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. 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, reported in 1992 Mh.L.J. 262, in the case of Prakash Nathyaba Bhosale vs. Laxman Ganaba Bhosale, reported in AIR 2003 Bombay 41, and the judgment of the Apex Court in the case of Khemchand Shankar Choudhari vs. Vishnu Hari Patil, reported in AIR 1983 SC 124 . 6. Mohammed Ishaq s/o Agdullasaheb Lukade, reported in 1992 Mh.L.J. 262, in the case of Prakash Nathyaba Bhosale vs. Laxman Ganaba Bhosale, reported in AIR 2003 Bombay 41, and the judgment of the Apex Court in the case of Khemchand Shankar Choudhari vs. Vishnu Hari Patil, reported in AIR 1983 SC 124 . 6. Shri Kulkarni, the learned counsel appearing on behalf of the respondent Nos. 2 and 3, has adopted the submissions made by Shri Jaiswal. He further submitted that the respondent No. 1 herein is not entitled for equitable relief inasmuch as though he had sought injunction restraining the other co-sharers from alienating the properties, he was dealing with the properties falling to his share. 7. Shri Kothari, the learned counsel for the respondent No. 1, submitted that since the execution proceedings are continuation of the partition suit, application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure was very much tenable. He further submitted that if certain new events have taken place subsequent to the passing of the decree, the jurisdiction to re-adjust the shares lies only with the Civil Judge and for which the remedy is not available before the revenue authority. He submitted that during the pendency of the suit, the petitioner and the other respondents had sold' the lands at Somalwada, in spite of the injunction order, and as such the respondent No. 1 was deprived of his share in the land at Sornalwada. He further submitted that during the pendency of the first appeal, father of the petitioner, respondent No. 1 and the respondent No.3, had died, and as such the land falling to the share of the father was also required to be distributed amongst his legal heirs. In that view of the matter, it is submitted that the learned Appellate Court has rightly allowed the application. He relied on the judgment of this Court in the case of Anubai w/o Vishnu Sawant vs. Vithoba Shripati Savant, reported in 2004(1) Mh.L.J. 545 = 2004(2) All MR 159, in support of his submission that if a preliminary decree is passed, there could be subsequent preliminary decree also modifying the· preliminary decree, until a final decree is passed. He relied on the judgment of this Court in the case of Anubai w/o Vishnu Sawant vs. Vithoba Shripati Savant, reported in 2004(1) Mh.L.J. 545 = 2004(2) All MR 159, in support of his submission that if a preliminary decree is passed, there could be subsequent preliminary decree also modifying the· preliminary decree, until a final decree is passed. He also relied on the judgment of the Apex Court in the case of Phoolchand and another vs. Gopal Lal, reported in AIR 1967 SC 1470 , in support of the proposition that if an event occurs subsequent to the passing of a preliminary decree, an application for variation is permissible. He also relied on the judgment of the learned single Judge of this Court in the case of Mahadu alias Mahadeo Baji Bhosale vs. Appaji Gunbarao @ Ganpatrao Bhosale, reported in 2003(2) Mh.L.J. 216 , in support of the proposition that Civil Court does not become functus officio once it sends the decree for execution. 8. The learned Single Judge of this Court in the case of Kisan Bhikaji Dalvi (cited supra) has observed thus: "However, when there is such preliminary decree with respect to land, assessable to land revenue, all further proceedings are required to be taken before the Collector or any gazetted officer subordinate to him to whom the powers are delegated by the Collector, as per the provisions of section 54, read with Order XX, Rule 18, Civil Procedure Code. When the matter goes before the Collector, then he has to pass the final decree by coming to the conclusion, how the land should be partitioned between the parties, and then he has to execute that decree by actually putting the parties in possession of the partitions allotted to them. The Civil Court has no say in the matter as to how the land be partitioned between the parties, so to say, for preparing the final decree. All that work is to be done by the Collector." The view taken by this Court in the case of Kisan Bhikaji Daivi (supra), is based on the view taken by another single Judge of this Court in the case of Khajabhai Abdullasaheb Lukade (cited supra). All that work is to be done by the Collector." The view taken by this Court in the case of Kisan Bhikaji Daivi (supra), is based on the view taken by another single Judge of this Court in the case of Khajabhai Abdullasaheb Lukade (cited supra). Another single Judge of this Court in the case of Prakash Nathyaba Bhosaie (cited supra) has taken a view that an application objecting the partition suggested or carried out by the revenue authority pursuant to the decree passed by Civil Court, is not tenable in section 47 proceedings and the only recourse available to the party is to file a separate suit. The Apex Court in the case of Khemchand Shankar Choudhari (cited supra) has taken a view that Collector, under section 54, has ample powers to make an equitable partition and that transferees are also entitled to appear and demand partition. 