MANJULABAI BHAURAO LAKHAMAPURE Vs. LAHANUBAI HIRAMAN PARAKHI

JUDGEMENT

(1.) By this petition, the petitioners have impugned the judgment and order dated 30.7.1994 passed by the Additional Collector, Yavatmal and prayed for restoration of the order dated 19.2.1992 passed by the Sub Divisional Officer, Wani.

(2.) When the above matter was called out for final hearing on 2.4.2007, a request was made by the learned counsel for the petitioner for adjournment to 3.4.2007. On 3.4.2007 the petition was finally heard. However, the counsel for respondent no.2 and 3 did not remain present on 2.4.2007 as well as on 3.4.2007. Learned A.G.P. represented respondent no.1. The matter being old, I decided to proceed with the final hearing of the petition.

(3.) Submissions : Mr.Amol Mardikar, learned counsel for the petitioners, assailed the impugned order passed by the Additional Collector on the ground that there is a failure of jurisdiction on the part of the Additional Collector in ignoring the provisions of Sec. 8AA(2)(e) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. He argued that after the precept was sent to the Collector for effecting partition as per the Decree made by the Civil Court, partition was required to be made by the Tahsildar in accordance with Rule 9 of The Maharashtra Land Revenue (Partition of Holdings) Rules, 1967. He then argued that though there is a prohibition under Rule 10 thereof on the creation of fragment in the process of partition, under Sec. 8AA(2)(e) if the Decree-holders agree to have joint share to avoid creation of a fragment, such a course is permissible and the Tahsildar would not be violating the provisions of Fragmentation Act in such an eventuality.