1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2691 OF 2008 Pandurang Vithoba Raut (since deceased) through LRs 1.Hari Pandurang Raut & Ors. .. Petitioners. Vs. Pandurang Shrirang Mane (Since deceased) through Lrs Amritrao Pandurang Mane-Deshmukh .. Respondents. Mr.K.B.Sonwalkar for the petitioners. Mr.Rupesh Bobade for the respondents. CORAM : D.B.BHOSALE, J. DATED : 29/09/2010. PC: 1. By this writ petition, the petitioners – judgment-debtor have impugned the order dated 14.1.2008 passed by the Joint Civil Judge, Junior Division, Malshiras Dist.Solapur on the application at Exhibit-25 in Regular Darkhast No.42 of 1996. I have perused the application at Exhibit-25. By this application the respondent – judgment-debtors sought direction to the revenue authorities to enter their names in the record of rights in respect of the suit property to the extent of 91R land out of Gat No.79. By the impugned order the court below has not granted the prayer, and having considered overall facts and circumstances of the case in paragraph 9 and 10 of the order made the following observations: S 2 “.... .... .... In present case, suit is compromised and parties have made an agreement that block G.No.79 will be subdivided after measurement on the basis of decision of Tenancy Court. No doubt, the defendant has admitted title of the plaintiff in 91R land out of G.No.79. The Civil Court has jurisdiction to record compromise in respect of title of plaintiff in 0.91 R land. However, sub-division of block G.No.79 cannot be without previous sanction of Collector as per provision under section 31(1)(b) of Fragmentation Act. Mere parties agreed that they would sub-divide block after measurement, on that count only it cannot be said that decree is without jurisdiction of Civil Court. The said decree can be executed after obtaining prior sanction of Collector by the plaintiff. Therefore, there is no substance in submission of advocate Shri Kalsule, that said decree is illegal and nullity. He has not shown any other provision of Fragmentation Act from which it can be said that, decree is passed without jurisdiction of court. No doubt, as per Section 36A of Fragmentation Act, Civil Court has no jurisdiction to decide, settle and deal with any question by which or under this Act required to be settled, decided or dealt with by State Government or any Officer or Authority. However, in present case, plaintiff’s title is admitted by the defendants in compromise decree. Therefore, the question was 3 exclusively within the jurisdiction of Civil Court. The question of sub-division of block is within the jurisdiction of Collector as per section 31(1)(b) of Fragmentation Act. Now the plaintiff has to approach to Collector for sanction for breaking-up block and to get actual possession of suit land in accordance with decree of Civil Court as held in case of Sidagonda (supra). After getting actual possession of 91R land through Collector, then plaintiff would be entitled to record his name to said land. Till that his application below Exh.25 would be pre-mature. In this view of matter, it is necessary for the plaintiff to approach Collector with decree for sub-division of block No.79 as per terms and conditions of compromise decree.” After having made the aforementioned observations, instead of granting prayers made in the application at Exhibit-25, the court below has observed as under “The applicant to approach to Collector with decree for breaking up or sub-division of block No.79 as per Section 31(1)(b) of Fragmentation Act”. From bare perusal of the impugned order it is clear that the court below has simply allowed the applicants to approach the Collector with decree for breaking up or sub-division of block No.79 as per provisions of the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947 (for short “the fragmentation Act”). In view of this learned 4 counsel appearing for the respondent submits that the respondent – decree-holder desire to approach the Collector for appropriate orders. In view thereof Mr.Sonwalkar, learned counsel for the petitioners submits that if all the contentions of the petitioners are kept open, to be raised either before the Collector or in the Darkhast proceedings, the rights of the petitioners shall remain protected. In view of the submissions of learned counsel for the parties, in my opinion, the following order shall meet the ends of justice: It is open to the respondent – decree-holder to approach the Collector with the decree as observed in the impugned order. While making this observation I shall not be understood to have examined merits of the case and expressed any opinion on rights of the parties. All contentions of the parties are kept open to be considered and decided by the Collector and in the event the respondent – decree-holder approach the Collector, as observed in the impugned order, within four weeks from today. The Collector shall endeavour to dispose of the proceedings expeditiously. With these observations the writ petition is disposed of. Rule is discharge in aforesaid terms. (D.B.Bhosale, J.)