APPARAO BAPURAO MANE Vs. SHIVAJI BAPURAO MANE

JUDGEMENT

(1.) THIS is a petition against the order passed by the learned Civil Judge, Junior Division, Kandhar, in Regular Darkhast No. 22 of 1986. The present respondents Nos. 1 and 2 had filed Regular Civil Suit No. 8 of 1976 in the Court of the Civil Judge. Junior Division, Kandhar, for partition and separate possession. Respondent No. 2 is the mother of respondent No. 1; while respondent No. 3 is the husband of respondent No. 2. The present petitioner and respondent No. 4 are the sons of respondents Nos. 2 and 3. An appeal was filed against the judgment and decree passed by the trial Court, being Regular Civil Appeal No. 160 of 1989, but the same was dismissed. The decree declared that each of the parties was having undivided one-fifth share in the property, which included agricultural lands, assessable to land revenue, and the house property. Thus, both Shivaji and Rukminibai, the plaintiffs in the said suit, each got one-fifth share in these properties.

(2.) SHIVAJI and Rukminibai thereafter filed Regular Darkhast No. 47 of 1982 for partition and separate possession, wherein they had demanded the partition and separate possession.

(3.) IN ordinary course, considering the provisions of section 54, read with the provisions of O. XX, Rule 18, C. P. C. , so far as the partition of agricultural lands is concerned, the papers ought to have been transmitted to the Collector for effecting equitable partition as per the directions issued in the decree. So far as the house property is concerned, no execution petition could have been filed, because there was no final decree for partition of the house property. There ought to have been an application for final decree for effecting partition by metes and bounds of the house property. Inspite of these basic defects in the Execution Petition No. 47 of 1982, the parties proceeded and the Court allowed the parties to proceed in the Civil Court for the purpose of execution of the decree.