1 WP 94.......1992 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 94 OF 1992 Balwant S/o Kashinath Raje Nimbalkar (Died) through his L.Rs. : i) Wanmala W/o Balwantrao Raje Nimbalkar, Age : 45 Yrs., Occ. Household, R/o : Samta Colony, House No. 27/436, Osmanabad, Dist. Osmanabad. ii) Kuldip S/o Balwantrao Raje Nimbalkar, Age : 23 Yrs., Occ. Student, R/o : Samta Colony, House No. 27/436, Osmanabad, Dist. Osmanabad. iii) Ratnadeep S/o Balwantrao Raje Nimbalkar, Age : 21 Yrs., Occ. Nil, R/o : Samta Colony, House No. 27/436, Osmanabad, Dist. Osmanabad. iv) Kum. Amrapali D/o Balwantrao Raje Nimbalkar, Age : 19 Yrs., Occ. Student, R/o : Samta Colony, House No. 27/436, Osmanabad, Dist. Osmanabad. .... PETITIONERS V E R S U S 1. The Tahsildar Osmanabad. 2 WP 94.......1992 - [ J ] 2. Sushila W/o Sahebrao Raje Age : Major, Occ. Household, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 3. Ujawal S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 4. Ajeet S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 5. Vyankatesh S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 6. Vidya S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 7. Vithalrao S/o Kashinath Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. (Deleted). 8. Udaysingh S/o Vithalrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. (Deleted). 9. Amarsing S/o Vithalrao Raje 3 WP 94.......1992 - [ J ] Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. (Deleted). 10. Pravin S/o Vithalrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. (Deleted). 11. Rukhminibai W/o Vithalrao Raje Age : Major, Occ. Household, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. (Deleted). 12. Dattatraya S/o Kashinath Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 13. Subhadrabai W/o Dattaraya Raje since deceased, through L.Rs. : 13-A. Jagdevi Tatyasaheb Deshmukh Age : 41 Yrs., Occ. : Agril., R/o : Kati, Tq. Tuljapur. 13-B. Nirmala Jyalindar Deshmukh Age : 39 Yrs.,Occ. Agril., R/o : Zazurne, Tq. : Karmala. 13-C. Pushpamala Tulshiram Kadam Age : 37 Yrs.,Occ. Service, R/o : Chincholi, Tq. Pandharpur. 13-D. Madhubala Tanajirao Patil Age : 33 Yrs.,Occ. Agril., 4 WP 94.......1992 - [ J ] R/o : Chincholi, Tq. Madha, Dist. Jalna. 13-E. Ranjana Shamrao Bhosale Age : 31 Yrs.,Occ. Agril., R/o : Chincholi, Tq. Pandharpur. 13-F. Surekha Chandrasekhar Bhosale Age : 28 Yrs.,Occ. Service, R/o : Pune. 13-G. Urmila Jaisingrao Bhosale Age : 26 Yrs.,Occ. Advocate, R/o : Manal , Tq. Karmala. 14. Sursing S/o Dattatraya Raje Age : Major, Occ. Service, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 15. Yalsing S/o Dattatraya Raje Age : Major, Occ. Business, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 16. Veersing S/o Dattatraya Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 17. The Additional Commissioner, Aurangabad. ..... RESPONDENTS Mr. N.L.Jadhav, Advocate for the petitioners. Mr. R.N.Dhorde, Advocate for Respondents. 5 WP 94.......1992 - [ J ] WITH WRIT PETITION NO. 3554 OF 2007 1. Sushila W/o Sahebrao Raje Age : Major, Occ. Household, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 2. Ujawal S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 3. Ajeet S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 4. Vyankatesh S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 5. Vidya S/o Sahebrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. .... PETITIONERS V E R S U S 1. The Tahsildar Osmanabad, Dist. Osmanabad. 2. Vithalrao S/o Kashinath Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 6 WP 94.......1992 - [ J ] ` (Dead). 3. Udaysingh S/o Vithalrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 4. Amarsing S/o Vithalrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 5. Pravin S/o Vithalrao Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 6. Rukhminibai W/o Vithalrao Raje Age : Major, Occ. Household, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 7. Dattatraya S/o Kashinath Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. (Dead). 8. Subhadrabai W/o Dattaraya Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. (Dead). 9. Sursing S/o Dattatraya Raje Age : Major, Occ. Service, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 7 WP 94.......1992 - [ J ] 10. Jaysing S/o Dattatraya Raje Age : Major, Occ. Service, R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 11. Veersing S/o Dattatraya Raje Age : Major, Occ. Agril., R/o : Mahajan Galli, Osmanabad, Dist. : Osmanabad. 