NANA GOVIND BHADKE Vs. SHANKAR GOVIND BHADKE

JUDGEMENT

(1.) Heard Mr. Dani for the petitioners. None appears for respondents.

(2.) In a suit for partition (Special Civil Suit No. 80 of 1969) filed by respondent nos.1, 2 (who are now represented by their legal representatives) and respondent no.3, a decree for partition was passed against the petitioner (who is also represented by his legal representatives) by the learned Civil Judge, Senior Division, Nashik, and it was declared that the petitioner and the respondent nos.1 and 2 each have 5/16 share and respondent no.3 has 1/16 share in the suit property which consists of agricultural lands. In the execution proceeding no. 13 of 1977 filed by the respondents, the decree was sent to the Collector for effecting partition vide order dated 7 th April 1977 passed by the Civil Judge, Senior Division, Nashik. It appears that the Collector effected the partition and possession was also delivered to the respective holders. On 24 th June 1999, the heir of respondent no.1 made an application to the executing Court that though partition was effected by the Collector, respondent nos.2 and 3 had not taken possession of the portion of land allotted to them by the Collector and that the respondent nos.2 and 3 were obstructing the respondent no.1 in cultivating the land allotted to the share of respondent no.1. She accordingly prayed that her 5/16 share be physically delivered to her through the Court bailiff and papers be sent to the District Inspector of Land Records (DILR) for measurement. The grievance of the petitioner is that without notice to the petitioner, the Court passed an order on the application directing that papers be sent to the DILR for "effecting partition". The petitioner thereafter made an application to the Court for review of the order which was passed without hearing him. However, by an order dated 26 th October 1999, the executing Court rejected the application for review. Aggrieved petitioner is before this Court challenging the original order as well as the order in review.

(3.) In her application dated 24 th June 1999, the applicant has clearly admitted that papers were sent to the Collector for partition and the partition was effected by the Collector. She has further admitted that accordingly possession of the land allotted to share of respondent no.1 and the petitioner was given to them and the possession receipts were issued to them. She however contended that respondent nos.2 and 3 were not satisfied with the partition made by the Collector and therefore they did not accept the portion of the land allotted to their share. She further contended that respondent nos.2 and 3 were obstructing her from cultivating the land allotted to her share. Even if the averments made in the application of the respondent no.1 are taken at the face value, all that she could have done was to file a suit against respondent nos.2 and 3 for injunction restraining them from disturbing her possession of the land allotted to her share. As the partition was effected by the Collector and possession was also delivered, all that the Court was required to do was to dispose of the execution petition on receipt of the report of the Collector. The Court could not have reopened the matter and could not have passed the order directing the DILR to partition of the land as the partition was already effected by the Collector. The impugned order is clearly erroneous. Under section 54 of the Code of Civil Procedure, the partition is to be effected not by the DILR but by the Collector or or any officer deputed him for that purpose.