ORDER A.B. Naik, J.
1. Today the petition is listed for hearing on interim relief. On 5-7-2005, this petition was heard for motion hearing and it was then adjourned to enable the A.G.P. to produce the record and also to enable the respondents to file reply, interim relief in terms of prayer Clause (C) was granted. On 13-7-2005, on hearing the respective counsel, Rule was granted and interim relief which was granted on 5-7-2005 was ordered to be continued. In response to Rule nisi, the respondent No. 1 has filed reply and contested the petition. Though, this petition was listed for orders for hearing on interim relief, the learned counsel for the respective parties requested that instead of hearing as to continuation or vacating the interim relief, the petition itself may be disposed of finally. Accepting the request, I proposed to dispose of the petition finally.
2. The petitioners by this petition have impugned the order passed by the Divisional Commissioner, Aurangabad Division, Aurangabad in Case No. 09/A/2004/N/Tribal passed on 30-5-2005 in respect of land S. No. 11/1 Gat No. 16 at village Nichpur, Tq. Kinwat, District Nanded. It is contention of the petitioner that the proceedings which are initiated by the authorities under the Maharashtra Restoration of Land to Scheduled Tribes Act, 1974 (hereinafter referred to as the Act) to restore the land to the respondent No. 1 are void ab initio and illegal and taken without jurisdiction. It is contended that on the date of the sale deeds the respondent No. 1's tribe "Naikda" was not recognised as ST., hence he is not entitled for restoration of the land. In other words it is contended that the provisions of the Act are not at all attracted to the facts of the present case and as such the orders passed by the authorities below thus without jurisdiction and the authorities below have assumed the jurisdiction and entertained the application filed by the respondent No. 1 and as such the orders are required to be set aside.
3. To understand the above contentions of the petitioners, few undisputed facts which are borne by record required to be noted:-
The land i.e. S. No. 11 admeasuring 13 acres 20 gunthas situate at Nichpur, now Gat No. 16(hereinafter referred to as the suit land) was of the ownership of one Digamber who by registered sale deed dated 23-6-1969 sold it to the respondent No. 1 herein. After the land was purchased by the respondent No. 1, he sold the suit land to the petitioners by two different sale deeds. First sale deed was executed in the year 1969 which was to the extent of 5 acres and by second sale deed dated 20-3-1970, 8 acres 20 gunthas of suit land was conveyed or transferred to the petitioners, thus the respondent No. 1 transferred entire suit land to petitioners.
4. According to respondent No. 1 the two sale deeds executed by him were between the tribal and non-tribal and as such the provisions of Maharashtra Restoration of Land to S.T. Act, 1974 (hereinafter referred to as Act) are attracted. Thus he initiated proceeding to seek restoration of suit land, which he has transferred in favour of petitioners by abovereferred sale deeds. During the proceeding respondent No. 1 who claimed to be a tribal expressed his inability to get back the land and he did not proceed with the application which he has filed for restoration of the suit land. Accordingly, the Sub-Divisional Officer, Kinwat dropped the proceedings. Thus, the first round of the litigation under the Act came to an end.
5. Thereafter, the present proceedings were initiated by the authorities under the Act. The S.D.O. Kinwat, initiated this proceeding to revise the order dated 7-7-1976. The S.D.O. Kinwat, after noticing the parties and after recording the statement of the parties came to the conclusion that the transfer of the land being within the specified dates and it is affected between the tribal and the non-tribal, as such the tribal is entitled for restoration of land under Section 3 of the Act. Accordingly, by the order dated 24-12-2003, the S.D.O. ordered that the land be taken from possession of the petitioners and be restored to the respondent No. 1 i.e. tribal.
6. Feeling aggrieved by the order dated 24-12-2003 passed by the S.D.O., Kinwat, the present petitioners preferred an appeal before the Divisional Commissioner, Aurangabad Division, Aurangabad under Section 6 of the Act. The learned Commissioner having heard the counsel for the parties came to the conclusion that the transfer i.e. registered sale deeds which were executed between the relevant dates and as the land has been purchased by non-tribal from tribal and therefore, as per provisions of Section 3 of the Act, the land is to be restored to the tribal and accordingly, the Addl. Commissioner, Aurangabad Division Aurangabad vide order dt. 30-5-2005, dismissed the appeal.