12. The Additional Commissioner, Aurangabad. 13. Balwant S/o Kashinath Raje Nimbalkar (Died) through his L.Rs. : 13-A. Kuldip S/o Balwantrao Raje Nimbalkar, Age : 23 Yrs., Occ. Student, R/o : Samta Colony, House No. 27/436, Osmanabad, Dist. Osmanabad. 13-B. Jaydeep Balwant Raje Age : 19 Yrs., Occ. : Education, R/o : Samta Colony, House No. 27/436, Osmanabad, Dist. Osmanabad. 13-C. Vanmalabai W/o Balwant Raje Nimbalkar, Age : 50 Yrs., Occ. Household, R/o : Samta Colony, House No. 27/436, Osmanabad, Dist. Osmanabad. ..... RESPONDENTS Mr. R.N.Dhorde, Advocate for the petitioners. Mr. N.L.Jadhav , Advocate for Respondents. 8 WP 94.......1992 - [ J ] CORAM : S.V. GANGAPURWALA, J. JUDGMENT RESERVED ON : 09/09/2011 JUDGMENT PRONOUNCED ON : 21/10/2011 JUDGMENT : 1. Both the Writ Petitions involve common question of facts, as such are decided together. 2. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 3. The suit properties bearing S.Nos. 190, 162/1, 183/1, 180 and 197/1 are the ancestral properties of the petitioners and the respondents. 4. One Vithal Raje filed R.C.S. No. 66 of 1983 for partition and separate possession. The same was decreed. Vithal Raje was granted 1/4th share, Sahebrao Raje was granted 1/4th share, Balwant Raje and Dattatraya Raje were granted 1/4th share each. Against the said Judgment and decree, Balwant Raje filed R.C.A. No. 439 of 1985. The same was dismissed on or about 14/09/1985. 5. Thereafter, Vithal Raje filed R.D. No. 6 of 1986 for 9 WP 94.......1992 - [ J ] possession of his separate 1/4th share. The decree was sent to the revenue authorities for partition. The Tahsildar carved out 1/4th share of Vithal Raje and handed over possession to Vithal Raje of his 1/4th share on 08/02/1990. That Balwant Raje challenged the said allotment of share to Vithal Raje before the authorities and subsequently in the High Court by filing Writ Petition No. 3120 of 1990. This Court vide its Judgment dated 26/03/1991 dismissed the said Writ Petition of Balwant Raje and up-held the allotment of land to Vithal Raje in partition. The said order has become final as it is not assailed. 6. Thereafter, Sahebrao Raje, his legal representatives paid court fees to the extent of their 1/4th share. The properties were measured and the shares were determined of all the original defendants. Vide order dated 13/05/1991, the Tahsildar passed order granting share to the legal representatives of Sahebrao and they were put in possession of their 1/4th share on 03/01/1992. Balwant Raje challenged the same by filing Revision before the Additional Commissioner U/s 257 of the Maharashtra Land Revenue Code [ For short, ‘ M.L.R. Code ’ ] contending that he is in possession of S.No. 190 and he should be allotted the same. The said Revision was dismissed. Balwant Raje thereafter filed Writ Petition No. 94 of 1992 against the said order. This Court passed order of ‘ Rule ’ in the said Writ Petition. 7. During the pendency of the said Writ Petition, Balwant 10 WP 94.......1992 - [ J ] Raje filed fresh execution proceedings No. 42 of 2002. Again the proceedings were taken before the revenue authority. The Collector directed the Taluka Inspector of Land Records [ For short, ‘ T.I.L.R. ’ ] to proceed further. The objections were raised to the said said execution about the maintainability of the same. The Collector directed the T.I.L.R. to submit the report to the Additional Collector, but the Collector granted permission to re-partition the ancestral properties. The Collector issued letter to the Tahsildar to effect partition and submit the report vide order dated 02/06/2007. Vide said order, the Collector directed the T.I.L.R. to give 1/4th share from all the survey numbers to all the parties. The said order is assailed in Writ Petition No. 3554 of 2007. 