ORAL JUDGMENT :- Rule. Rule made returnable forthwith.

2. Shri Kothari, the learned counsel, waives notice for respondent No. 1. Shri Kulkarni, the learned counsel, waives notice for the respondent Nos. 2 and 3. None appears for the respondent No.4 though duly served. However, since no order prejudicial to the interest of the respondent No.4 is being passed, notice on merits to him is not felt necessary. Leave to delete name of respondent No.5. Amendment be carried out forthwith. By consent, heard finally.

3. By way of present petition, the petitioners challenge the order passed by the learned 15th Ad hoc Additional District Judge, Nagpur, dated 6th October, 2004, thereby setting aside the order below Exh. 83 in R. D. No. 87/92 passed by the learned 3rd Joint Civil Judge, Jr. Dn. Nagpur, dated 15th September, 2003.

4. The undisputed facts giving rise to the present petition are as under:

The respondent No. 1-Madhukar filed Regular Civil Suit No. 1576/1985 against his father and brothers including the present petitioners, for partition and separate possession. The said suit came to be decreed vide judgment and decree dated 28th November, 1991. The appeal preferred by the present petitioners being Regular Civil Appeal No. 52/1992, came to be dismissed by the learned District Judge, Nagpur, vide judgment and order dated 7th January, 1999. The second appeal challenging the said judgment, being Second Appeal No. 166/1999 was dismissed on 28th November, 2000. In the Regular Darkhast No. 87/1992 which was filed by the decree-holder, the precept was sent to the Collector. The Collector delegated the powers to the Tahsildar. The Tahsildar, vide order dated 11th March, 2002, allotted the lands to the share of the parties in Mouza Somalwada and Mouza Besa. However, insofar as the lands in Somalwada are concerned, it was found that since houses are constructed on the said lands by people, it was not possible to divide the said lands by metes and bounds. Insofar as the other land is concerned, it has been directed to the parties to get it measured from the City Survey Officer and demarcate it. After the said order was passed, the present respondent No. 1 filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, claiming an injunction that the lands falling to the share of other shareholders at Besa should not be alienated by them during the pendency of the application for readjustment of shares. Same came to be rejected vide order below Exh. 83 dated 15th September, 2003. Being aggrieved thereby, the respondent No. 1 preferred an appeal. The learned Appellate Court allowed the appeal vide judgment and order dated 6th October, 2004 and injuncted the respondents in the appeal from creating third party interest in the properties bearing Kh. Nos. 52/1, 2, 3, and 4 (new) and Khasra No. 83 (new) of Mouza Somalwada and Khasra Nos. 37/1 (new), 37/2 (new) and 38/1, 38/2, 38/3 (new) of mouza Besa, till the decision of the application. Being aggrieved thereby, the petitioners are before this Court.

5. Shri Jaiswal, the learned counsel appearing on behalf of the petitioners, submitted that after the preliminary decree for partition is passed, if the decree is for partition of land assessable to the payment of revenue to the Government, then the Civil Court ceases to have any seisin over the matter and all further proceedings are required to be before the Collector. He further submitted that if the respondent No.1 was anyway aggrieved by the order of the Tahsildar, the forum which was available to him, was to file an appeal before the authority challenging the order of Tahsildar i.e. either to the S.D.O. or the Collector, and the application itself was not tenable. In support of this proposition, he relied upon the judgments of this Court in the case of Kisan Bhikaji Dalvi vs. Krishnabai Maruti Dalvi, reported in 2000(4) Mh.L.J. 485, in the case of Khajabhai s/o Abdullasaheb Lukade VS. Mohammed Ishaq s/o Agdullasaheb Lukade,

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