1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1922 OF 2010 (Satish K. Baheti & Anr. vs. Pramod S. Khillare) 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. MAY 04, 2010. Heard finally by consent of Shri Mohta, learned counsel for the petitioners and Shri Chandurkar, learned counsel for the respondent. The petitioners before this Court are the subsequent purchasers from one Antkalabai and said Antkalabai has derived title to suit land from one Hanjari. There are intervening transactions in between but reference to all those transactions is not relevant for this order. Shri Mohta, learned counsel points out that petitioner No. 2 after purchasing property from Antkalabai has executed a lease deed in favour of petitioner No. 1, who is in possession. The suit is filed by the respondent claiming himself to be in possession on the basis of a 1978 order passed by SDO and that order of SDO was set aside subsequently. He contends that the order was passed by SDO in proceedings instituted by the original allottee/ owner Sitaram. The said Sitaram sold suit property to Hanjari Rathod and 2 then sought restoration by invoking provisions of Section 36 of Maharashtra Land Revenue Code. The authorities ultimately have found that Sitaram did not belong to Andh, Scheduled Tribe and hence the application under Section 36 filed by him was not maintainable. Shri Mohta, learned counsel has invited attention to these subsequent orders also. He, therefore, argues that there was no question of Government or any other authority taking back possession from Sitaram and the entire appreciation of controversy by trial Court is vitiated by an error apparent. He has taken the Court through relevant observations by trial Court as also by lower appellate Court. Shri Chandurkar, learned counsel, on the other hand, contends that though Sitaram was held to be non-tribal that does not have the effect of dispossessing Sitaram and the application of mind by the trial Court as also by appellate Court in this respect is neither erroneous nor perverse. He states that transaction between Antkalabai and petitioner No. 2 and then petitioner No. 2 and petitioner No.1 is found to be prima facie suspicious by the appellate Court and, therefore, a finding of prima facie case has been delivered. According to him, as there are concurrent findings, this Court should not interfere in writ jurisdiction. The finding of possession of the respondent is reached by trial Court because of its appreciation of order of SDO passed in 1978 in favour of Sitaram and by that order Hanjari was directed to hand over the 3 possession to Sitaram. The second reason given by the trial Court is though the said order was later on set aside, there is no material on record to show that Government authorities had taken back the possession from Sitaram. It is apparent that both these grounds looked into by trial Court are not in existence at all. Sitaram sold the property and then sought its restoration by claiming to be a tribal. Though initially his case was accepted, the appellate authority had remanded the matter and then the Tahsildar as also SDO have found that Sitaram did not belong to Andh, Scheduled Tribe. This order of Tahsildar dated 16.07.1986 is confirmed by SDO in appeal on 27.04.1987. It is, therefore, obvious that sale deed executed by Sitaram in favour of Hanjari Rathod is found to be legal and valid. In this situation, there is no question of Government or any other authority taking back the possession from Sitaram. The consideration by trial Court is, therefore, perverse and because of said consideration, it has reached the finding of possession in favour of present respondent. Though Shri Mohta, learned counsel has tried to point out that there are some intervening sale transactions, I do not find it necessary to refer to same because the impact of those transactions is not considered by the trial Court. In this situation, I find that trial Court as also appellate Court have fallen into error in totally ignoring the relevant issues and the orders are unsustainable. It is apparent that material relied upon by rival parties 4 require fresh consideration by the trial Court. For this purpose, the matter is remanded to trial Court. The order passed below Exhs. 5 and 18 on 23.09.2009 and judgment delivered in Misc. Civil Appeal Nos. 105 and 106 of 2009 on 29.03.2010 by District Judge -1, Akola, are hereby quashed and set aside. The trial Court shall consider the entire material afresh by ignoring 1978 order and to find out the relevant law applicable to the controversy. As trial Court as also appellate Court has not considered that material, I have avoided to comment on the material for the first time in writ jurisdiction. The applications at Exhs. 5 & 18 in Regular Civil Suit No. 35 of 2009 are thus restored back to the file of Civil Judge, Junior Division, Patur, for fresh consideration in accordance with law. The said reconsideration shall be done as early as possible and in any case by 31st July 2010. The parties shall appear before the trial Court on 9th June 2010 and shall abide by its further directions in the matter. Writ Petition is disposed of. Rule accordingly. However, there shall be no order as to costs. JUDGE *GS.