8. One thing that is manifest is that the trial Court had granted 1/4th share each to four ( 4 ) branches i.e. Vithalrao, Datatatraya, Balwanatrao and Sahebrao. The plaintiffs belong to the branch of Vithalrao. After the decree was passed by the Civil Court and confirmed by the appellate Court in an execution proceedings filed by Vithalrao, the matter was referred to the revenue authorities, who carved out 1/4th share of the branch of Vithalrao and handed over possession of 1/4th share of Vithalrao. The said order granting separate 1/4th share and the possession of the said properties to Vithalrao is confirmed by this Court in Writ Petition No. 3120 of 1990. Vithalrao was awarded S.No. 162/1 admeasuring 2 Acres 6 gunthas, S.No. 190 11 WP 94.......1992 - [ J ] admeasuring 4 Acres, S.No. 180 admeasuring 7 Acres 4 gunthas and S.No. 183/1 admeasuring 17 Acres 15 gunthas. As the said order is confirmed by the High Court, the land which is already given to Vithalrao in partition and of which possession is also delivered, can not subsequently be taken into consideration while granting possession to the respective parties of their shares as determined by the Civil Court. 9. Subsequently, after the petitioners in Writ Petition No. 3554 of 2007 deposited their 1/4th share, the Tahsildar allotted following lands to them. S.No. 162/1 to the extent of 6 Acres 19 gunthas and S.No. 190 to the extent of 24 Acres 6 gunthas. The order dated 13/05/2001 was challenged before the Commissioner, who dismissed the same and thereafter the same is assailed in Writ Petition No. 94 of 1992. 10. In the year 2002, in the executing proceedings by Balwant Raje, the matter was sent and again the Collector ordered repartition and the T.I.L.R. after carrying out measurement have shown different shares of all the four ( 4 ) parties. The same is the subject matter in Writ Petition No. 3554 of 2007. 11. I have heard Mr. R.N.Dhorde, the learned counsel for the petitioners in Writ Petition No. 3554 of 2007 and Mr. N.L.Jadhav, the learned counsel for the petitioners in Writ Petition No. 94 of 1992 at 12 WP 94.......1992 - [ J ] length. 12. Mr. N.L.Jadhav, the leaned counsel for the petitioners in Writ Petition No. 94 of 1992 and for the contesting respondents in Writ Petition No. 3553 of 2007 vehemently contends that : a) When initially the land was allotted to the branch of Vithal of his 1/4th share and subsequently to the branch of Sahebrao, the Collector did not follow the procedure as required under the provisions of the M.L.R. Code and the same was totally illegal. The revenue authorities while handing over separate possession of the 1/4th share of Vithal and Sahebrao, flauted the total procedure and did not abide by the mandate of the decree passed by the Court, so also, the provisions of Section 54 of the Code of Civil Procedure [ For short, ‘ C.P. Code ’ ]. b) The order of the Collector allotting a particular land to the branch of Sahebrao and Vithal without carving out shares of other sharers was totally without jurisdiction. c) As the earlier orders were illegal, the Collector thereafter followed the procedure and directed the T.I.L.R. to carve out four ( 4 ) shares from each land, which is as per the law and the said order which is as per law, can not be faulted. 13 WP 94.......1992 - [ J ] d) No illegality is committed by the Collector by passing order dated 03/06/2007 directing repartition and further directing that from all Survey numbers, 1/4th share of each party should be carved out and that is the real procedure of partition. e) The Collector can not refuse to carry out the decree or the partition made by the Civil Court for effecting actual partition of agricultural land and the partition has to be effected by the Collector or his subordinate officer in accordance with the provisions laid down U/s 54 and Order XX Rule 18 ( 1 ) of the C.P. Code. The partition includes delivery of share to the respective share holder. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Arun Ashruba Mhaske V/s Atmaram Dattu Mhaske & Oths. reported in 2007 ( 6 ) Bombay Cases Reporter – 793. f) As the earlier order carving out 1/4th share of Sahebrao from only two ( 2 ) lands was illegal and was a collusive act, they violate the solemn proceedings and the same can be challenged subsequently. The learned counsel relied on the Judgment of the Apex Court in the case of Bhaurao Dagdu Paralkar V/s State of Maharashtra & oths. Reported in 2006 ( 1 ) Bom. C.R. - 770. g) The revenue authorities have erroneously observed that Balwant Raje had consented for the allotment of land in favour of the 14 WP 94.......1992 - [ J ] branch of Sahebrao. The said observation is perverse. The observations of the Tahsildar in that regard can not be relied. No such consent was given and such an observation should not have been made. For the said purpose, the learned counsel relies on the observations of the Apex Court in para no. 26 in the case of Pritam Singh V/s State of Punjab reported in 1956 ( 0 ) AIR ( SC ) - 415. h) According to the learned counsel, if the statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Chandra Kishore Jha V/s Mahavir Prasad & Oths. Reported in AIR ( SC ) ( 1999 ) 3558. i) When a Suit for partition and separate possession is filed, then the division of shares of all the parties has to be made and not of one party. If one party gets his share separated and the other are joint, then it is only the separation of share of one brother and not the partition. In view of that, as earlier only the share of original plaintiff was separated, it can not be said that decree was executed by metes and bounds. For the said purpose, the learned counsel relies on the Judgment of the Apex Court in the case of Shub Karan Bubna @ Shub Karan Prasad Bubna V/s Sita Saran Bubna & Oths. Reported in 15 WP 94.......1992 - [ J ] 2009 ( 9 ) SCC – 680. j) It would be inequitable to award the total land G.No. 190 to the branch of Sahebrao. The said land is more valuable . The other persons can not be deprived of the said land and in view of that the Collector was justified in ordering repartition. As such, the order of repartition was correctly passed. 13. Mr. Dhorde, the learned counsel for the petitioners in Writ Petition No. 3554 of 2007 and contesting respondents in Writ Petition No. 94 of 1992 strenuously contends : ( i ) When separate share of Vithalrao is carved out and he has been handed over possession of his 1/4th share, allotted to him by the revenue authorities and the same is confirmed up to this Court, the said land can not again be partitioned and the same has become final. The repartition as is sought to be done, also includes the said land. This itself shows that the order of repartition is illegal. (ii) The separate 1/4th share of Sahebrao was also carved out and possession was delivered. Even Balwant Raje admitted the same. The observations of Tahsildar in that regard will have to be considered. Balwant Raje would be estopped to contend otherwise. In the order dated 08/05/1991, the Tahsildar has specifically observed that Balwant 16 WP 94.......1992 - [ J ] Raje and Udaysing have no objection for allotting the shares to Sahebrao. The said order was passed on 13/05/1991. No illegality is committed while passing the said order. iii) Balwant Raje was in possession of total 120 Acres of land and was enjoying the possession. As such, had not moved the authorities for partition. It is only when the 1/4th share of Vithal Raje was allotted, the possession was required to be taken from Balwant Raje and handed over to Vithal Raje, so also to the branch of Sahebrao Raje, the possession was required to be taken from Balwant Raje. Balwant Raje was in possession of the remaining land. The land which was given to the branch of Sahebrao Raje was not fertile and was barren land and as now the land has come near the municipal limits, Balwant Raje is agitating the same. Except the branch of Balwant Raje, no other party is agitating about the allotment of land to the branch of Sahebrao and Vithalrao. iv) Once the partition was already made, the land allotted to the branch of Vithalrao and Sahebrao, the Collector did not get the jurisdiction to again direct repartition in respect of the said lands, which was already allotted and possession was delivered to the branch of Vithalrao and Sahebrao. The same would be illegal. 14. The only debatable issue in the present matter is about the 17 WP 94.......1992 - [ J ] land allotted to the branch of Sahebrao by effecting actual delivery of possession of 1/4th share. 