JUDGMENT : 1. Rule. Heard finally with the consent of learned Counsel appearing on behalf of the parties. 2. By this writ petition, the petitioner has challenged order dated 29-04-2015 passed by the Additional Commissioner, Nagpur Division, Nagpur, whereby appeal filed by the petitioner under Section 247 of the Maharashtra Land Revenue Code, 1966, (hereinafter referred to as the 'Code') has been rejected and orders passed by the Sub-Divisional Officer and Additional Collector have been confirmed. 3. The main contention raised on behalf of the petitioner herein is that the proceedings initiated before the Sub-Divisional Officer for partition/correction of record of rights under Section 85 of the Code by the respondent no.1 herein was not maintainable in view of a civil suit filed by the petitioner prior in point of time concerning the property in question. The Sub-Divisional Officer, Additional Collector and the Additional Commissioner have concurrently rejected the said objection of the petitioner and the application of respondent no.1 under Section 85 of the Code has been granted. 4. It is the case of the petitioner that he had filed a suit bearing Special Civil Suit No.3 of 2013 for decree of declaration that Sale Deed dated 16-06-2012 executed by the defendant nos. 2 and 3 in the said suit in favour of the defendant no.4 (respondent no.1) herein was not binding on the petitioner and further for a decree of permanent injunction restraining the defendants from making construction on any portion of the suit property. The suit property is 1.58 acres and 2.57 acres of land in mouza Mul, District Chandrapur which was purchased by the petitioner (plaintiff in the said suit) and his own cousin Ramkumar (defendant no.1 in the suit) by registered Sale Deed dated 08-06-1959. The said property was jointly owned by them and it was so recorded in the record of rights. It was the case of the petitioner that there had been no partition between him and defendant no.1 concerning the said property and when it was found that the respondent no.1 (defendant no.4) had started some construction activity in a portion of the said suit land, on enquiries made by the petitioner, it was found that the defendant no.1 had allegedly gifted portion of the suit land to defendant nos. 2 and 3, who in turn had sold specific portion of the suit land by registered Sale Deed dated 16-06-2012 in favour of the defendant no.4 (respondent no.1) herein. This was the cause of action for the petitioner to file the aforesaid suit on 29-04-2015. The relevant pleadings in the said suit filed by the petitioner read as follows : “(02) The defendant no.4 Santosh Ravat had visited the suit property and said defendant no.4 Santosh Ravat had directed their persons to stock the material and to start construction activities on the open space i.e. part of the suit land. The plaintiff's power of attorney holder enquired about the same from defendant no.4 and at the relevant time the plaintiff's power of attorney was informed by said defendant no.4 that he had purchased the property from Dharamsingh and Nareshkumar in the month of June 2012. The plaintiff enquired about the same and also applied for getting certified copies of the documents and on receipt of the same, came to know that Santosh Ravat had purchased the property from Dharamsingh and Nareshkumar by registered sale deed registered at serial no.543 dated 16/06/2012. (03) The defendant no. 1 is/was the joint owner of the property along with plaintiff and as such the Dharamsingh and Nareshkumar cannot sale out the property to the defendant no.4. Similarly from the revenue record especially the ferfar panji no.1555 dated 15/09/2001 it came to the notice that the defendant no.1 had executed gift deed to the extent of 1344 square meters. From the revenue record especially ferfar panji no.5012 dated 30/01/2011 reveals that some document I.e correction deed was executed & the name of ShriKrishna Rice Mill, Prop. Dharamsingh was to be deleted and the same was on stamp paper of Rs. 200/and also the names of Nareshkumar and his father Dharamsingh were recorded as the owner of the half portion of the land. The said ferfar panji also shows that it is in respect of 1344 square metes only. As per the sale deed in favour of Santosh Ravat, executed by Dharamsingh and Nareshkumar, the property was shown and remarked by the boundaries. Actually Dharamsingh and Nareshkumar are not owners of the property; whereas plaintiff and defendant no.1 are the joint owners of the property and as such Dharamsingh and Nareshkumar have no right to transfer the specified property in favour of Santosh Ravat. Actually Dharamsingh and Nareshkumar are not owners of the property; whereas plaintiff and defendant no.1 are the joint owners of the property and as such Dharamsingh and Nareshkumar have no right to transfer the specified property in favour of Santosh Ravat. Similarly the boundaries given in the sale deed was never allotted either to the share of defendant no.1 or Dharamsingh and/or Nareshkumar and as such ownership of the suit property cannot be transferred in favour of Santosh Ravat and so cannot be owner of the portion as styled in the sale deed. (04) The defendant no.1 is the cousin brother of the plaintiff. After purchase of the land, the plaintiff and the defendant no.1 had made constructions on the portion of the suit property as per their mutual understanding. The plaintiff is filing herewith the map of the suit property. The same be treated as the plaint map. The said map also shows the portion in possession of the plaintiff and the defendant no.1, but the portion alleged to have been purchased by the defendant no.4 couldn't be demarcated on the spot. Even as per the sale deed the portion in possession of the plaintiff was also appears to have been sold to the defendant No.4.” 5. Thereafter, in October, 2013, the respondent no.1 (defendant no.4) filed an application for partition and for correction of record under Section 85 of the aforesaid Code. A similar application was also moved by defendant nos. 2 and 3. It was claimed in these applications that the revenue record concerning the suit property was required to be separated and corrected and a partition was required to be effected. 