1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION No. 159 OF 2004 1] Gramin Yuvak Adhar Gramin Bigar Sheti Sahakari Patsanstha Maryadit, Manglapur, thourgh its Chairman Savleram Govindrao Pawar, Age 68 years, r/o Mangalapur, Tq. Sangamner, Dist. Ahmednagar 2] Adarsha Sahakari Doodh Utpadak Sanstha Maryadit, Mangalapur, Sangamner, Dist. Ahmednagar, through its Chairman Dnyanodeo Rambhau Pawar, Age 40 years, R/o Manglapur, Tq. Sangamner, Dist. Ahmednagar ...PETITIONERS VERSUS 1] Kashinath Ramchandra Wale, age 46 years, Occu. Agril, r/o Mangalapura, Tq. Sangamner, Dist. Ahmednagar. 2] Balasaheb Ramchandra Wale, Age 40 years, Occu. Agril., R/o as above. 3] Gangadhar Ramchandra Wale, Age 48 years, Occu. Agril, r/o as above 4] Manjulabai W/o Ramesh Wale, deceased through her legal representatives Shri Ramnath Kisanrao Hase, Age 50 years, Occu. & r/o as above 5] Tulsabai W/o Janardan Dhage, `Age 47 years, Occu. Household, r/o as above. 2 6] Tarabai w/o Bharat Gopale, Age 47 years, Occu. Household, r/o as above. ..RESPONDENTS ... Mr. K.M. Nagarkar, Advocate for Petitioner Mr.V.J. Dixit, Sr. Counsel for Respondent No. 1 Mr.B.S. Kudale, Advocate for respondent Nos. 2 to 6 CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 13th October, 2010 JUDGMENT PRONOUNCED ON : 19th October, 2010 JUDGMENT: This Civil Revision Application is filed, challenging the Judgment and Order dated 16th April, 2004 in Special Dharkhast No. 50 of 2003 passed by the learned Civil Judge, Senior Division, Sangamner, Dist. Ahmednagar. 2. The respondent Nos. 4,5 & 6 filed Regular Civil Suit No. 10 of 2001, before the Civil Judge, Senior Division, Sangamner, Dist. Ahmednagar, for partition and separate possession and for perpetual injunction and for the property land bearing Survey No. 41/1A/1, admeasuring 21 R of Village Mangalapur, Tqhasil Sangamer, Dist. Ahmednagar. The notices were served upon all the defendants to the suit. On 27th June, 2001 the said Civil Suit No. 10 of 2001 was 3 decided against the respondent Nos. 1 and 3 exparte, whereas against the respondent No. 2 without Written Statement suit was proceeded. By Judgment and Order dated 26th June, 2001, the said suit came to be decreed. The Special Dharkhast bearing No. 26 of 2002, was filed by respondent Balasaheb, seeking partition and separation of his share as per terms of decree. The notices in respect of Special Dharkhast No. 26 of 2002 were served on all the concerned parties to the said proceedings, but inspite of this fact, the respondent No. 1 herein had neither appeared nor filed his say. The special Dharkhast No. 26 of 2002, came to be executed by the Collector, Ahmednagar, and the shares has been allotted to the parties and possession was also delivered to the respondent No. 2 of his share, and his name was recorded in the record of right. The respondent No. 2 sold the suit property of his share to the present petitioner Nos. 1 & 2 vide registered sale-deed dated 30th September, 2009 and the name of the petitioners came to be entered into 7/12 extracts, after deciding the objections of the respondent No.1 by the Tahasildar concerned for 4 mutation entry and same attended finality. 3. It is the case of the petitioner that the respondent No. 1 Kashinath filed Special Dharkhast No. 50 of 2003, thereby challenging the execution in special Dharkhast No. 26 of 2002 before the same Court i.e. Civil Judge, Senior Division, Sangamner. The Petitioner Nos. 1 & 2 i.e. Original J.D. Nos. 6 & 7 in special Dharkhast No. 50 of 2003 filed their say and resisted the contentions of the respondent No. 1 i.e. Original decree holder in special Dharkhast. By Judgment and order dated 16th June, 2004, the Civil Judge Senior Division, Sangamner, partly allowed the prayers in Special Dharkhast No. 50 of 2003. Hence this Civil Revision Application, challenging the said Judgment and Order in Special Dharkhast No.50 of 2003. 