1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 146 OF 2009 (Gangubai Pandurang Idhole vs. Chandrabhagabai Bhagwat Kute & Ors.) and WRIT PETITION NO. 4831 OF 2004 (Gangubai Pandurang Idhole vs. Chandrabhagabai Bhagwat Kute & 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. JULY 01, 2010. Both writ petitions can be disposed of with common order. The Executing Court has by impugned order passed below Exh. 3 on 04.10.2008 increased the share of decree holder (Respondent No. 1 – Chandrabhagabai) in both matters from 1/3rd to 7/15th after noticing that she is Class – I heir of the deceased father/ mother-in- law. Shri Gawali, learned counsel for the petitioner contends that in Execution, under the presumption that the property or share of deceased father/ mother-in-law devolves by way of intestate succession, the share of decree holder has been increased but there is a Gift deed dated 24.10.1985 executed by the deceased in favour of the petitioner and hence decree holder does not get any share. According to him, the impugned order, therefore, needs to be quashed and set aside. 2 Shri Joshi, learned counsel for respondent No.1 points out that said Gift deed was pointed out in Regular Civil Appeal after trial Court decided the suit on 25.08.1983. RCA came to be decided on 23.03.1993 and in it all legal heirs of deceased father-in-law were permitted to contest. This finding has been recorded by that Court after sending matter back to trial Court to hold enquiry and the finding was not assailed either in RCA or then in Second Appeal before this Court which came to be decided on 26.02.2009. In view of this position, according to him, the alleged dated 24.10.1985 is not relevant at this stage and cannot be pressed into service for any purpose. Shri Gawali, learned counsel points out that in RCA only question was of identity of legal heirs to be brought on record to prosecute the matter further and hence under order 22, Rule 5 of Civil Procedure Code, limited issue was remitted to trial Court. The result of that enquiry does not in any way eclipse the title and entitlement of parties on merits. The law on the point is well settled. The decision in enquiry under Order 22, Rule 5 of CPC is not determinative of title to any property in any way. The finding reached therein and used for prosecuting the RCA further, therefore, is not relevant when the Gift Deed dated 24.10.1985 is being pressed as title document into service in execution. The Executing Court, therefore, erroneously increased the share of 3 decree holder from 1/3rd to 7/15th. The said order passed below Exh. 3, therefore, quashed and set aside. That Exh. 3 is restored back to file of the Executing Court for fresh decision. The Executing Court shall decide the share of Gangubai after giving necessary opportunity to the respective parties to lead appropriate defence and on point of the alleged Gift Deed dated 24.10.1985 in her favour. In Writ Petition No. 4831 of 2004, the petitioner – Gangubai has challenged the orders passed by the Tahsildar, Sub-Divisional Officer and Additional Commissioner in proceedings under Maharashtra Land Revenue Code. Shri Dhanagare, learned counsel for the petitioner in this petition states that because of order passed in Writ Petition No. 146 of 2009, the orders restoring portion or share to Respondent No. 1 – decree holder automatically falls. Shri Joshi, learned counsel states that the orders at the most may entitle Respondent No. 1 – decree holder to more share and share cannot decrease in any way. Whether the share of Respondent No. 1 – Chandrabhagabai increases or decreases cannot be gone into by this Court as the alleged Gift deed dated 24.10.1985 has yet not been established. It is apparent that the said aspect can be looked into by the Executing Court as and when occasion therefor arises. In view of the arguments advanced, it is 4 apparent that the challenge in Exh. 3 dated 04.10.2008 need not be gone into further. Accordingly, Writ Petition No. 146 of 2009 is allowed and Writ Petition No. 4813 of 2004 is disposed of as infructuous. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE *GS.