6. Section 85 of the Code reads as follows : 85. Partition (1) Subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947(Act No. LXII of 1947), a holding may be partitioned on the decree of a civil court or an application of co-holders in the manner hereinafter provided. (2) If in any holding there are more than one co-holder, any such co-holder may apply to the Collector for a partition of his share in the holding: Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a civil suit. (2) If in any holding there are more than one co-holder, any such co-holder may apply to the Collector for a partition of his share in the holding: Provided that, where any question as to title is raised, no such partition shall be made until such question has been decided by a civil suit. (3) [The Collector] may, after hearing the co-holder divide the holding and apportion the assessment of the holding in accordance with the rules made by the State Government under this Code. (4) [xxx] (5) Expenses properly incurred in making partition of a holding paying revenue to the State Government shall be recoverable as a revenue demand in such proportion as the Collector may think fit from the co-holders at whose request the partition is made, or from the persons interested in the partition.” 7. A reading of the above quoted provision shows that when question as to title is raised no partition under the aforesaid provision can be made till such a question is decided. In the present case, the aforesaid suit for declaration and injunction filed by the petitioner was admittedly pending when the applications under Section 85 of the Code were filed on behalf of the respondent no.1 (defendant no.4) and defendant nos. 2 and 3. 8. In this backdrop, Shri Bhisikar learned Counsel appearing on behalf of the petitioner submitted that when the petitioner (plaintiff) had specifically pleaded in the suit that the suit property continued to be jointly owned by the petitioner and defendant no.1 and that the respondent no.1 (defendant no.4) was seeking to make construction on the portions of the suit property, the entire dispute between the parties was first required to be decided in the aforesaid pending civil suit and that application under Section 85 of the Code was not maintainable. Emphasis was placed proviso to subsection 2 of Section 85 of the Code. 9. On the other hand, Shri A.S. Kilor, learned Counsel appearing on behalf of respondent no.1, submitted that even as per the pleadings in the plaint, particularly in paragraph 4, the petitioner had himself conceded that there was mutual understanding between him and respondent no.1 as regards portions of suit property and that the defendant nos. 2 and 3 had indeed sold specific portion of the suit property that had fallen to the share of defendant no.1. 2 and 3 had indeed sold specific portion of the suit property that had fallen to the share of defendant no.1. It was contended that when there was a mutual understanding between the petitioner and defendant no.1, there could be no objection to the proceedings under Section 85 of the Code. 10. Having heard the learned Counsel for the parties and upon perusal of the plaint in the present case, it becomes clear that the dispute raised by the petitioner pertained to the registered Sale Deed dated 16-06-2012, which was claimed to be not binding on the petitioner on the basis that the suit property continued to be jointly owned by the petitioner and defendant no.1. Further there had been no partition or division between them. There is specific pleading in the plaint to the effect that the portion of the suit property sold by defendant nos.2 and 3 to defendant no.4 (respondent no. 1 herein) actually is in the possession of the petitioner. Thus, although the suit is for declaration and permanent injunction, the pleadings give rise to the question of title pertaining to specific portions of the suit property between the petitioner and defendant no.1, raising cloud of doubt on the title acquired by the defendant no.4 (respondent no.1) in the present case. In such a situation, the proviso to Section 85 of the Code would certainly come into operation and the Civil Suit would first have to be decided and thereafter application under Section 85 of the Code would be maintainable. A perusal of the orders passed by the authorities below shows that the aforesaid aspect was not appreciated in the correct perspective and the Additional Commissioner erroneously confirmed the orders passed by the Sub-Divisional Officer and Additional Collector under Section 85 of the Code. The Additional Commissioner certainly committed an error by holding that the Sub-Divisional Officer had correctly passed order on the application under Section 85 of the Code in pursuance of validity of the Sale Deed executed in favour of the respondent no.1. The validity of the said Sale Deed is the subject matter of the pending civil suit which is completely ignored by the Additional Commissioner while passing the impugned order. 11. In the light of the above, it becomes obvious that the orders by the Additional Commissioner, Sub-Divisional Officer and Additional Collector are unsustainable. Accordingly, the said orders are set aside. The validity of the said Sale Deed is the subject matter of the pending civil suit which is completely ignored by the Additional Commissioner while passing the impugned order. 11. In the light of the above, it becomes obvious that the orders by the Additional Commissioner, Sub-Divisional Officer and Additional Collector are unsustainable. Accordingly, the said orders are set aside. The instant Writ Petition is allowed and it is held that the application under Section 85 of the Code, in the facts and circumstances of the present case, is not maintainable as the said suit filed by the petitioner, prior in point of time, is still pending. 12. It is submitted by the learned Counsel appearing on behalf of the respondent no.1 that it would be in the interest of justice that the suit itself is directed to be disposed of at the earliest, so that the dispute between the parties is settled. The learned Counsel appearing on behalf of the petitioner has no objection to the aforesaid request. Accordingly, it is directed that the Special Civil Suit No.3 of 2013, pending before the Court of Civil Judge, Senior Division, Chandrapur, shall be decided finally before 31-03-2019. 13. Writ Petition is allowed and Rule is made absolute in above terms.