Shantabai Vasant Gujar v. Bhagirathibai Daulat Gujar And Others

1 WP 1308 of 2014

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD Writ Petition No.1308 of 2014 * Shantabai Vasant Gujar, Age 72 years, .. Petitioner.

Versus

1) Bhagirathibai w/o Daulat Gujar, (Deceased).

2) Vimalbai w/o Raman Gujar, Age 52 year, Occupation: Agriculture, R/o Japi, 3) Bhatu Bhaidas Gujar, Age 35 years, Occupation: Service.

4) Ramkrishna Bhaidas Gujar, Age 30 years, Nos.3 & 4 R/o Galwade, Taluka Amalner, Dist. Jalgaon.

5) Rajubai Mahendra Patel, Age 40 years, C/o Mahendra Daulat Patel, R/o Mohadi (Nyahalod)

2 WP 1308 of 2014 6) Kalpanabai Chandrakant Patel, Age 48 yeas, C/o Chandrakant Hiraman Gujar, 7) Sangita Laxman Gujar, Age 45 years, C/o Laxman Motilal Gujar.

8) Rekhabai Vijay Gujar, Age 32 years, C/o Vijay Narayan Gujar.

Nos.7 & 8 R/o Kusumbe, Taluka Chopda, Dist. Jalgaon.

9) Nilam Raman Gujar, Age 35 years, Occupation Agriculture, l0) Rajendra Raman Gujar, Age 45 years, 11) Vijay Raman Gujar, Age 57 years, 12) Raman Jagan Gujar, Age 68 years, Nos.9 to 12 R/o Japi, 13) Sushilabai Purushottam Gujar, Age 60 years, Occupation: Household.

3 WP 1308 of 2014 14) Purushottam Gajmal Gujar, Deceased, through legal representatives:

14A) Sushila Purushottam Gujar, Age 60 years, 14B) Vilas Purushottam Gujar, Age 40 years, Occupation Agriculture Nos.13 & 14-A-14-B 15) Bansilal Daulat Gujar, Died.

16) Dnyaneshwar Motilal Gujar, Age 52 years, Occupation : Agriculture.

R/o Japi, 17) Rajendra Pandharinath Gujar (Died) 18) Minal Rajendra Jain, Age Major, Occupation: Household R/o 23, 24, Ashoknagar, L.I.C. Colony, Behind Water Tank Dhule.

19) Lata Murari Khandelwal Age Major, Occupation Household, R/o Gat No.4, Bhandi Bazar Khunt, C.S. No.2835, Dhule.

4 WP 1308 of 2014 20) Kalpana Manohar Khandelwal, Age Major, R/o Gat No.4, Bhandi Bazar Khunt, C.S. No.2835, Dhule.

21) Rajeshree Jagdish Khandelwal, Age Major, Occupation: Household.

22) Varsha Suresh Khandelwal, Age Major, Occupation: Household.

Nos.21 & 22 R/o Malegaon Road, Near Wagdevta Temple, Near Vitthal Mandir, C.S.No.7440, Dhule.

.. Respondents.

-------- Smt. Sabahat T. Kazi, Advocate, for petitioner. Shri. M.S. Kulkarni, Advocate, for respondent No.9. ---------- CORAM: T.V. NALAWADE, J.

DATE : 2nd SEPTEMBER 2016 JUDGMENT:

1) Rule. Rule made returnable forthwith. Heard both sides for final disposal.

2) The petition is filed by the decree holder to challenge the order made by the learned Civil Judge,

5 WP 1308 of 2014 Senior Division, Dhule on Exhibit 70 in Misc. Application No.227/2012. It appears that for execution of the decree in respect of agricultural land the decree was sent to the revenue authority as provided by section 54 of the Civil Procedure Code. The revenue authority took steps, followed the procedure and then actual possession was given to the decree holder and two panchanamas were prepared on 6-4-2013 in respect of two portions of two different agricultural lands.

3) The respondent judgment debtor took objection before the civil court to this work of allotment of share by contending that there was only preliminary decree and unless the Court confirms the report of the Court Commissioner, possession could not have been given. This submission is accepted by the learned Judge of the executing Court and order is made to the effect that the handing over of the possession was not legal and further direction is given to return back the possession. 4) Law developed on section 54 of the Civil Procedure Code is well settled. It is to the effect that

6 WP 1308 of 2014 when decree of partition etc. in respect of agricultural land is to be executed, nothing remains in the hands of the civil court when decree is sent to the revenue authority. Section 54 of the CPC and provisions of Land Revenue Code give power of creation of different shares and handing over of the shares to the revenue authority. The revenue authority is required to take care of provisions of other laws like Maharashtra Prevention of Fragmentation And Consolidation of Holdings Act, 1957 etc. In view of this position of law it was not open to the executing Court to interfere in the said work done by the revenue authority. Due to this circumstance, the order made by the learned executing Court cannot sustain in law. The petition is allowed. The order is set aside. Rule is made absolute in aforesaid terms.

Sd/- (T.V. NALAWADE, J. ) rsl