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IN THE HIGH COURT OF BOMBAY
R.M.S. Khandeparkar, J.
Prakash Nathyaba Bhosale .... Applicant.
Versus
Laxman Genaba Bhosale.... Respondent.
Civil Revision Application No. 1239 of 2002, decided on 8-8-2002.
Advocates appeared :
G.S. Godbole, for applicant.
U.B. Nighot, for respondent.
Civil Procedure Code, 1908 - Sections 9, 47 and 151, Order XX, Rule 18 - Jurisdiction of Civil Court - Partition decree - Assessment of revenue to Government - Partition alleged as not in accordance with decree - Vital questions of rehabilitation of affected persons not considered - Challenged in a civil suit - Whatever limited control is possible is by way of an independent suit - Bar under Section 47 not effective. -
applicable only in cases where the question can be determined by the Court executing the decree. Once it is clear that the Civil Court is not the Court executing the decree for partition of the estate which is subject to the assessment for payment of revenue to the Government, the Bar provided under Section 47 of CPC for an independent suit by the parties to the decree cannot come in the way of the party approaching the Court with such suit regarding the grievance in relation to the execution of the partition decree. Undoubtedly, the scope of such suit will be subject to the other laws which may bar the jurisdiction of the Civil Court to entertain the suit. For example, in cases of the questions to be determined under the said Act, certainly the Civil Courts will have no jurisdiction to entertain any suit in that regard. It will be exclusively for the Competent Authority under the said Act to decide those issues in view of the provisions of Sections 36-A and 36-B of the said Act
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Section 3 - Preventive detention - Order of - Subjective satisfaction of detaining authority - Authority considering likelihood of detaining authority - Authority considering likelihood of detenu filing bail application - Not likelihood of his being released on bail - Rejection of bail application 3 weeks before passing of order of detention also not taken into consideration by detaining authority - Continued detention of detenu vitiated - Detention order quashed - Set-aside.
Civil Procedure Code, 1908 - Sections 47 and 54, Order XXI, Rule 18(1) - Execution of decree. - Once Civil Court passes decree for partition, execution proceedings for such decree would arise before revenue officer and not before Civil Court and Civil Court cannot entertain any grievance under Section 47 of CPC.
Prevention of Fragmentation and Consolidation of Holdings Act, 1947 - Sections 36-A and 36-B - Revenue authorities effected partition - Allegation that division of property was contrary to provisions under Sections 36-A and 36-B of the Act - Civil Court does not have proper jurisdiction to tackle with this case - Matter needs to be decided by the competent authority under Sections 36-A and 36-B of the Act.
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 Commissioner's 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.").
4. Thereupon, the petitioner filed an application under section 47 read with section 151 of C.P.C. being Exhibit 64 in Reg. Darkhast No. 19 of 1985 pending before the Court of Civil Judge, J.D., Khandala. The said execution proceedings were in relation to the said decree dated 21st September, 1979 in R.C.C. No. 76 of 1974. While opposing the said application, the respondent No. 1 also filed an another application being Exhibit 79 in the same darkhast proceedings. While rejecting the objections to the proposed partition of the properties in terms of suggestion by the Tahsildar under order dated 25th March, 1988, the Executing Court allowed the application Exhibit 79 filed by the respondent No. 1 and dismissed the application Exhibit 64 of the petitioner by impugned order dated 26th June, 2002. Hence the present petition.
5. The objection to the execution of the decree in terms of the suggestion by the Tahsildar under order dated 25th March, 1988 is twofold. Firstly, it is the case of the petitioner that the Watap takta suggested by the Tahsildar is not in accordance with the decree of the Civil Court inasmuch as that the area shown in the decree and the one shown in the Watap-takta is different and some of the properties which were subject matter of th
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