1 wp1962-89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa WRIT PETITION NO. 1962 OF 1989 Narayan Bapusa Fulpagar since deceased through his LR's 1. Digambar Narayan Fulpagar & Ors. .. Petitioners V/s. Ambadas Kondas Fulpagar Since deceased through his LR's 1a) Chandrakant Ambadas Fulpagar & Ors. .. Respondents .... Mr. S.N. Chandrachood for the petitioners. Mr. R. M. Hardas i/b. Mr. I. M. Khairdi for respondent Nos. 1(a) to 1(d). .... CORAM : A. S. OKA, J. DATE : DECEMBER 15, 2010. JUDGMENT : Heard the learned counsel appearing for the parties. This writ petition under Article 227 of the Constitution of India arises out of the orders passed in partition proceedings based on a decree for partition passed in Special Civil Suit No. 28 of 1956. As per the decree passed, the present petitioner was held entitled to ½ undivided share in the suit properties. The original first 2 wp1962-89 respondent as well as second respondent were held entitled to 1/4th share each. 2. It appears that on the basis of application made by the petitioner before the Civil Court, a precept issued under Section 54 of the Code of Civil Procedure Code, 1908. On the basis of the said order, the Tahsildar, Yeola, District Nashik was appointed by the Collector to effect partition. 3. It appears that the District Inspector of Land Records was appointed by the Tahsildar to suggest the partition. Accordingly, on 31st October, 1981 a partition was proposed by the District Inspector of Land Records. Show cause notices were issued by the Tahsildar to the parties. The Petitioner raised an objection to the proposal for the partition prepared by the District Inspector of Land Records. The Tahsildar passed an order on 28th December, 1981 directing that the partition should be effected as per the suggestions of the District Inspect of Land Records. 4. An appeal was preferred by the petitioner for challenging the said order before the Collector. It appears that as Tahsildar 3 wp1962-89 was a nominee of the Collector, the Appeal was transferred to the Additional Commissioner. The Additional Commissioner dismissed the Appeal. A Revision Application under Section 257 of the Maharashtra Land Revenue Code, 1966 was filed by the petitioner before the State Government. By the impugned order, the Revision Application was disposed of. The officer on special duty observed that there is noting on record to show anything amounting to failure of the Tahsildar to execute the decree passed by the Civil Court. However, as far as use of well was concerned, a direction was issued to the Tahsildar for “drawing up a partition statement in a self contained manner showing the well(s) in each survey number or its sub-division and the water rights of the parties”. Only to that extent the matter was remanded to the Tahsildar with certain directions. 5. The submission for the learned counsel appearing for the petitioner is that apart from the fact that partition was not at all equitable, different portions of the land have been allotted to the share of the petitioner and in fact contiguous portions of the lands ought to have been allotted to his share. He pointed out that the order of the Tahsildar was passed without giving an opportunity of 4 wp1962-89 being heard given to the petitioner. He submitted that in Appeal and in Revision, a specific contention was raised that the Tahsildar had not heard the petitioner, but the said contention was not at all considered. The learned counsel appearing for respondent No. 1(a) to 1(d) and respondent no. 2(a) to 2(h) and 2(j) supported the impugned orders. His contention is that partition was already effected which is the observation made by the revisional Authority in the impugned order. His submission is that objections taken by the petitioner were considered by the Tahsildar and an equitable partition has been proposed. 6. The learned counsel appearing for the contesting respondents submitted that an equitable partition has been suggested and in any case care has been taken by the officer on special duty to ensure that there is equitable distribution of Wells on the suit lands. Hence, no interference is called for. 7. I have given careful consideration to the submissions. In view of Rule 9 of the Maharashtra Land Revenue (partition of holdings) Rules, 1967, the partition has to be effected in accordance with Rules 5 to 7 of the said Rules. Rule 5 5 wp1962-89 contemplates that Collector or his agent shall proceed to effect partition in the manner laid down in the Rules. Thereafter, the Collector or his representative is under an obligation to hear the objections to the proposed partition raised by the parties in accordance with Rule 7 of the said Rules. After hearing the objections, the partition has to be either amended or confirmed which takes effect from the commencement of the agricultural year next following the date of such amendment or confirmation. 7. Perusal of the order dated 28th December, 1981 passed by the Tahsildar shows that no hearing was given to the petitioner or to the other parties. In fact, the Tahsildar has observed that statements of the parties have been recorded by the District Inspector of Land Records and all objections have been considered at that stage. In fact, the order records that the Tahsildar declined to consider the objections. The perusal of the memorandum of appeal, written arguments filed in appeal as well as the memorandum of Revision Application shows that the said contention regarding the failure of the Tahsildar to give hearing was specifically raised and the same has not at all been dealt with by either by the Appellate Authority or by the Revisionary 6 wp1962-89 Authority. The order of the Tahsildar shows that no opportunity of hearing was given by him to the petitioners on the objections raised by them to the proposed partition. Thus, Rule 7 of the said Rules has not been followed. 8. Thus, the only option left before this Court is to set aside the orders of the three Authorities and to remit the matter to the Tahshildar. 9. Hence, I pass the following order : :: O R D E R :: i. The impugned orders are quashed and set aside and the proceedings are remitted to the Tahsildar Yeola. ii. The Tahsildar Yeola shall consider the objections raised by the parties to the proposed partition dated 31st October, 1981 and shall pass 7 wp1962-89 orders in accordance with Rule 7 of the Maharashtra Land Revenue (Partition of Holdings) Rules, 1967. iii. Considering the fact that the decree has been passed decades back, the Tahsildar shall complete the exercise within a period of three months from the date on which a certified copy of this Judgment and order is produced before him. iv. Any further Appeal or Revision Application which may be filed by the parties shall be also decided as expeditiously as possible. v. Till the conclusion of the proceedings before the Tahsildar, the parties are restrained from creating any further third party interests and further encumbrances on the suit properties. vi. Rule is partly made absolute in the above terms with no order as to costs. JUDGE