7. Feeling aggrieved by the judgment and order dated 30-5-2005 dismissed the appeal, filed by the petitioner and confirming the judgment and order passed by the S.D.O. Kinwat, the petitioners have approached this Court by filing this writ petition. Shri Mandlik, learned counsel appearing for the petitioners contended that on the facts which are brought on record, it is clear that the respondent No. 1 who claimed to be a tribal has transferred the land in favour of the petitioners by two different sale deeds. He contended when the sale deeds were executed, the respondent's claim i.e. he belong to tribe "Naikda" was not included in the Presidential order issued under Article 342 of the Constitution of India, as such though the transaction is between the notified dates under the Act but the tribe "Naikda" was not specified as a 'tribe' on the date of sale deeds, as such the transaction/transfer is not hit or covered by Section 3 of the Act. He contended that on the date of sale deeds, though respondent No. 1, may be claiming as belonging to S.T. "Naikda" but it was not recognised or specified under the Constitution (Scheduled Tribe) Order, 1950 or 1956. Shri Mandlik, submitted that by S.C. S.T. Order Amendment Act, i.e. Act No. 108/76 for the first time, tribe "Naikda" came to be included in list which is admittedly after the sale deeds in question. He thus, submitted that the relevant date is to be considered to invoke provisions of Section 3 of the Act and to restore the land to the non-tribal is the date of transaction. He submitted that on the date of transaction tribe "Naikda" was not included in the list, therefore, the authorities below have no jurisdiction to pass an order of restoration of possession to respondent No. 1. In order to substantiate his contention, Shri Mandlik, relied on the Division Bench judgment of this Court in case of Tukaram Laxman Gandewar v. Piraji Dharmaji Sidarwar by L.Rs. Laxmibai and Ors. reported in 1989 Mh.LJ. 815.
8. Shri Mandlik, has brought to my notice that it was undisputed fact that respondent being "Naikda" and on that basis the authorities have ordered to restore the possession. Therefore, he submitted that the question i.e. required to be considered in this petition is already answered by the pronouncement of the Division Bench in case of Tukaram (supra).
9. Per contra, Shri M.K. Deshpande, instructed by Shri V.P. Kadam, learned advocate for respondent No. 1 submitted that the transfer which was effected by two sale deeds squarely falls within the ambit of Section 3 as the sale deeds were executed before 6-7-1974. He submitted that the land was admittedly purchased by the respondent No. 1 from a non-tribal by registered sale deed dated 24-3-1969 and thereafter the said land was transferred by two different sale deeds executed in the year 1969-70 respectively in favour of the petitioners, who are admittedly the non-tribals. Therefore, he submitted the said transactions comes within the meaning 'transfer' as defined in Section 2(i) of the Act. He therefore, submitted that the question was decided by the authorities below was in respect of transfers executed after the relevant date and therefore, he submitted that the transfer or the sale deeds were undisputedly prior to 1974, thus the authorities below have rightly entertained the prayer made by the tribal and ordered restoration of the possession of the land. He submitted, the act is enacted to protect the interest of tribals. Though the tribe "Naikda" was included or recognised in the Act 108/1976, i.e. after the transfer in question but the fact that respondent No. 1 being a 'tribal' and for that purpose the interest of the weaker class is to be protected, which was done by the authorities below and rightly so. Thus he submitted that looking to the laudable object of the Act.
10. Shri M. K. Deshpande, relied on three judgments of this Court rendered by learned Single Judges which are:
(i) Lachhobai wd/o Gopal Yadao and Ors. v. State of Maharashtra and Anr. reported in 2004(4) Mh.L.J. 142; (ii) Sakharam Bhoju Rathod v. State of Maharashtra and Ors. reported in 2004(3) Mh.L.J. 1018; (iii) and the judgment rendered by me in case of Jagan S/o Zipru Dhole v. State of Maharashtra and Ors. reported in 2004 (3) Mh.LJ. 497.
