1 WP 7480.2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7480 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. S.S.Tope, Advocate for the petitioner. Mr. N.B.Patil, Asstt. Govt. Pleader for State. Mr. J.R.Patil, Advocate for Resp. No. 5. Mr. A.A.Nimbalkar, Advocate for Resp. No. 6 to 11. ......................... CORAM : S.V.GANGAPURWALA, J. DATE : 14/11/2011. PER COURT : 1. The Suit was filed for partition and separate possession by the present respondent. The Suit was decreed. The District Court modified it to the extent that the present petitioner is entitled for 2/7th share in the total suit property and other respondents are entitled for their share as per the decree modified by the District Court in the suit property. The said decree is confirmed up to the Apex Court. The plaintiff 2 WP 7480.2011 thereafter proceeded for execution and the matter was sent to the Additional Collector for partition of the suit lands. The T.I.L.R. conducted the measurement and allotted land to respondent no. 5 from G.Nos. 400 and 401. The same was assailed by the present petitioner in the Revision. The said Revision came to be dismissed. Aggrieved thereby the present Writ Petition is filed. 2. Mr. Tope, the learned counsel for the petitioner submits that the Order of the District Court is to allot 2/7th share to the petitioner from all the suit lands. There were eight ( 8 ) survey numbers constituting the suit lands. As such, from each and every suit land, the petitioner should be allotted 2/7th share. The partition done by the authority is not in consonance with the said decree and respondent no. 5 is allotted his share from only two ( 2 ) gat numbers i.e. 400 and 401 instead of all the eight ( 8 ) gat numbers. The learned counsel contends that the same is an error and if the authority comes to the conclusion that the fragment is to be created, then the compensation can be awarded. 3. Mr. J.R.Patil, learned counsel for respondent no. 5 supports the order. 4. No doubt, the decree passed by the District Court and 3 WP 7480.2011 confirmed up to the Apex Court shows that the petitioner is entitled for 2/7th share in all the suit properties. When the partition is to be made and 2/7th share is to be carved out, the same shall be carved out so that it would be practicable and also the caution will have to be taken that the said partition does not create fragment. Some of the gat numbers measure only 72 R., 85 R. and 92 R. Carving out seven ( 7 ) shares from each gat numbers would be impartible and would also not be feasible for actual cultivation. Carving out share from two ( 2 ) gat numbers to respondent no. 5 was practicable and in consonance with principles of justice, equity and good conscience, so also as per the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947. It is not the case of the petitioner that some of the lands are fertile and more valuable than others. 5. In such circumstances, no error is committed in passing the impugned order by the authority. The petitioner shall be entitled to his 2/7th share. 6. The Writ Petition is accordingly dismissed. No costs. 7. Mr. Tope, the learned counsel for the petitioner seeks stay to the order. The present order is stayed for the period of two ( 2 ) weeks from today i.e. 28/11/2011. Needless to state 4 WP 7480.2011 that on the lapse of two ( 2 ) weeks, the stay shall be automatically vacated. [ S.V. GANGAPURWALA,J. ] KNP/WP 7480.2011