PRAKASH NATHYABA BHOSALE Vs. LAXMAN GENABA BHOSALE

JUDGEMENT

(1.) HEARD the learned Advocates for the parties and perused the record. Rule. By consent the rule is made returnable forthwith.

(2.) PURSUANT to the decree dated 21st September, 1979 in R. C. S. No. 76/74 declaring the shares of the parties, the matter was referred to Tahsildar for partition of the properties. Thereupon partition suggested by the Tahsildar was objected to by the plaintiff Nos. 1 to 3 and the original defendant Nos. 1 and 3 in the said suit. The said objections were overruled by the Tahsildar by an order dated 25-3-1988. Aggrieved by the said order, the plaintiff Nos. 1 to 3 and the defendant Nos. 1 and 3 preferred an appeal to S. D. O. , Phaltan Sub Division, being Appeal No. 3 of 1988 which came to be allowed by an order dated 28th June, 1990. The same was challenged by the defendant No. 2 by filing second R. T. S. Appeal No. 2 of 1990 before the Additional Collector, Satara, who by order dated 30th April, 1993 dismissed the said second appeal. Thereupon the defendant No. 2 filed Revision Application No. 213 of 1993 before the Additional Commissioner, Pune, who allowed the same by order dated 30th May, 2000 and set aside the orders passed by the S. D. O. and the Additional Collector and confirmed the order of the Tahsildar.

(3.) IT is an undisputed fact that the petitioner was not made party to any of the proceedings before the revenue authorities while dealing with the matter pertaining to the partition of the properties consequent to the decree dated 21st September, 1979 in R. C. S. No. 76 of 1974. It is the case of the petitioner that he came to know about the said proceedings before the revenue authorities only after actual execution had commenced on the basis of Additional Commissioners Order dated 30th May, 2000. The petitioner, therefore, filed R. C. S. No. 528 of 2001 for a declaration that the partition table prepared by the Tahsildar is illegal for various reasons including that it is contrary to the decree passed by the Civil Court as well as in contravention of provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred as "the said Act" ). The petitioner also prayed for temporary injunction which was allowed by the trial Court by its order dated 20th March, 2001. The same was challenged by the respondent No. 1 therein, in Misc. Civil Appeal No. 55 of 2001 and the Lower Appellate Court by its order dated 30th April, 2002 allowed the same and set aside the order of the trial Court holding that proper remedy for the petitioner is in the form of the appropriate application before the Executing Court under section 47 of the Code of Civil Procedure, 1908 (hereinafter called as "c. P. C. " ).