4. The petitioner herein has raised his objection in the special Dharkhast No. 50 of 2003 by way of filing written submissions. The petitioner submits that, after the 5 above said direction, the learned Civil Judge has without considering the legal and factual aspects and evidence on record, the Special Dharkhast NO. 50 of 2003 is came to be allowed in favour of the present respondent No. 1 and injunction granted against the present petitioners for indefinite period, which causes great injustice to the petitioners. Therefore, it is just and proper to set aside and quash, otherwise, the petitioners will suffer irreparable loss which cannot be compensated in terms of money. The petitioner further submits that the learned lower Court has totally ignored the fact that the transactions in between the respondent No. 2 and present petitioners has been performed by way of valid sale deed. Prior to execution of sale deed, the concerned Tahasildar, Sangamner Dist. Ahmednagar and Grampanchayat Mangalapur, Tq. Sangamner has given their no objection on the request of Deputy Registrar, Registry office, Sangamner for sale transaction in between respondent No. 2 and the present petitioners vide its letter dated 20th September, 2003, and 4th July, 2003 respectively. After execution of sale deed, the Grampanchayat Mangalapur has also given the no 6 objection certificate by the present petitioner vide its letter dated 14th October, 2003. The respondent No. 2 has also given his consent letter for execution of sale deed, and transactions in between present petitioners and respondent NO. 2 took place in respect of sale deed. All the above stated compliance clearly reflects that the present petitioners diligent and bonafide purchaser of the suit property. Hence due to uncertainty view taken by same Court, in two special Darkhast from the same decree in such case, the bonafide purchaser of the suit property should not be suffered due to the impugned order, same is illegal, ultra virus and therefore same is liable to be quashed and set aside. 5. The learned Counsel appearing for the petitioner argued that the Civil Court has forwarded the decree in special Dharkhast No. 26 of 2002, and same is executed by the Collector, Ahmednagar by effecting partition, at that time no body has taken objection. However, subsequently the respondent No. 1 has filed special Dharkhast No. 50 of 2003, thereby claiming injunction to the execution proceeding in special Dharkhast No. 26 of 2002. According to the 7 counsel for the petitioner, the respondent No. 1 has approached the same Court, by way of special Dharkhast No. 50 of 2003, for challenging the execution proceeding in special Dharkhast No. 26 of 2002 passed by the same Court, instead of approaching before the revenue authorities for challenging the execution proceeding No. 26 of 2002. According to the Counsel for the petitioner, the second Dharkhast No. 50 of 2003 should not have been entertained by the same Court, since the same was not maintainable in law. In support of his contention Counsel for the petitioner placed reliance on the following Judgments : 1] Paygonda Survgonda Patil & others V/s. Jingonda Surgonda Patil & others, reported in AIR 1968 Bombay, 198 (Vol.55, C. 26). 2] Kishan Bhikaji Dalvi (Since deceased through L.Rs. Mohan Kisan Dalvi and others V/s. Krishnabai Maruti Dalvi, reported in 2000(4) Mh.L.J.,485 3] Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others, reported in 2007(0) B.C.I. 9 (Nagpur Bench) 4] Madhu Naryan Pawar deceased through his LRs. Balwant Mahadu Pawar & others V/s. Additional 8 Commissioner, Nashik Division, Nashik, reported in 2008(1), Mh.L.J, 929. The learned Counsel for the petitioner submitted that the appropriate remedy to challenge the order of Collector was before the revenue authority and second Dharkhast filed by the respondent No. 1 was not maintainable. 6. On the other hand, learned Senior Counsel appearing for the respondent No. 1, has invited my attention to the order passed by the Collector and submitted that the Collector did not follow command of the decree and did not properly made demarcation / the shares of the each party. The Collector held that the three plaintiffs are entitle 1/24th share. However, Collector, has not properly demarcated the share of each defendant to the suit. The Collector has also not in specific, demarcated front portion of the suit property. The Collector has not followed the provisions of 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. In fact, he was suppose to follow the provisions of Section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. 