9. Insofar as the judgment of the Apex Court in the case of Phoolchand vs. Gopai Lai (cited sputa) is concerned, the Apex Court has taken a view that if certain events have taken place subsequent to the passing of the preliminary decree, Civil Court would have jurisdiction to do the variation of the preliminary decree. Relying on the said judgment of the Apex Court, same view has been taken by the learned single Judge of this Court in the case of Anubai vs. Vithoba (cited supra). Insofar as the judgment of the learned single Judge in the case of Mahadu vs. Appaji (cited supra) is concerned, the view taken is that if the Collector effects the partition in violation of the mandate of the Civil Court, then the Civil Court cannot be said to be functus officio. 10. The position, therefore, that emerges is that insofar as the partition of a land assessable to the payment of land revenue to the Government is concerned, once a preliminary decree for partition is passed and a precept is sent to Collector, and the Collector takes an action, all the proceedings would lie before the Collector and if any person is aggrieved, he will have to take recourse to the remedies as available under the Land Revenue Code. The only exception to this would be, if certain subsequent event takes place, necessitating variation in the shares, then the Civil Court would have jurisdiction to pass another preliminary decree for varying the shares of the parties. The Apex Court in the case of Phooichand vs. Gopai Lai (cited supra) has observed thus: "We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the Court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the Court and advantageous to the parties, specially in partition suit, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf, the order of the Court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal." 11. Now let us examine the facts of the present case. The application for injunction has been filed on two premise; firstly, that it is the allegation of the respondent No. 1 that his father and other brothers had sold the land at Somalwada during the pendency of the suit, despite there being an injunction order and hence, according to him, the Tahsildar could not demarcate the shares and put the respondent No.1 in possession of his share. He, therefore, submitted that due to the illegal act on the part of his father and other brothers, he had been deprived of his share in the land at Somalwada and, therefore, he was entitled for readjustment in the Besa land. Secondly, it is submitted that the death of the father during the pendency of the appeal, has necessitated the readjustment of the shares. 12. Insofar as the first ground is concerned, it can very well be seen that if this ground was available to the respondent No.1, who was himself a plaintiff in the suit, he could have very well brought this fact on record by way of amendment to the plaint. Admittedly this has not been done. It can further be seen that though the respondent No. 1 claims that his father and brothers had sold the land at Somalwada during the pendency of the suit, it is to be noted in this regard that in spite of the fact that he had filed an application under Order XXXIX, Rule 2-A, Civil Procedure Code, he did not press the same. It can further be seen that in his examination-in-chief, he has also stated that his father has sold the plots at Somalwada. It could, thus, be seen that this ground on which the application for injunction was sought to be pressed, was very much available during the pendency of the suit, and which could have been brought on record before the trial Court. The decree of the trial Court having reached the finality by dismissal of the first appeal and the second appeal, in my view, the application for injunction which is filed on this premise was not tenable. 13. However, insofar as the second ground is concerned, it is not in dispute that subsequent to the passing of preliminary decree, father of the petitioner, respondent No. 1 and respondent No.3, expired during the pendency of the appeal. Admittedly, his share will have to be distributed amongst his legal representatives. In my view, that cannot be done by the Collector under section 54. In view of the judgment of the Apex Court in the case of Phoolchand (cited supra) in my considered view, that jurisdiction would be available only to a Civil Court. Insofar as the application on that premise is concerned, I find that the application was tenable. 14. In my view, that cannot be done by the Collector under section 54. In view of the judgment of the Apex Court in the case of Phoolchand (cited supra) in my considered view, that jurisdiction would be available only to a Civil Court. Insofar as the application on that premise is concerned, I find that the application was tenable. 