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
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
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 aside1
Bombay High Court
2] Adarsha Sahakari Doodh Utpadak vs 6] Tarabai W/O Bharat Gopale on 19 October, 2010
Bench: S. S. Shinde
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
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