1 mss CAS650 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL APPLICATION NO. 650 OF 2009 IN SECOND APPEAL NO. 137 OF 2009 Ramchandra Surba Sawant (Decd.) through his LRs. Smt. Sitabai Ramchandra Sawant & Ors. .. Applicants Vs. Sou. Pramila Prakash Khandare & Anr. .. Respondents Mr. G.B. Pawar h/f P. P. Shinde for the applicants Mr. R. S. Gavankar for R-1 & 2 CORAM: G. S. GODBOLE, J. DATED: 7/10/2011 P.C. This civil application seeks stay of execution of the impugned judgment, order and decree dated 16/9/2008 passed by learned District Judge-I, Sindhudurg at Oros in Regular Civil Appeal No. 54/2006. Respondents filed Regular Civil Suit No. 65 of 2000 in the court of learned C.J.J.D., Sawantwadi for perpetual injunction and in 2 mss CAS650 the alternative for partition of the suit properties bearing Gat No. 23 and 439. By judgment and order dated 8/2/2006 learned Joint C.J.J.D, Sawantwadi passed the following order: “1. The suit of the plaintiffs is hereby partly decreed. 2. The legal heirs of Defendant No. 1, Defendant Nos. 2 & 3, their servants, agents or anyone on their behalf are hereby restrained from interfering with peaceful possession of plaintiffs in house No. 282 and the land thereunder which is situated in Gat No. 23 of village Danoli, Tal. Sawantwadi, Dist. Sindhudurg till the defendants get the possession of the said house and the land thereunder by adopting due procedure of law. 3. The suit of the plaintiffs so far as remaining area of Gat No. 23 andGat No. 439 is concerned stands dismissed. 4. Considering the reliefs granted, both the parties are hereby directed to bear their own costs. 5. A decree be drawn up accordingly. Date: 08.02.2006 Sd/- (V.B. Kakatkar) Jt. CivilJudge (J.D.) Sawantwadi.” 2. This decree was challenged by the original plaintiffs by filing Regular Civil Appeal No. 54 of 2006 in the District Court, Sindhudurg 3 mss CAS650 at Oros. Prima facie there is nothing to indicate that the original defendants who are appellants herein filed any appeal or cross objection in respect of clause 2 of the decree of the trial court. By the impugned judgment and order referred to above, learned District Judge-I, Sindhudurg at Oros has allowed the appeal and the following order is passed: “(1) The appeal stands allowed. (2) The Judgment and Decree delivered in R.C.S. No. 65/2000 stands set aside. (3) The suit to claim relief of perpetual injunction stands dismissed. (4) It is hereby ordered and declared that the appellants and respondents are entitled to partition and separate possession to the extent of their half share each in the property. (5) The respondents are also entitled to the relief of partition and separate possession to the extent of their half share. (6) The appellants are entitled to the relief of partition and separate possession in the suit fields through the Collector, Sindhudurg by the appointment of Cadestral Surveyor from D.I.L.R. or through T.I.L.R., a the case may be. (7) The house No.282 shall be thrown to the stock of 4 mss CAS650 appellants. (8) The appellants are entitled to the costs throughout. (9) The decree be modified accordingly. Date:-16.09.2008. Sd/- (J. N. Shanbag) District Judge-I, Sindhudurg at Oros.” 3. The finding that the plaintiffs are in possession of House No. 282 has not been disturbed though in the operative order the relief of perpetual injunction is not granted. 4. In this civil application, interim relief has been granted in terms of prayer clause (b) on 25/6/2009 and the same is operating till today. Mr. Pawar, learned counsel appearing for the applicants states that if the said interim relief is not continued, the entire civil application will become infructuous as the appellants will lose possession. Various submissions on merits of the controversy are also sought to be raised. Learned advocate for the respondents opposes the prayer for stay. 5. I have considered the rival submissions. In a suit for partition and separate possession. It has been a well established practice of this court that such a decree shall not be stayed by granting a blanket stay of partition decree. This is on account of the fact that in 5 mss CAS650 respect of decree for partition of agricultural lands, the decree is forwarded to the Collector or his designated subordinate u/s 54 of the Code of Civil Procedure, 1908 and thereafter such preliminary decree is implemented through the Collector. Measurements are taken, partition lists are prepared. There are objections leading to filing of appeals and revision applications under the Maharashtra Land Revenue Code, 1966. If a blanket stay is granted, all these proceedings will stand postponed till after the final decision of the second appeal and if the decree for partition is confirmed in the second appeal after several years, which is the normal time taken for disposal of the second appeal in this court, the partition proceedings before the Collector will thereafter commence and it will again take several years for completion of partition proceedings. 6. Insofar as the immovable properties which are not agricultural lands assessed to Land Revenue or movable properties also, the preliminary decree for partition is required to be implemented by appointing the court commissioner and even through the normal experience the suit proceedings take several years for preparing the partition lists or carrying out measurements within suggesting partition of house properties etc., objections to such partitions suggested by the court commissioner and decision of such 6 mss CAS650 objections in final decree proceedings. 7. In view of this, it is the practice of this court, being followed for several years, in a suit for partition and separate possession where a decree is passed, a blanket stay is normally not granted in partition proceedings, mass proceedings in all respect, actual delivery of possession is not to be effected. 8. The apprehension of Mr. Pawar that second appeal will become infructuous is completely without substance for the simple reason that handing over of the possession is being stayed. Hence I pass the following order: (a) The impugned judgment and decree dated 6/9/2008 passed by the learned District Judge-I, Sindhudurg at Oros in Regular Civil Appeal No. 54 of 2006 is not stayed in its entirety. It is directed that the partition proceedings in respect of the agricultural lands as also the house property No. 282 shall go on in all respect. (b) The Collector or his designated subordinate can measure the lands, prepare partition lists, allow the parties to file objections and decide the objections. (c) Any aggrieved party can file appeals u/s 247 of MLR Code, 1966 before the appropriate appellate authorities and also file 7 mss CAS650 revision applications in accordance with law and all such authorities can proceed to decide such appeals and revision applications in accordance with law. However, physical possession in terms of the partition suggested by the Collector shall not be handed over. So also in respect of the house property bearing house No. 282, the direction contained in clause 7 of the impugned judgment and decree, that it shall be thrown to the stock of the original plaintiffs, who were the appellants in the District Court and respondents herein is not stayed. The trial court and the appellate court, both recorded finding that the said house No. 282 was in possession of the original plaintiffs though the appellate court has also held that the same is collapsed. That, however, does not mean that the finding regarding possession of that house as recorded by the trial court has been disturbed. (d) Rule made absolute in the aforestated terms with no order as to costs. (G. S. GODBOLE, J.)