1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6239/2010 Pandurang Gopal Yadav Petitioner Vs. Dattu Bala Yadav (Deceased through heirs) Respondents Mrs.Jayashri Akolkar for petitioner Mr.Abhijit Adagule for Res.1/1,2(i) 3,4,5,8/1 & 9/1 CORAM-Mrs.Mridula Bhatkar,J. DATE -18th July,2011. P.C. . This petition is filed challenging the order dated 6/11/2008 passed by the Deputy Commissioner (Entertainment Tax),Pune Division, in Revision Application confirming the order of Tahasildar, Karveer dated 17/9/1985. The petitioner who is the original plaintiff has filed suit for partition against the respondents before the Civil Court at Kolhapur. The Civil Judge,Kolhapur decreed the suit and ordered that the suit land be divided amongst the plaintiff and respondents equally and possession of ½ share of the suit land is to be given to the plaintiff by the Collector. Pursuant to this order the execution proceeding u/s 54 of the Civil Procedure Code was initiated before the Tahasildar, Karveer 2 and he by order dated 17/9/1985 divided the suit land into three parts as shown in the map and possession of part 1 and 3 was handed over to the plaintiff after carrying out fresh survey scheme. 2 Learned counsel appearing for the petitioner submits that the said scheme was not properly conducted and the division of the suit land into three pieces is not as per the order of the Civil Court. She pointed out that the respondents have constructed deliberately a house which is standing in the middle portion of the suit land during the pendency of the suit and so the order of giving middle portion of the suit land to the respondents is illegal. She submitted that the petitioner is given the side portions of the suit land which is very inconvenient to him and therefore, he cannot enjoy his property. She further submitted that the Tahasildar ought to have removed the encroachment in the middle portion and ½ portion should have been divided in the middle. She further submitted that the third party namely Shankar Yadav has filed suit and demanded repartition of the property. 3 3 Learned counsel for the respondents while opposing the petition submitted that the suit property is partitioned as per the order passed by the Civil Court. In fact more portion of the suit land has come to the share of the petitioner. He submits that the respondents are not aware of any suit filed by Shankar Yadav demanding repartition as this person is not related to either the petitioner or the respondents. 4 The suit land is of 27 acres. So as per the order of the Civil Court ½ share of the suit land i.e. 13.5 Ares should fall in the share of each party. Exh.A, order of Tahasildar, reveals that the plaintiff is awarded 14 gunthas of land and 13 gunthas land is given to the respondents. Thus, as per the order of the Civil Court more than 50% of the property is given to the petitioner. The contention of the petitioner that while carrying out the execution proceeding u/s 54 of the Civil Procedure Code, Tahasildar has acted illegally, is not correct. Though in the middle portion of the suit property, the respondents have constructed a building/house 4 during the pendency of the original suit, these buildings are constructed on the undivided share of the respondents and the petitioner and the said portion of the land is now given to the respondents and such buildings constructed on his undivided share cannot be called as an encroachment. Therefore, the petitioner has no any ground, but it appears that only for the sake of convenience, the petitioner has filed the petition challenging the order passed by the Dy. Commissioner. No illegality is found in the said order. 5 The petition is dismissed with no order as to costs. (Mrs.Mridula Bhatkar,J.)