15. Initially, 1/4th share of the branch of Vithalrao was carved out. The lands were allotted to Vithalrao in partition pursuant to the decree by Revenue authorities and the possession was also delivered to the branch of Vithalrao, the same was challenged in Revision and also by filing Writ Petition before this Court. This Court vide its order dated 26/03/1991, dismissed the Writ Petition No. 3120 of 1990, thereby confirmed the allotment of about 30 Acres of land to the branch of Vithalrao, of which the possession was also given. As such, the said land can not now be available for partition and allotment to other sharers. The repartition which is done as per the report of the T.I.L.R., also includes the lands which were allotted to the branch of Vithalrao, which certainly is not permissible after this Court had confirmed the same. As such, on this count itself, the order of repartition passed by the Collector directing four ( 4 ) shares to be carved out from each suit land, can not be sustained. The same would have been permissible at the first instance itself. But, once the land was partitioned in favour of Vithalrao and the same was confirmed up to this Court, the said land was not available nor the Collector can sit over the order of this Court and order repartition, so also, the T.I.L.R. could not have again repartitioned the said land. 18 WP 94.......1992 - [ J ] 16. The next question that would arise would be about the legality of the order alloting the share of Sahebrao from S.No. 190 and S.Nos. 162/1. A part of land from S.No. 190 was already allotted to Vithalrao and the remaining one is allotted to Sahebrao. The Tahsildar has observed in his order that Balwantrao did not object to the said partition proposed. Even the Roznama is written that Balwantrao has no objection for the said partition and the said Roznama is also signed by Balwantrao. There is nothing on record to disbelieve the proceedings which are written by the Tahsildar in regular course and signed by Balwantrao. The same would operate as an estopple against Balwantrao to challenge it again. 17. No doubt, fraud vitiates everything as has been observed by the Apex Court. It also can not be disputed that when a thing is to be done in a particular manner, it should be done in that manner only and when the partition is made, all the four ( 4 ) shares should have been carved out. But, in the present matter, the share of Vithalrao was already carved out. The possession was given to him of his separate 1/4th share as determined by the Tahsildar and the same is confirmed by this Court. We can not go behind the said Judgment of this Court passed in the year 1991 and thereafter the proceedings for alloting the share to the branch of Sahebrao was taken up. The proceedings also shows that Balwantrao had consented for the same. The said fact was not immediately disputed before the said authority and the dispute 19 WP 94.......1992 - [ J ] about the said statement is made subsequently after a long time. There is nothing on record to show that at the time when the partition was made and the share was allotted to the branch of Sahebrao in 1992, the land allotted to the share of Sahebrao was more valuable or fertile. The whole land was in possession of Balwant Raje i.e. more than 120 Acres and the lands were required to be taken out from his possession and delivered to the branch of Vithalrao and Sahebrao. In the Appeal before the Commissioner, it was never stated that the land allotted to the branch of Sahebrao is more valuable. The position as on the date the said land was allotted, will have to be taken into consideration and not the value of the respective lands today. 18. The parties are enjoying the respective possession since the said date. It would not be equitable now to again direct the parties to repartition. It is not the case that more land is allotted to the branch of Sahebrao nor there is anything on record to show that in the year 1992 when that land was allotted, the value of the said land was more or the same was more fertile land. 19. I do not see any element of fraud being played at the time when the share was allotted. 20. In view of the above, the order passed by the Collector to repartition the property will have to be set aside and the land allotted 20 WP 94.......1992 - [ J ] to the share of Sahebrao will have to be upheld. 21. In light of the above, Writ Petition No. 94 of 1992 is dismissed. Rule is discharged. 22. Writ Petition No. 3554 of 2007 is allowed. Rule is made absolute in terms of prayer clause ‘ B ’. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 94.......1992 - [ J ]