1 LPA26099/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL (L) NO.26099 OF 2011 IN WRIT PETITION NO.9483 OF 2010 Mohan B. Rao and others ...Appellants v/s Ratnakar V. Chogle and others ...Respondents Mr P.K. Dhakephalkar, Sr. Counsel i/b Mr Omkar Kulkarni for Appellants. Mr S.R. Mishra for Respondent No.1. CORAM : D.K. DESHMUKH AND ANOOP V. MOHTA JJ. DATE : 16TH NOVEMBER 2011. 2 LPA26099/11 P.C. :- 1] Admit. Heard finally by consent of the parties. 2] The relevant facts are that the respondents in this appeal have filed appeal No.DLN/RTS/A-06/2005 before the Sub-Divisional Officer, Mumbai Suburban District under section 247 of the Maharashtra Land Revenue Code principally challenging the mutation entry No.211 in respect of land bearing survey Nos.14/3, 13/6 and 13/8 of Village Shimpoli, Taluka Borivali, Mumbai Suburban District. That appeal was decided by the S.D.O., Mumbai Suburban District by his order dated 26th December 2006. The operative part of the order reads under :- 1.The appeal filed by the present appellants is partially allowed. 2. The case is remanded back to the Tahsildar, Borivali for detailed enquiry 3 LPA26099/11 and taking action as per procedure laid down in the RTS / Tenancy proceedings. 3. No order as to costs. 4. Parties be informed of the decision according to law. The S.D.O. Remanded the proceedings to the Tahsildar for reconsideration of entry No.211. The respondents accepted this order and did not file any appeal. It is appellants who being aggrieved filed an appeal under section 247 of the Maharashtra Land Revenue Code. That appeal was decided by the Deputy Collector, Mumbai Suburban District. The operative part of the order reads thus :- 1)The appeal of the appellants is allowed. 2) The order bearing No.DLN/RTS/A-6/2005 dated 26/12/2006 passed by the S.D.O., M.S.D. is set aside. 3) The M.E. No.211 is confirmed. 4) Parties be informed of this decision 4 LPA26099/11 accordingly. The Deputy Collector (Appeals) allowed the appeal, set aside the order passed by the S.D.O. And confirmed mutation entry No.211. The respondents, feeling aggrieved by that order, approached the Commissioner in revision. That revision was decided by the Additional Commissioner, Konkan Division, Navi Mumbai by order dated 25th June 2010. The Additional Commissioner allowed the appeal filed by the respondents, sets aside the order passed by the Deputy Collector in appeal and set aside the mutation entry No.211. The petitioners feeling aggrieved by this order of the Additional Commissioner in so far as it sets aside mutation entry No.211, filed writ petition No.9483 of 2010 before the learned Single Judge of this Court. The learned Single Judge has disposed off that petition by order dated 14th June 2011, observing that appropriate remedy of the petitioners is to file a civil suit. The present appeal is filed by the petitioners challenging the order of the learned 5 LPA26099/11 Single Judge. 3] The submission of the learned counsel appearing for appellants is that the order of the S.D.O. Remanding the proceedings back and directing the Tahsildar to hold an enquiry into validity or otherwise of mutation entry No.211 was never challenged by the present respondents and therefore, the revisional authority could not have set aside mutation entry No.211, the maximum that could have been done was to set aside the order of the Deputy Collector (Appeals) and restore the order of the S.D.O. We have heard the learned counsel appearing for respondents. He is not able to justify as to how in revision, the Additional Commissioner could have set aside the mutation entry No.211 when the S.D.O. had directed fresh consideration of that entry by the Tahsildar. 4] From the facts narrated above, it is clear that the order of the S.D.O. Remitting the proceedings back to the Tahsildar and directing the 6 LPA26099/11 Tahsildar to reconsider whether mutation entry No. 211 is proper or not was accepted by the respondents. It is only the appellants who had challenged that order before the Deputy Collector (Appeals) who set aside that order and it is only the order of the Deputy Collector which was challenged in revision before the Additional Commissioner. Therefore, the maximum that could have been done by the Additional Commissioner in revision was to set aside the order of the Deputy Collector which was challenged in the revision. The result would have been restoration of the order of the S.D.O. who remands the proceedings back to the Tahsildar. In our opinion, therefore, as the Additional Commissioner was not at all justified in cancelling the mutation entry No.211 because that would result in setting aside the order of the S.D.O., which was accepted by the respondents, following order would meet the ends of justice. 5] The order impugned in appeal is set aside. Writ petition No.9483 of 2010 is disposed off in 7 LPA26099/11 following terms :- The order of the Additional Commissioner dated 25th June 2010 passed in revision is set aside to the extent that it cancels mutation entry No.211. As a consequence, the order passed by the Deputy Collector dated 8th May 2008 is set aside and the order of the S.D.O. dated 26th December 2006 is restored. As a consequence now, as per the order of the S.D.O., M.S.D., the Tahsildar, Borivali will hold a fresh enquiry into the subject matter of mutation entry No.211. All contentions available to both the sides are kept open to be raised before the Tahsildar. Appeal is disposed off. Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE ANOOP V. MOHTA )