On the basis of these judgments the learned counsel contended that once it is accepted that the transfer is between a tribal and non-tribal, then the authorities get the jurisdiction to restore the land if it fall as between the relevant dates. In my judgment, the proposition is well founded but the question which is raised in this petition does not rest here, but whether the lands which are transferred by the tribal to a non-tribal, whether on that date the tribal transferee is recognised as required by the Constitution of India, Article 366(25) of the Constitution of India defines 'Scheduled Tribe' which means:
Such tribes or tribal communities or parts of a group within such tribe, or tribal communities as are deemed under Article 342 to be a scheduled tribe for the purpose of this Constitution.
Thus to get benefits under the Act or under any statutory provisions sine qua non is that the tribe must be deemed to be tribe, nonetheless it is always permissible for the Parliament to make a law either to include or exclude a particular 'tribe' from the list as specified by a notification issued under Article 342(1) of the Constitution of India. In later part of this judgment I will advert to this aspect, as it is not disputed that for the first time the tribe 'Naikda' in this part (Marathwada or Ex Hyderabad State) is recognised by the Act passed by the Parliament under Article 342(2) of the Constitution of India i.e. Act No. 108/1976. Hence, it is not necessary for me to refer to those judgments relied on by Shri Deshpande, as in those cases, the question which I am dealing with did not arise for consideration.
11. Then Shri Deshpande, submitted that for the first time, a contention is advanced before this Court that on the date of transaction "Naikda" was not included by the Act No. 108/1976 passed pursuant to Article 342(2) of the Constitution of India. As this contention was not raised before the authorities below, thus the learned counsel submitted, that this Court may not allow the petitioners to raise this contention to challenge the impugned order for the first time. No doubt, it is true that before the authorities below the contention which is being advanced before this Court was not taken in so many words. But looking to the aspect that the respondent No. 1 approached the authorities claiming that he belong to S.T. "Naikda" and accepting this contention of respondent No. 1, the authorities below proceeded to consider the claim and allowed the application filed by the respondent No. 1. Therefore, accepting this fact, this Court has to consider whether the tribe "Naikda" prior to the Scheduled Caste and Scheduled Tribes Orders (Amendment) Act, 1976 was included in 1950 or 1956 Order as to this part of the then existing State. Therefore, I have to proceed with the undisputed facts that respondent No. 1 belongs to S.T. "Naikda". This fact or the status of the respondent No. 1 has been accepted by both the authorities below and as the authorities below have proceeded to consider the claim of the respondent No. 1 on the ground that the respondent No. 1 belongs to "Naikda" a S.T. and this fact is accepted by respondent No. 1 and also has been accepted by both the authorities below and as this Court hearing this writ petition filed under Article 227 of the Constitution of India, hence that finding regarding social status of respondent No. 1 recorded by both the authorities below has to be accepted and that finding has to be upheld and thus the point raised has to be appreciated on the basis of this finding.
