1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7020 OF 2006 Shivram Ragho Gharat since deceased through his legal heirs 1.Ravi Shivram Gharat & ors. ...Petitioners. vs. 1.Trimbak Narayan Kharkar ...Respondent. --- Mr.Sachin S. Punde, for Petitioners. Mr.N.R.Bubna, for Respondent no.1. --- CORAM: D.K.DESHMUKH, J. DATED: 14th March,2008. P.C.:- 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. By this petition, the petitioners challenge 2 the order dated 26.6.2006 passed by the trial Court on the application at Exhibit 53 on record of Regular Civil Suit no.47 of 1995. That suit has been filed by the respondent-plaintiff claiming a decree of declaration that before the suit land was compulsorily acquired it was in possession of the plaintiff as tenant and he was deemed purchaser of the land. He has claimed further declaration that he is entitled to allotment of the land. The trial Court on the basis of rival pleadings framed seven issues. Thereafter, an application was made by plaintiff stating in that application that he has filed the suit for declaration that the award made in the land acquisition proceedings should be corrected. He further states that out of the issues framed by the Court, issue no.1 is the issue of tenancy and therefore, it should be referred to revenue court. On that application, an order was made by the trial Court on 26.6.2006. Perusal of the order of the trial Court shows that instead of referring issue no.1 as per the application filed by the plaintiff, the trial Court has made reference of the entire suit to the revenue Court under Section 12(a) of the 3 Bombay tenancy and Agricultural Lands Act. However, the relevant provision appears to be Section 85(A) and what can be referred to is only the issue and not the entire suit for decision. Perusal of the order shows that the Court has considered the provisions of Section 12(a) of the Act. Section 12 of the Act appears to have been repealed. Nowhere in the order the relevant provisions of Section 85 of the Act has been considered. The application on which this order is made is misconceived. The order made by the learned Court suffers from total non application of mind to the record and to the law. In my opinion, the only option available to this Court is to set aside the order. 3. In the result, therefore, the petition succeeds and is allowed. The order impugned in the petition is set aside. However, this order will not come in the way of the plaintiff making a fresh application after considering the relevant provisions of law. In case such an application is made, the trial Court shall decide it in accordance with law without being influenced by this order. 4 (D.K.DESHMUKH, J.) ---