1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7620 OF 2009 Padminibai w/o Ratan Telang .. Petitioner Versus Mehboob Babarai Deshmukh & Ors .. Respondents .... Shri S.V.Natu,Adv.for petitioner. Shri V.D.Salunke,Adv.for Respondent. .... CORAM : R.K. DESHPANDE, J. DATE : 8th JUNE, 2010. ORAL JUDGMENT : 1] This petition is preferred by the original complainant, challenging the order dated 26/6/2009 passed in Appeal under 2 Section 247 of the Maharashtra Land Revenue Code, 1966 by the learned Additional Commissioner, Aurangabad Division Aurangabad, setting aside the order dated 17/3/2005 passed by the Additional Collector, Latur in File No.2004/Civil Suit- CR/353. The learned Additional Commissioner has remanded the matter to the Additional Collector, Latur with a direction to enquire into the matter afresh after giving sufficient opportunity of hearing to both the parties and then to decide the case in the light of its own merits. He has further directed the Additional Collector, Latur to consider the directions given by the Civil Judge, Junior Division,Ausa. in the decree passed in Regular Civil Suit No.56/1982. 2] The learned Joint Civil Judge, Junior Division, Ausa has decided Regular Civil Suit No.56/1982 for partition and separate possession filed by the present petitioner/plaintiff. The operative part of the decree is reproduced below : “ The suit is partly decreed with proportionate cost as under. The plaintiff is entitled for partition and separate possession in a suit property to the extent of 2/3rd share. The deft. no.1 shall have 1/3rd share in it. The agril. lands be partitioned by the Collector or through his subordinate Gazetted Officer with a direction that if 3 equitable partition can be done, the property purchased by the defts. no.2 and 3 i.e. 7 acres 34 gts. out of field Sy.No.81 and western 3 acres out of Sy.No.45K be allotted to the share of deft. no.1. The rest of the claim in respect of preemption is hereby dismissed. The deft.no.1 to bear her own costs. Preliminary decree be drawn accordingly.” 3] The matter was thereafter taken up by the learned Additional Collector for partition and separate possession in view of the decree passed by the trial Court. Learned Additional Collector, Latur passed order for partition and separate possession. While passing such an order, it was held that the equitable partition cannot be done by allotting the property purchased by the Deft.No.2 and 3 i.e. 7 Acres 34 Gunthas out of field Survey No.81 and western 3 Acres out of Survey No.45K to the share of defendant no.1. This was the subject matter of challenge in Appeal filed under Section 247 of the M.L.R.Code registered as Case No.2005/ROR/A/91 before Additional Commissioner by the purchaser. In Appeal, it has been held that the Additional Collector, Latur has not considered the main point which is crux of the case that the appellants have purchased the land by registered sale deed. It 4 has been held that the lower authority has not followed directions given by the Civil Court while decreeing the suit that the properties purchased by the appellants should be allotted to the share of respondent no.2 i.e. original deft.no.2. 4] Shri Natu, learned counsel for the petitioner has challenged the findings recorded by the learned Additional Commissioner,Aurangabad Division, Aurangabad in the impugned order. He submits that the learned Additional Commissioner has directed the Collector to follow the directions given by the Civil Court in a decree in respect of property to be allotted to the share of the deft.no.1. He further urged that the learned Additional Commissioner has virtually held that the direction given in a decree passed by the learned Jt.C.J.J.D. in Civil Suit No.56/82 to allot the property purchased by the original deft.nos.2 and 3 i.e. 7 Acres 24 Gunthas out land survey no. 81 and western 3 Acres out of Survey No.45K should be allotted to the deft.no.1 is mandatory. According to him, the Civil Court has clearly stated in the directions that if the equitable partition can be done, then concerned portion may be allotted to the share of deft.no.1. According to him, this is not the mandatory direction and the learned Additional Commissioner has misconstrued the same. 5] Shri V.D.Salunke, learned counsel for respondent, on the other hand, has submitted that the learned Additional 5 Commissioner has no where held in the order that the direction given in the operative part of the decree dated 6/7/1991 to allot certain properties to deft.no.1 is mandatory. He further submits that the finding recorded by the learned Additional Commissioner that the lower Court has not properly followed the direction given by the Civil Court while decreeing the suit that the properties purchased by the appellants should be allotted to the share of the respondent no.2 (Deft,No.1), means that the lower authority to consider the directions given by Civil Court and the same is not intended to say that the directions issued by Civil Court is mandatory. 6] In the light of the submissions made by Shri Salunke for respondent, it cannot be said that the learned Additional Commissioner has held that the directions in the decree to the effect that the property purchased by deft.nos.2 and 3 i.e. 7 Acres 34 Gunthas out of survey no.81 and western 3 Acres out of survey no.45K is to be allotted to deft.no.1 is mandatory. What has been held is that the learned Additional Collector, Latur should consider the directions of the Civil Court in its proper perspective to find out whether equitable partition can be done by allotting the concerned portion of the property to the share of the deft.no.1. In view of this clarification, I do not think that the case is made out for interference in the order passed by learned Additional Commissioner, Aurangabad, which is impugned in the present petition. 6 7] In the result, there is no substance in this petition. However, it is made clear that the directions issued by the Civil Court cannot be construed as mandatory directions, but what the Additional Collector is required to see is to consider the said directions, while deciding the question of equitable partition. There shall be no order as to costs. [R.K. DESHPANDE, J.] umg/wp7620-09