12. Once the finding regarding social status of the respondent No. 1 as "Naikda" is accepted, then the question arises for my consideration, whether at what point of time i.e. the date of transfer or the date on which the tribe "Naikda" is recognised as a 'tribe' by Act of 108/1976, the status of the respondent No. 1 is required to be considered in order to attract the provisions of the Act and to restore possession of the suit land under the Act. Now I will refer to judgment of this Court on which the learned counsel for the petitioners relied. The Division Bench of this Court in Tukaram's case (supra) was dealing with identical question which I am dealing now with only difference that those proceedings which were before this Court and point fall for consideration of the Division Bench was under Section 36-A of the Maharashtra Land Revenue Code, which authorises the revenue authorities to restore the land to the Scheduled Tribe, who had transferred the land to non-tribal, without obtaining prior permission of the Collector. The petitioner i.e. Tukaram in that case was a non-tribal against whom an order of restoration of possession of an agricultural land in favour of a tribal was passed by the Collector, Nanded. The land which was in question in that case was originally belong to a non-tribal from whom the tribal has purchased by registered sale deed dated 24-4-1974 and on purchase of that land from the non-tribal, the tribal sold that land to the non-tribal who was petitioner before this Court by registered sale deed dated 9-4-1974. The proceedings under Section 36-A of the Maharashtra Land Revenue Code were initiated for restoration of possession of the land to the tribal as according to tribal the transfer was in contravention of the provisions of Section 36-A of the Code. It was contended before this Court that the respondent who claims that he belongs to "Naikda" the tribe which is included as S.T. by virtue of amendment to the S.C. and S.T. Order (Amendment) Act, 1976 which came into force on 27-7-1977 and made applicable to the State of Maharashtra from that date. It was contended before the Division Bench that on the date of the sale deed the respondent was not recognised as 'tribe' but was recognised only after 27-7-1977, when Act No. 108/1976 was made applicable. The Division Bench considering this aspect held that the transaction which was entered into between tribal and non-tribal was prior to the S.C. and S.T. Order (Amendment) Act, 1976 and therefore, the provisions of the Code are not applicable and not attracted, hence, possession to the tribal cannot be restored. On these undisputed facts, B. N. Deshmukh, J., (as then he was), speaking for the Bench observed:
9. The provisions of Section 36-A, therefore, provide that no such occupancy of a tribal shall be transferred in favour of any non-tribal by way of sale, etc. except on the application of such non-tribal and except with the previous sanction of the Collector. This section, therefore, provides that no occupancy of the tribal can be transferred by way of sale without permission of the Collector in favour of a non-tribal. The restriction is provided for transfer. The status of the parties, therefore, has to be considered at the time or prior to completion of the transfer. The change in status after the transfer, if any, has no relevance and restrictions provided under Section 36-A are not at all attracted. The sale may be even after 1974 but the sale must be between tribal and non-tribal. The parties must have that status of being tribal at the time of the transfer and not subsequently. That does not seem to be the intention of the Legislature. The Legislature wanted to extend protection to the persons who are tribal at the time of transfer. The protection, therefore, cannot be extended to the persons who were not tribals at the time of transfer but the status of belonging to Scheduled Tribe is conferred thereafter. In our opinion, the provisions of Section 36-A are not at all attracted in the present case in view of the admitted fact that the status of respondent No. 1 as Scheduled Tribe is conferred on him by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, which came into force on 27th day of July, 1977. The respondent deceased Piraji could claim status of belonging to Scheduled Tribe on or after 27th day of July, 1977 and not before that. The transfer under a sale deed dated 9-9-1974, was therefore, not between tribal and non-tribal but between non-tribals to which provisions of Section 36-A cannot apply. 10. The argument of Shri Dhuldhwaj is that the provisions of Amendment Act No. 108/1976 include Naikda Caste in Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and will have to be given retrospective effect to confer the benefit to the tribal under Section 36-A of the Maharashtra Land Revenue Code. It is not possible to accept this contention because in order to give retrospective effect there must be intention of the Parliament or Legislature expressed in so many words or such intention must be gathered by necessary implication from the language used therein. The wording of the Amendment Act is clear and there is nothing expressed regarding retrospective effect nor it is possible to gather such intention by necessary implication. Reference can be made in this connection to the decision of Madhya Pradesh High Court in Mangilal and Ors. v. Registered Firm Mittilal Radheylal Rastogi and Ors. , where the provisions of this Amendment Act No. 108/1976 were considered and it is held that the Amendment Act is not retrospective in effect.
(emphasis by me) Bearing in mind the pronouncement of the Division Bench of this Court and the case at hand arose under the Act, thus it is to be noted that the Act is supplemental or incidental to the Maharashtra Land Revenue Code. Thus the above quoted observation has to be made applicable with equal vigor to the provisions of the Act which also provides for restoration of the lands to the tribal. Hence, the abovesaid observation of the Division Bench, in my judgment being binding on me and applying the said ratio to the facts of this case which are not in dispute, as such the contention of Shri Mandlik, deserves to be accepted, as on the date of sale deeds the respondent No. 1's tribe was not recognised as Scheduled Tribe, the provisions of Section 3 of the Act are not attracted. Thus the authorities under the Act gets no jurisdiction to order restoration of the suit land to the respondent No. 1.
