1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3329 OF 2009 (Vasant G. Aloni vs. The Additional Commissioner & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 25, 2010. Heard finally Shri Khandewale, learned counsel for the petitioner, Shri Thakare, learned AGP for respondents No. 1 to 3 and Shri Patil, learned counsel for respondent No. 4. The mutation entry against suit property was taken on 09.10.1991 on the ground that property belonged to ancestors of the petitioner and though notice was served upon Respondent No.4, Respondent No.4 chose not to appear. The name of Respondent No.4 was, therefore, directed to be deleted. Respondent No.4 then approached the Sub-Divisional Officer (SDO) in Revision and SDO found that there was no record of any service upon Respondent No.4. The SDO, therefore, allowed revision and directed restoration of entry as it stood prior to 09.10.1991. The petitioner then approached in appeal before the Additional Collector and Additional Collector maintained the order of SDO. Against that order, the petitioner filed revision before the Additional Commissioner and that revision has been 2 rejected. Shri Khandewale, learned counsel contends that the authorities taking mutation have found that notices were duly served and there was no objection. He invites attention to concerned order sheet to show that it has endorsement of issuing notice of its service and also of sending further notice after mutation was certified. These entries are not found to be incorrect and observation has been made that notices were not served. He states that there cannot be any transfer of document from the ancestors to the petitioner. Hence, the orders passed by the Additional Collector and Additional Commissioner are unsustainable. Shri Patil, learned counsel states that the name of Respondent No. 4 is already there as owner and name of ancestor of the petitioner was only appearing as cultivator. In such circumstances, if any change was to be effected, a document transferring ownership from Respondent No. 4 to the petitioner was essential. He further argues that all the three authorities have concurrently found that notices have not been served on Respondent No.4 and hence the mutation proceedings were vitiated. He argues that in such circumstances, no case is made out warranting any interference in writ jurisdiction. Shri Kothari, learned AGP adopts the arguments of Shri Patil, learned counsel for respondents No. 1 to 3 and supports the impugned order. The fact that name of Respondent No. 4 was 3 appearing as owner and name of ancestor of petitioner was appearing as cultivator is not in dispute. The petitioner wanted change therein and therefore, he filed application for effecting mutation. Whether those proceedings were maintainable or not is not the question presently involved. If the case of petitioner is presumed to be correct, there cannot be any title document of his ancestor in his favour. The petitioner is not claiming any title through Respondent No.4. The authorities certifying mutation entries have found that notices were issued on 12.08.1991 and on 09.10.1991 it has been recorded that notice served upon concerned and there was no objection filed. This specific finding recorded by that authority in order sheet has not been stated to be perverse by any of the authorities. The authorities have only mentioned that notice was not served. If there was any specific finding that notices were served, the authorities dealing with it ought to have reached a finding that such conclusion reached by first authority was incorrect and contrary to record. Even today, there is some dispute between the parties about this service. I find that calling of records to verify the documents will take some time. In the circumstances, keeping all contentions open, the matter can be sent back to the Additional Commissioner, Nagpur Division, Nagpur, i.e. Respondent No.1 for taking fresh decision in this respect as early as possible and in any case by 28th February 2010. 4 Writ Petition is disposed of. Rule accordingly. No order as to costs. The parties are directed to appear before Respondent No.1 on 8th February 2010. JUDGE *GS.