1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.889 OF 2009. Sou.Watchlabai W/o Hanmantrao Dhamale and another ... Appellants Versus Smt.Trivenabai W/o Narayan Kure and others. ... Respondents. ... Mr.R.B.Deshmukh, advocate for the appellants. Mr.N.D.Kendre, advocate for the Respondent Nos.1 to 3. ... CORAM : V.R.KINGAONKAR,J. Date : 09.12.2009. PER COURT 1. This appeal is being disposed of at the stage of admission inasmuch as the substantial question of law raised in the appeal is only in regard to the jurisdiction of the Civil Court to 2 give direction to allot particular share to the original defendant No.1 when the partition decree is granted. 2. There is no dispute about the fact that deceased Narayan was holder of the agricultural lands bearing Gat N.908 and Gat No.915 and a house property. He died in 1987, leaving behind him Trivenibai as his widow, who was original defendant No.1, and the plaintiffs as the married daughters. There is also no dispute about the fact that subsequently defendant No.1 Trivenibai alienated the land Gat No.908 in favour of the defendant No.2 Pandharinath by virtue of a registered sale deed dated 10.11.2000. 3. The plaintiffs alleged that the defendant No.1 was defrauded by the defendant Nos.2 and 3 at the relevant time and, therefore, the sale deed in respect of Gat No.908 was out- come of fraud and mischief. She was not the exclusive owner of the said land. Therefore, she was incompetent to alienate the land Gat No.908 in favour of the defendant Nos.2 and 3. They 3 further asserted that they had filed suit (RCS No.414/2000) for partition and separate possession which was withdrawn, when they came to know about the alienation made by the original defendant No.1 Trivenibai, with leave to file afresh suit by joining the purchaser. 4. The defendants alleged that the land Gat No.908 was alienated due to financial difficulties faced by the defendant No.1 and that the defendant Nos.2 and 3 are bonafide purchasers thereof. 5. The parties went to trial over certain issues which were struck below Exh.28. The trial Court decreed the suit for partition and separate possession holding that the plaintiffs were entitled to claim 1/3rd share each and that the defendant No.1 Trivenibai was having 1/3rd share. However, while passing the decree, the trial Court directed as below : "The land Block No.908 is to be kept to the share of defendant No.1. It is 4 already disposed off therefore, it shall not be subject for partition." 6. Challenge in this appeal is to the legality and propriety of above directions which have been confirmed by the first appellate Court. 7. Heard learned counsel. 8. So far as partition of agricultural lands is concerned, it falls within the exclusive domain of the Collector U/s 54 of the C.P.C. The decree is required to be executed as provided under the said Provisions of the C.P.C. The Civil Court can not itself cause division of the agricultural lands unless there is mutual agreement between the parties to do so. The trial Court had no business to say that land Gat No.908 shall be kept to the share of the defendant No.1 Trivenibai and shall not be subjected to partition. Once it is found that defendant No.1 Trivenibai alienated the said land without legal authority and was incompetent to transfer the shares of the plaintiffs, it goes 5 without saying that the plaintiffs were entitled to claim their shares in the said land. The impugned direction given by the trial Court and confirmed by the first appellte Court is contrary to the spirit of Section 54 of the C.P.C. and as such is unsustainable. It is well settled that the only remedy available to the purchaser of a part of the property from a co-sharer is to file suit for general partition. The Courts below failed to appreciate the settled legal position in this behalf. 9. Considering the foregoing reasons, the appeal is partly allowed. The impugned direction indicated in para 3 of the final order of the trial Court and confirmed by the first appellate Court is set aside. The direction is substituted in the following manner : "(3)The land Gat No.908 be divided by way of partition and if the Collector, while effecting division finds it convenient, just and proper to allot the same to the share of 6 defendant No.1 then representation of the defendant Nos.2 and 3 in this behalf if filed within a period of four (4) weeks may be considered. It is made clear that there will be no compulsion for making such allotment and the allotment of shares will be purely within the discretion of the Collector." 10. The appeal is accordingly disposed of. No costs. (V.R.KINGAONKAR,J.) asp/office/sa88909