{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6945 OF 2008 1. Madhav Kondaji Punde 2. Vijay Madhav Punde Both R/o Dhokri Tq-Akole, Dist-Ahmednagar PETITIONERS VERSUS 1. Mahipat Kondaji Punde 2. Sanjay Mahipat Punde 3. Sharda Sanjay Punde 4. Nanasaheb Bhavka Punde 5. Ramdas Bhavka Punde 6. Ramesh Bhavka Punde 7. Yashoda Bhavka Punde All R/o Dhokri, Tq-Akole, Dist-Ahmednagar RESPONDENTS ....... Mr.S.T.Shelke, Advocate for the petitioners Mr.I.S.Thorat h/f Mr.S.K.Shinde, Advocate for respondents ....... [CORAM : A.V.POTDAR, J.] DATE : 15 th June 2009 ORAL JUDGMENT: 1. By the present writ petition, filed under Article 227 of the Constitution of India, the petitioners, original plaintiffs in RCS {2} No.61/2007 pending on the file of Civil Judge, Junior Division, Akole, have challenged the order dated 18.08.2008 passed below Exhibit-25. 2. Rule. Considering the fact that a very small point is involved in this petition, rule made returnable forthwith and by consent of the parties heard finally at the stage of admission. 3. The facts, which gave rise to file the present petition can be summarized as under- The petitioners have filed the suit for declaration and injunction in respect of the properties mentioned in plaint Para No. 1, situated at village Dhokri, Tq-Akole, Dist-Ahmednagar. The respondents have appeared in the said suit and have filed their written statement at Exhibit-20. It is contended by the respondents that the prayer made by the plaintiffs in terms of prayer clause (A) is barred by principle of res judicata, as this subject is already decided in regular civil suit No.108/1981 and now the same cannot be claimed in the present suit. In para 4 of the written statement it is alleged that there is boundary dispute between the parties to the suit and the suit is filed by the petitioners without getting the land measured through TILR and, therefore, in absence of measurement of land through TILR, the suit is not maintainable. Hence, it is prayed to dismiss the suit. {3} 4. It appears that during the pendency of the suit, an application came to be moved by the petitioners for getting the land measured through TILR, as per the share of the parties, which was opposed by the respondents. The application of the petitioners is rejected by the trial court and the said order is challenged in this petition, 5. In this background, heard learned counsel for petitioners followed by learned counsel of the respondents. 6. Considering the submissions advanced across the bar, particularly in view of the decree passed in RCS No.108/1981 it is clear that there was partition of the property amongst the parties to the proceeding under the decree in the said suit. It is also contended by the respondents, in para 2 of the written statement that there is bar of principle of res judicata in respect of prayer (A) and if it is so, and if there was partition between the parties for which decree was passed, then the objection raised on behalf of the defendants, discussed in para 2 of the order that the partition effected between the parties was canceled by the government and there is no separate 7/12 extract or phalani patrak, the land cannot be measured by TILR and hence the application to be rejected then relying on these submission the trial court has {4} committed patent error in rejecting the application. 7. It is a fact that there is partition of the properties mentioned in the plaint as well as in the written statement. The said fact cannot be disputed by virtue of decree between the same parties in earlier civil suit No.108/1981 of which certified copy is shown to me. There shall not be any objection of either side to get the land measured, as per the decree passed in RCS No.108/1981, which is actually a compromise decree. Therefore, the order impugned in this petition requires to be quashed and set aside. Accordingly the order passed by the trial court below Exhibit-25 dated 18.08.2008 is hereby quashed and set aside. The application at Exhibit-25 is allowed. The trial court to appoint TILR to get the land measured through him with the direction to the parties to deposit appropriate proportionate fees in the trial court. The measurement to be carried out as per the decree passed in earlier proceedings i.e. RCS No.108/1981. 8. Rule is thus made absolute on the terms indicated above. The writ petition stands disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp6945-08 {5}