1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1073 OF 2004 Malan Popat Jagadale ] Age 46 years, ] Occupation – household, ] Residing at Masur, ] Taluka Karad, ] District – Satara. ] .... Petitioner Vs. 1. Prabhakar Maruti Mali ] Age 32 years, ] Occupation – Agriculture. ] ] 2. Arun Maruti Mali ] Age 27 years, ] Occupation – Agriculture. ] ] 3. Smt.Janabai Maruti Mali ] Age 53 years, ] Occupation – household. ] ] 4. Maruti Dattu Mali ] (Since deceased through his ] Legal Heirs who are already ] on record) ] ] .... Respondents 5. Kisan Narayan Jagadale ] (Through his LR’s) ] ] a) Popat Kisan Jagadale ] Age – 66 years. ] 2 b) Uttam Kisan Jagadale ] Age – 61 years. ] ] c) Maruti Kisan Jagadale ] Age – 56 years. ] ] d) Chandrakant Kisan Jagadale] Age – 51 years. ] ] e) Subhash Kisan Jagadale ] Age – 51 years. ] ] f) Suresh Kisan Jagadale ] Age – 36 years. ] ] g) Mrs.Shakuntala Ramhgi ] Bagal, Age – 67 years. ] ] h) Mrs.Sulochana Laxman ] Dhane, Age – 62 years. ] ] i) Mrs.Kamal Vilas Sankpal ] Age – 58 years. ] ] j) Mrs.Anusaya Bhalguram ] Jadhav, Age – 46 years. ] R/at. Malwadi, Post ­Masur, ] Taluka Karad, ] District – Satara. ] l) Smt.Sonubai Kisan Jagdale ] Age – 76 years. ] ] Occupation 5a) to 5f) ] Agriculture and 5g) to 5f) & ] 5l) household. ] Respondent Nos.1 to 3, 5a) ] to 5f) and 5l), 5j)residing at ] Masur, Taluka Karad, ] 3 District – Satara. ] 5g) residing at Yeralwadi, ] Taluka – Khatav, ] District – Satara. ] 5h) residing at Samatanagar ] Near Gas Godown, Singh ] Estate, Kandivali (East), ] Mumbai – 400 101. ] 5i) residing at Indoli, ] Taluka Karad, ] District Satara. ] Mr.Uday P. Warunjikar for the Petitioner. Mr.S.D.Thokade for Respondent Nos. 1 to 3. CORAM : A.S. OKA, J. DATE : 16 th OCTOBER, 2009 JUDGMENT : By this Writ Petition under Article 227 of the Constitution of India, the Petitioner has challenged the impugned order dated 12th June, 2003 passed by the Executing Court in execution of the decree for partition passed in Regular Civil Suit No.317 of 1985 which was modified by Judgment and 4 decree dated 5th December, 1996 by the District Court in Regular Civil Appeal No.314 of 1991. 2. The first to third Respondents herein are the original Plaintiffs. Fourth and fifth Respondents are the original first and second Defendants. The Petitioner is the third Defendant. The Petitioner was impleaded as a party on the ground that land bearing Gat No.123 was purchased by the Petitioner on 4th February, 1980 by registered sale deed executed by the fifth Respondent ( Original Second Defendant). The said land bearing Gat No.123 was purchased by the fifth Respondent from the forth Respondent (original first Defendant) by sale deed dated 8th January, 1979. 3. The suit filed by the first to third Respondents related to lands bearing Gat Nos.31,89, 123, 939, 940 and 952 situated at village Masur, Taluka Karad, District Satara. The said properties have been more particularly described in paragraph 1A of the plaint. The other suit property is Gram Panchayat 5 House No.1239 situated at village Masur, Taluka Karad, District Satara. The said house property has been described in paragraph 1(B) of the plaint. The Trial Court partly decreed the suit and passed a decree for partition relating only to the suit properties described in paragraph 1A of the plaint. The Trial Court rejected the claim of the first to third Respondents as regards the house property described in paragraph 1B of the plaint. The Trial Court directed that the partition of the suit lands described in the paragraph 1A of the plaint be effected in accordance with section 54 of the Code of Civil Procedure, 1908. The decree directs that the land bearing Gat No.123 be adjusted towards the share of the fourth Respondent (original first Defendant) 4. An appeal was preferred by the first to third Respondents against that part of the decree passed by the Trial Court by which the suit as regards the house property described in paragraph 1B of the plaint was dismissed. By the Judgment and decree dated 5th December, 1996 the Appeal was allowed 6 and a decree for partition was also passed as regards the house property mentioned in paragraph 1B of the plaint. 5. The Petitioner filed a reply to the Execution Application filed by the first to third Respondents. It was contended in the reply that the Petitioner was the purchaser of land bearing Gat No.123 and therefore, the said land be allotted to the share of the Petitioner. It is contended that there was no final decree passed as regards partition of the land bearing Gat No.123 and therefore, the decree was in­executable. 6. An application was made by the Petitioner at Exhibit 71 contending that the property bearing Gat No.123 cannot be subjected to partition. In the said application at Exhibit 71, the petitioner contended that the property bearing Gat No.123 be deleted from the suit properties. Another application was made by the Petitioner at Exhibit 78 in which it was contended that during the pendency of the suit, the first Defendant sold the land bearing Gat No.123 to the second Defendant by a registered sale 7 deed and thereafter, the second Defendant sold the said land to the Petitioner. A prayer was made in the said application that there was no decree passed in respect of Gat No.123 and therefore, the said property be deleted from Execution Application. 7. By the impugned order dated 12th June, 2003, the Executing Court directed that precept be issue to the Collector, District Satara for effecting partition of the suit lands in accordance with the decree passed in Regular Civil Suit No.317 of 1985. 