(1) WP. 410.1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 410 OF 1993 1. Subhash Digambarrao Kalegore, Age : 45 years, Occu.: Service, R/o. Shivaji Nagar, Nanded 2. Smt. Chaturabai w/o Digambarrao Kalegore, Age: 70 years, Occu.: Household, R/o Shivaji Nagar, Nanded .. PETITIONER VERSUS 1. Prabhakar S/o Devidas Kalegore, Age : about 52 years, Occu.: Service, R/o. Loha, Tq. Loha, Dist. Nanded 2. The Divisional Commissioner, (Revenue), Aurangabad 3. The Collector, Nanded 4. The Tahsildar, at Loha 5. The State of Maharashtra, through Govt. Pleader, High Court, Appellate Side, Bombay Bench at Aurangabad .. RESPONDENTS Mr. M.V. Deshpande, Advocate for the Petitioner Mr. S.V. Kurundkar, Addl. G.P. for the respondent-State None present for the respondent no.1 though served ... CORAM : V.R. KINGAONKAR, J. DATED : 13TH JULY, 2010 ORAL JUDGMENT:- 1. By this Petition, the petitioners seek to (2) WP. 410.1993 challenge the judgment and order dated 30.12.1992 rendered by learned Additional Collector, Nanded, and judgment and order dated 18.1.1993 rendered by learned Additional Commissioner, Aurangabad. The petitioners are the original decree holders. They had filed suit for partition (R.C.S. 55 of 1980). The suit was decreed. The trial Court directed that they shall be delivered separate possession to the extent of 1/3rd share out of both the suit lands, namely, survey no.69-A and survey no.69-B. It appears that both the suit lands were divided by metes and bounds during course of execution of the decree. The work of execution of the decree was assigned to the District Collector, who in his term assigned it to the Tahsildar. The Tahsildar prepared panchanama dated 8.4.1991 regarding measurement of the suit lands. The Tahsildar executed the partition decree. The respondent no.1 preferred objection petition. His objection was allowed by the Additional Collector and also the Additional Divisional Commissioner. The Additional Divisional Commissioner directed that the Tahsildar shall take (3) WP. 410.1993 immediate steps to revive the measurement map and to hand over excessive possession, if it is found to have been received by the petitioners, to the respondent no.1. Thus, fresh measurement and execution of the decree was directed. 2. Heard learned counsel for the petitioners. Mr. Sakolkar appearing for the respondent no.1 did not turn up when the matter was called out. The respondent no.2 to 5 have not filed their reply affidavit. 3. Perusal of the final order of the civil Court in the suit for partition would show that both the lands were directed to be measured at the time of effecting partition. It appears that both the lands were not measured by the Tahsildar when the possession was handed over to the petitioners on 8.4.1991. It is obvious that there was no need to again get the land measured and keep the execution Petition alive. The petitioners were inducted in actual possession of the 1/3rd share as per the (4) WP. 410.1993 decree. The learned Additional Collector and the learned Additional Divisional Commissioner did not consider the fact that the question regarding error committed by the District Inspector of Land Records could not be a ground for upsetting the execution of the decree which was already effected. The Tahsildar had rejected the application of the respondent no.1 on the ground that the measurement could be challenged before the competent authority and that he was not required to order de-novo measurement. One cannot be oblivious of the nature of the decree. It being a partition decree, the Collector is the authority under section 54 of the Code of Civil Procedure to decide as to in which manner the land can be divided. The objection of the respondent no.1 was in respect of the improper measurement of the lands in question. Therefore, the respondent no.1 could be directed to get the lands privately measured or that to ventilate his grievances before the executing Court i.e. learned Civil Judge. It would be endless if again and again the lands are measured and the execution Petition is kept pending. (5) WP. 410.1993 4. In this view of the matter, the impugned judgments and orders are improper, illegal and liable to be interferred with. In the result, the Petition is allowed. The impugned judgments and orders are set aside. Rule made absolute accordingly. Sd/- [V.R. KINGAONKAR, J.] arp