1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.433 OF 2010 Mr. Sadanand Vinayak Kulkarni. .. Petitioner Vs Mr. Dharmpal Devu @ Devaram Shinge & Ors. .. Respondents ­­ Shri Chetan Akerkar for the Petitioner. Shri Balaji Baburao Ranashur for Respondents. ­­ CORAM : A.S.OKA, J. DATE : 18th February, 2010. P.C.: . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. 2. The learned counsel appearing for the Petitioner invited my attention to a prima facie finding recorded by the learned Principal District Judge in Paragraph 8 of the impugned judgment. The learned counsel appearing for the Respondents submitted that there are number of documents placed on record of the trial Court which show that the Respondents are in possession of the suit property. 3. The learned counsel appearing for the Petitioner submitted that the application under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 made by the Respondents has been rejected 2 on merits and the Civil Court cannot sit over in appeal against the said order. 4. Nevertheless, the documents produced on record by both the parties will have to be considered by the Appellate Court and thereafter a prima facie finding will have to be recorded as to which party was in possession on the date of institution of the suit. The judgment of the Appellate Court is cryptic and I find that there is no specific consideration by the Appellate Court of the documents produced by the parties. Instead of keeping the petition pending, the Appellate Court will have to be directed to hear and decide the Appeal afresh. 5. Hence, the Petition is disposed of by the passing following order. (a) The impugned order dated 6th November, 2009 is quashed and set aside and the Civil Misc. Appeal No.37 of 2009 is restored to the file of the Appellate Court. (b) The parties are directed to appear before the Appellate Court on 22nd March, 2010 at 11.00 a.m. (c) The Appellate Court will hear and decide the Appeal afresh as expeditiously as possible and preferably by the 1st week of May, 2010. 3 (d) It is made clear that no fresh notice of the date fixed is required to be issued to the parties as the parties are represented by the Advocates in this Court. (d) All contentions of the parties on merits of the Appeal are kept open. (e) The Petition is partly allowed in above terms with no order as to costs. (A.S.OKA, J) ash/