8. The learned counsel appearing for the Petitioner submitted that the Petitioner was not impleaded as a party to the suit as well as to the Appeal. He submitted that the Trial Court passed a preliminary decree in respect of lands described in paragraph 1A of the plaint including the land bearing Gat No. 123 but, in an Appeal preferred by the first to third Respondents (original Plaintiffs), there is no decree passed in respect of land 8 bearing Gat No.123. He submitted that what was sought to be executed was the decree of the Appellate Court to which the present Petitioner is not a party. He submitted that in view of the doctrine of merger, only the decree of the Appellate Court could have been executed. He submitted that as the Appellate Court has not passed any decree in respect of land bearing Gat No.123, the order of the Trial Court issuing precept to the Collector is illegal. 9. The learned counsel appearing for the first to third Respondents submitted that the Appellate Court maintained the decree of the Trial Court as regards lands described in paragraph 1A of the plaint and in addition to that passed a decree in respect of house property described in paragraph 1B of the plaint. He submitted that the Petitioner was very much a party to the suit. He has placed on record a true copy of the Judgment in the suit as well as a true copy of the Judgment in Appeal. He submitted that the Petitioner was not a necessary party to the Appeal preferred by the first to third Respondents as 9 the Appeal was confined to the house property with which the Petitioner is not concerned. He, therefore, submitted that the Petition be rejected. 10. I have given careful consideration to the submissions. Perusal of the true copy of the Judgment of the Trial Court placed on record by the first to third Respondents shows that the present Petitioner was impleaded as a third Defendant to the suit and in fact a written statement was filed by the Petitioner. The Trial Court has referred to the written statement of the Petitioner in which it is stated that the first Defendant transfered land bearing Gat No.123 to the second Defendant and the second Defendant thereafter transferred the said land to the present Petitioner. In fact, Issue No.7 was framed by the Trial Court on the basis of the contention of the Petitioner that the land bearing Gat No.123 was a separate property of the Petitioner. The said Issue was answered by the Trial Court against the Petitioner. The Trial Court held that the sale deed executed by the first Defendant in favour of the second Defendant was not binding on 10 the Plaintiffs. The Trial Court held that the first Defendant was not the absolute owner of the said land. Therefore, the Trial Court passed a decree holding that the first to third Respondents (Plaintiffs) were entitled to 1/4th share in the lands described in paragraph 1A of the plaint including the land bearing Gat No. 123. The Trial Court directed that partition be effected in respect of the said land by the Collector in accordance with section 54 of the Code of Civil Procedure, 1908. Even after holding that the sale of land bearing Gat No.123 made by the first Defendant was not binding on the Plaintiffs, the Trial Court while passing a decree directed that Gat No.123 be adjusted towards the share of the first Defendant. It is pertinent to note that the decree passed by the Trial Court was not challenged by any of the Defendants including the present Petitioner, though, the Petitioner was a party to the suit. 11. The first to third Respondents have placed on record a true copy of Memorandum of Regular Civil Appeal No.314 of 1991 preferred by them. The Memorandum of Appeal shows 11 that they had challenged only that part of the decree of the Trial Court by which a prayer made by them for partition of house property described in paragraph 1B of the plaint, was rejected. Perusal of the true copy of the Judgment of the Appellate Court shows that there is no cross objection or cross Appeal filed by any of the Defendants to the decree passed by the Trial Court for partition of lands described in paragraph 1A of the plaint. The house property described in paragraph 1B of the plaint was claimed only by the first Defendant and admittedly, the present Petitioner had no claim over the same. Considering the limited challenge in the Appeal, the Plaintiffs did not implead the Petitioner as a party Respondent to the Appeal as the Petitioner was not at all concerned with the house property. The operative part of the decree passed by the Appellate Court shows that in addition to the decree passed by the Trial Court in respect of property described in paragraph 1A of the plaint, a decree was also passed for partition in respect of house property described in paragraph 1B of the plaint. As section 54 of the Code of Civil Procedure, 1908 was not applicable to the house property, the 12 Appellate Court directed partition of the house property by appointment of Court Commissioner. 12. Thus, the decree for partition and separate possession in respect of the lands described in paragraph 1A of the plaint including land bearing Gat No.123 attained finality as the said decree was not challenged by the Petitioner. In the plaint, it was disclosed that the first Defendant had executed a sale deed in respect of the land bearing Gat No.123 in favour of the second Defendant and the second Defendant had further transferred the said property to the Petitioner. That is why a prayer in the alternative was made in the suit that the land bearing Gat No.123 be allotted to the share of the first Defendant. 13. In these circumstances, it is not possible to find fault with the impugned order by which a precept was ordered to be issued under section 54 of the Code of Civil Procedure, 1908 to the Collector for effecting partition of the properties described in 13 paragraph 1A of the plaint, in as much as the decree passed by the Trial Court has attained finality. The Petitioner can always appear in the proceedings before the Collector or his nominee and raise appropriate contentions as regards the manner in which the partition can effected. There is no illegality with the impugned order and subject to what is observed above, the Petition deserves to be rejected. 13. Accordingly, the Writ Petition is rejected. [A.S. OKA, J.]