9 The Collector failed to determine the shares properly. Since the land was fragment and front portion was required to be partitioned. However, Collector fail to do so. The Collector, failed to observe the command of decree and not followed the same properly. The learned Sr. Counsel, invited my attention to clause ‘d’ of the decree and submitted that according to the said clause d, the mandate of Section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 should have been followed by the Collector. According to the learned Sr. Counsel, the mandate of decree is silent about other sharers. Therefore, learned Sr. Counsel would submit that since the decree drawn by the Collector, was not in accordance with the directions issued in the Special Dharkhast No. 26 of 2002, the respondent No. 1 filed the subsequent proceeding special Dharkhast No. 50 of 2003. It is further submitted that the respondent No. 1 was not heard when special Dharkhast No. 26 of 2002 was disposed of. The learned Senior Counsel invited my attention to the following reported judgments :- 1] Mahadu Alias Mahadeo Baji Bhosale V/s. Appaji Gunbarao @ Ganpatrao Bhosale since deceased by his heirs Gangabai Appaji Bhosale & 10 others, reported in 2003(2), Mh.L.J. 216. 2] Lachhiram Jasram V/s. Nanba Dhanaji and others, reported in AIR (33) 1946 Nagpur, 353 The learned Senior Counsel submitted that, the Second Dharkhast No. 50 of 2003 was maintainable and Civil Revision Application filed by the petitioners is devoid of any merits and same deserves to be dismissed. 7. I have given due consideration to the submissions on behalf of the parties, it is not in dispute that the Special Dharkhast No. 26 of 2003 was filed by Balasaheb for seeking partition and separate possession of his share as per terms of decree. The notices in respect of special Dharkhast No. 26 of 2002 had been issued to all concerned parties to the said proceedings. But inspite of this fact, the respondent No. 1 herein had neither appeared nor filed his say. The special Dharkhast No. 26 of 2002 came to be executed by the Collector, Ahmednagar and shares have been allotted and possession has been delivered to the respondent No. 2 and name of the respondent No. 2 came to be recorded in the record of right. 11 8. The main question which falls for consideration in this application is that, when the earlier Dharkhast NO. 26 of 2002 was disposed of by the Collector, Ahmednagar and final decree was drawn, whether it was open for the respondent No. 1 to file another special Dharkhast NO. 50 of 2003 before the same Court for execution of Judgment and Order dated 26th June, 2001 in Civil Suit No. 10 of 2001, when earlier Dharkhast No. 26 of 2002 was also filed for same purpose. 9. The point raised in this Civil Revision Application is no more res-integra and is answered by the pronouncements of this Court in case of “ Paygonda Survgonda Patil & others V/s. Jingonda Surgonda Patil & others” cited supra this Court held that : “ A decision or order made by the Collector in effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner under Section 203 of the Bombay Land Revenue Code and is also revisable under Section 211 there of; 12 (emphasis supplied) Para 5 of the said Judgment reads thus :- “ any decision or order made by the Collector in effecting a partition of revenue paying lands in execution of a decree passed by a Civil Court is subject to an appeal to the Commissioner| under S. 203 and is also revisable under Section 211 of the Bombay Land Revenue Code.” On plain reading of para No. 5 of the said judgment position emerges that the respondent No. 1 herein should have challenge the order of the Collector before the Appellate Authority under Section 247 of the Maharashtra Land Revenue Code. 10. Yet in another Judgment in case of “ Kishan Bhikaji Dalvi (Since deceased thrugh L.Rs. Mohan Kisan Dalvi and others V/s. Krishnabai Maruti Dalvi“ cited supra,the Court has held thus :- “ When there is declaration of share in the partition suit with respect to lands, assessed to land revenue, the job of the Civil Court comes to an end by making such a declaration and all further proceedings regarding effecting 13 partition, may be by first preparing a final decree and then by executing the same, is to be carried out by the Collector, as per the provisions of section 54, Civil Procedure Code. The further steps in such a suit are required to be taken by the Collector and for that purpose, the Civil Court has to transmit the papers to the Collector. Thereafter, the Collector has to take appropriate steps for partition, as per the directions issued in the decree. It is not expected that any final decree be prepared by the Civil Court.”