( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 7060 OF 2008 Bhagirathibai Vishwanath Mohite (Patil) PETITIONER VERSUS Additional Collector, Latur and others. RESPONDENTS ..... Mr. S.S. Halkude, advocate for the petitioner. Mr. D.R. Kale, AGP for the respondents/State. Mr. H.V. Patil, advocate for respondent No.4. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 1st February, 2010] PER COURT : 1. The petitioner is original decree-holder. The suit (R.C.S. No. 6/1974) for partition and separate possession was decreed. She filed execution proceedings vide Regular Darkhast No. 26/2000. 2. The decree was sent for execution under section 54 of the Civil Procedure Code to the Collector. The Collector directed execution of the decree after a ( 2 ) measurement map was drawn by the Cadastral Surveyor. The division was accordingly made. 3. The respondent No. 4 objected the execution of the decree on the ground that the partition was against the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. It was contended that the partition was likely to cause small fragments of 7 Ares, 11 Ares area and, therefore, the decree was inexecutable. The objections of the respondent No. 4 were repelled by the executing Court. The respondent No. 4 challenged the order rendered in the execution proceedings by the Collector by filing appeal (ROR/A/96/2007) which came to be allowed. The learned Additional Commissioner, Aurangabad Division held that remeasurement of the agricultural lands in question was necessary and, therefore, for afresh decision, the matter was remanded to the Additional Collector, Latur. The appellate authority noticed that as per the panchanama dated 30-11-2005, fragments have been caused and delivered to the petitioner which is improper and violative of section 8 of the Bombay ( 3 ) Prevention of Fragmentation and Consolidation of Holdings Act, 1947. 4. Mr. Halkude submits that he has no objection for afresh hearing by the Collector and the measurement as directed by the appellate authority subject to the conditions that the cost of fresh measurement shall be borne by the respondent No. 4, at whose instance the remand order is rendered. He submits that the small fragments, though apparently are created, yet, they have been annexed with other big chunks of the lands and, therefore, there is simultaneous consolidation which is permissible under the enactment. 5. By consent, the petition is disposed of with direction that the learned Collector may permit remeasurement of the lands in question if the necessary cost of measurement is borne by the respondent No. 4 – Prabhakar. The issue whether the partition is violative of the relevant provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 shall be considered on merits and is kept open. In the ( 4 ) meanwhile, the parties to maintain status quo. The Collector to decide the matter afresh as directed by the appellate authority within period of eight (8) months as far as possible. All other objections and legal issues are kept open. The petition is accordingly disposed of. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp7060-08