RATNAKAR HARI GANPULE Vs. SITARAM VITHOBA PAKALE

JUDGEMENT

(1.) THIS petition is directed against the order passed by Sub Divisional Officer, Chiplun Division, bearing No. TNC/ARM/SR/6/1976 filed under Section 43(1)B of the B.T. and A.L. Act, 1948. By this order the application filed by the petitioner under Section 29(3) A read with Section 43 1-B of the B.T. and A.L. Act, 1948 for the possession of the lands mentioned in the petition was rejected. By the impugned order the Sub Divisional Officer did not dispute the competency of the petitioner to apply under Section 43 1-B of the Act. Only objection raised by the commissioner is that there is no evidence for having effected the partition of the joint family properties to which the petitioner belongs. The Petitioner contended that he is entitled to 1/3rd share in the joint family property and the joint family property was partitioned in 1970 and the same was reduced in writing in 1975 and by virtue of this partition mutation entry No.1316 was effected in 1979. Therefore, the petitioner contended that all the conditions as laid down in section 43 (1)B of the Tenancy Act, 1948 has been satisfied. The Divisional Commissioner however rejected this contention for want of the documentary evidence having effected the partition of the property. It is also to be mentioned that similar application of the petitioner has been allowed by the Predecessor of the same officer. When this was pointed out by the petitioner to sub Divisional Officer he held that such decision is not binding on him. I find this ground taken by S.D.D. is quite illegal and contrary to the law. The Sub Divisional officer is statutory authority. The collector is authorised by the statute to deal with the matter and when once the Collector in similar matter find that there is partition in the joint family and accordingly the applications were allowed on previous occasions, which is quite binding on the Collector and the Collector cannot dispute the propriety and legality of the finding entered by the Collector in the previous proceedings that the joint family has not partitioned by metes and bounds. The observations made by the Sub Divisional Officer is quite unwarranted and illegal. Since the only objection that has been raised by the Divisional Commissioner under section 43 1-B with regard to the partition of the property of the joint family. No other ground is pointed out in the impugned order to reject the application.

(2.) IN view of this, the findings entered by the Divisional Commissioner is devoid of any merit.