(emphasis added) This Court in para No. 10 of the Judgment further held thus :- “ if the present petitioners had any grievance about the order passed by the Collector, then they ought to have filed appeal before the authority under the Land Revenue Code, to which the appeal is maintainable against the order of the Collector. The application in the Civil Court itself was not maintainable. (emphasis added) 11. In para No. 11 of the said Judgment, this Court further held thus :- “ Whether the Collector had acted 14 rightly when the consolidation scheme was made applicable to the village, is a question to be decided in any such appeal that might have been filed by the petitioners. The Civil Court cannot go into question also.(emphasis supplied) In para No. 12 of the said Judgment, this Court has further held thus :- “ When there is declaration of share in the partition suit with respect to lands, assessable to land revenue, the job of Civil Court comes to an end by making such a declaration, and all further proceedings regarding effecting partition, may be by first preparing a final decree and then by executing the same, is to be carried by the Collector, as per the provisions of section 54, Civil Procedure Code.(emphasis supplied) 12. Yet in another case in case of “ Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others“ this Court has reiterated the view taken in the case of “ Kishan Bhikaji Dalvi (Since deceased through L.Rs. Mohan Kisan Dalvi and others V/s. Krishnabai Maruti Dalvi “, cited supra. This Court in case of “ Madhu Naryan Pawar deceased through 15 his Lrs. Balwant Mahadu Pawar & others“ cited supra has also taken a view that partition of agricultural lands in execution of decree for partition, order passed under Section 54 partitioning the properties, appeal against such order maintainable before the Additional Commissioner (Revenue). 13. In the facts of this case, it is true that the respondent No. 1 may have grievance that the Collector has not followed the provisions of Section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. However, the proper remedy is to file the appeal. It is rightly contended by the counsel for the petitioner that the revenue authority is more competent authority to decide any grievance about non observance and not following the section 8(AA) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. It is true that the Civil Court can see that, Whether the Collector has followed the decretal mandate or not and to that extent the Civil Court is certainly empowered to do so. However, in the present 16 case, the respondent No. 1 did not participate in the proceeding before the Collector, and also did not raised any objection whatsoever and final decree was drawn. Thereafter, the respondent No. 1 filed another Dharkhast No. 50 of 2003. In the facts of this case, the respondent No. 1 should have filed appeal before the competent authority under Section 247 of the Maharashtra Land Revenue Code, if he was aggrieved by the action of the Collector in not properly distributing the shares. Therefore, in my opinion, in the lights of the Judgment in the case of “ Paygonda Survgonda Patil & others V/s. Jingonda Surgonda Patil & others “ and in case of “ Baban S/o Shamrao Menghare & another V/s. Madhukar S/o Shamrao Menghare & others “ cited supra, it is appropriate for the respondent No. 1 to file appeal and second Dharkhast No. 50 of 2003 was not maintainable, in the given set of facts. Therefore, impugned Judgment and order dated 16th April, 2004 passed by the learned Civil Judge, Senior Division, Sangamner, Dist. Ahmednagar in Special Dharkhast No. 50 of 2003 is quashed and set aside. The Civil Revision Application is allowed in terms of prayer clause ‘C’ and disposed of. 17 15. It is needless to mention that if the respondent No. 1 wish to file appeal aggrieved by the Collector’s decision, the appellate authority will take into consideration the time consumed in prosecuting the Dharkhast NO. 50 of 2003 and also this Civil Revision Application at the time of considering the point of limitation for filing the appeal. The Civil Revision Application stands disposed of. The original record, if any be sent back to the concerned Court. [S.S. SHINDE, J] SDM*159.02 CRA