application, or any other application is filed by the petitioners before the Collector or Gazetted Officer, the same shall be decided after hearing all the parties and in accordance with the law, by passing a reasoned order. 20. The Collector/Gazetted Officer shall complete the proceedings of execution of the decree passed by the Civil Court in R.C.S. No.178 of 1987, within three months from 20.12.2010. 21. The order granting interim relief passed by this Court on 27.5.2008 shall continue till 20th December 2010 and for three months starting from 20.12.2010 as mentioned earlier, or till finality of execution proceedings whichever is earlier. 9 wp3536.08 22. It is clarified that this Court has not expressed any opinion on the merits of the claims of the contesting parties in respect of the execution of proceedings. 23. The Collector or Gazetted Officer shall execute the decree of the Civil Court in accordance with law and thereafter submit a compliance report to this Court through the office of the Government Pleader. 24. Rule made absolute, accordingly. 25. All the parties be furnished authenticated copy of this judgment on their request, by following usual procedure. (SHRIHARI P. DAVARE, J.) (NARESH H.PATIL, J.) pnd/wp3536.08