14. The perusal of the impugned order would reveal that though it is a very lengthy order running into paragraphs and reproductions of citation after citations, a conclusion has been arrived at in two paragraphs. It is the settled principle of law that while considering an application for injunction, the Court has to consider three aspects viz. (i) prima facie case, (ii) balance of convenience and (iii) irreparable loss. From the perusal of the impugned order, it reveals that the only conclusion on which the injunction has been granted is that even after preliminary decree is passed, the suit continued till the final decree is passed and that if the circumstances so warrant, more than one preliminary decree can be passed. This proposition is well founded on the observations made in the case of Phoolchand (cited supra). However, the only paragraph which considers as to why the injunction has been granted after recording the arguments of the learned counsel, reads thus : "For the reasons discussed above, I have come to the conclusion that temporary injunction is required to be granted in favour of appellant restraining respondents from creating third party interests in the landed properties at mouza Somalwada and mouza Besa during pendency of application filed by present appellant before the Executing Court for adjustment of shares passing of fresh preliminary decree. To this extent appellant has a prima facie case, balance of convenience lies in his favour and he would suffer irreparable loss on account of withholding of injunction." Though the learned counsel for the respondent No. 1 has strenuously urged that the impugned order is a reasoned order, I am unable to agree with the same. 14A. The petitioners have specifically stated in the petition that though the respondent No. 1 is claiming an injunction restraining the other parties from alienating their shares, he is dealing with his own share by creating third party interest. This has not been denied by the respondent No. 1 by filing affidavit. 14A. The petitioners have specifically stated in the petition that though the respondent No. 1 is claiming an injunction restraining the other parties from alienating their shares, he is dealing with his own share by creating third party interest. This has not been denied by the respondent No. 1 by filing affidavit. Insofar as the contentions in respect of the land at Somalwada are concerned, the same were very much available during the pendency of the suit. I, therefore, find that at least insofar as the land at Somalwada is concerned, the respondent No. 1 has failed to prove prima facie case. I find that since the decree has been upheld up to this Court, insofar as the share of the petitioners and the respondent No.3 are concerned, the respondent No.1 has failed to establish prima facie case on merits. However, insofar as the land falling to the share of the deceased father is concerned, same will have to be distributed amongst his legal representatives. 15. Insofar as the balance of convenience is concerned, it can be seen that if the injunction is continued as against the petitioners and the respondent No.3, they will be deprived of their rights to deal with the land to which they are entitled to in view of the decree passed by the Civil Court which has attained finality till this Court and this would be so when the respondent No.1 would be free to deal with the land coming to his share, in his own way. In any case, since I am inclined to grant temporary injunction insofar as the land falling to the share of deceased Shyamrao is concerned, if any equity is to be worked out, same can be done by the final decision on the application which has been filed by' the present respondent No. 1 for readjustment of the shares. 16. In that view of the matter, the following order is passed: The order dated 6th October, 2004 passed by the learned 15th Ad hoc Additional district Judge, Nagpur, in Misc. Civil Appeal No. 184 of 2004 is quashed and set aside. Parties are directed not to alienate or create any third party interest insofar as the land falling to the share of deceased Shyamrao in Survey Nos. Civil Appeal No. 184 of 2004 is quashed and set aside. Parties are directed not to alienate or create any third party interest insofar as the land falling to the share of deceased Shyamrao in Survey Nos. 37/2 and 38/1 at mouza Besa, is concerned, till the final decision of the application filed by the respondent No.1 for readjustment of the shares. Petition is allowed in the aforesaid terms with no orders as to costs in the present proceedings. It is, however, made clear that observations made by this Court herein above are purely upon prima facie consideration of the material for the purpose of grant of injunction, and the learned trial Court would not be in any way influenced by the said observations at the stage of deciding the application for readjustment of shares on its own merits. 17. Rule is made absolute in the aforesaid terms with no orders as to costs. Order accordingly.