13. If the contention of Shri Deshpande is accepted, then I have to hold that Act No. 108/1976 operates retrospectively. Such contention was in fact advanced before the Division Bench, in Tukaram's case (supra) and the learned Judges negatived that contention. Thus it is not possible for me to accept contention of Shri Deshpande. Even though the respondent No. 1 is a person belonging to S.T. but unless the tribe is included by law enacted by the Parliament in terms of Article 342(2) of the Constitution of India, such person cannot be considered to be entitled to protection or benefit of the Act. Now I will consider the constitutional and statutory provisions to test the contention of Shri Mandlik, learned advocate. It is admitted fact and a judicial notice has to be taken that this part of Maharashtra State known as 'Marathwada' prior to States Reorganization Act, was part and parcel of Hyderabad State. The then Hyderabad State has enacted a law known as "The Tribal Areas Regulation 1359 Fasli (No. III of 1359 F.) which was published in Jarida (i.e. gazette) No. 5, on 31st Azur, 1359 F. = i.e. October 24, 1949. This regulation is issued after the Hyderabad State merged in Union of India. The regulation is made for better administration of the tribal areas in Hyderabad State. Term tribe is defined in Section 2(f) of the Regulation which reads thus:
"Tribe" means Bhils, Chenchu, Gonds, Hill Reddis, Kolam Koyas, Naikpod, Pardhan, Thoti and includes all sub-divisions of these tribes and in relation to any notification to any notified tribal areas includes also any other tribe which Government may by notification in the Jarida declared to be a tribe for the purpose of this Regulation in that area.
Thus from the above enactment, tribe "Naikda" was not recognised in Hyderabad State even prior to the Constitution.
Then came the Constitution of India, Article 342 of the Constitution of India reads thus:
342. Scheduled Tribes. - (1) The President [may with respect to any State (or Union territory) and where it is a state (****), after consultation with the Governor (***) thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State (or Union territory, as the case may be).
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
By virtue of powers vested under Article 342 of the Constitution, the Hon'ble President is empowered to issue public notification for the first time specifying the castes, race or tribe or part of groups within caste, race or tribe shall for purpose of the constitution be deemed to be Scheduled Caste or Scheduled Tribe in relation to a State or Union territory. The word "castes" or "tribes" in the expression "Scheduled Castes" and "Scheduled Tribes" are not used in the ordinary sense of the term, but are used in the sense of the definition contained in Article 366(25) of the Constitution to which I had referred supra. In view of this aspect a caste is a scheduled caste or tribe, is a scheduled tribe only if they are included in The Presidential Order issued under Article 341 or 342 of the Constitution of India. The Hon'ble President has issued the Constitution (Scheduled Tribes) Order 1950 and subsequently added/amended by amendment Act, passed by the Parliament in terms of Article 342(2) of the Constitution. Thus by reading Article 342, one aspect is clear that at first instance the President with consultation of Governors of the State, publish a notification specifying a particular caste or tribe as Scheduled Tribe etc. then thereafter, the jurisdiction or authority lies with the Parliament either to include or exclude a particular caste/tribe from the notification issued under Article 342(1) of the Constitution of India. Thus, it is the Parliament alone has a power to include or exclude a particular caste/tribe from the list so notified. Therefore, even by birth a person though born in a tribe community, till that community is recognised, he cannot get that status. (See Constitution Bench Judgment in State of Maharashtra v. Milind reported in 2001(1) Mh.L.J. (S.C.) 1 = (2001) 1 SCC 4). With this backdrop, I will have to find out whether tribe "Naikda" was ever recognised in the Ex Hyderabad State or Ex Bombay State etc. In previous para I had tracked the legislation which was in operation when the Hyderabad State became part of Union of India.
14. After the commencement of the Constitution of India on January 26, 1950, The Constitution (Scheduled Castes) Order 1950 and the Constitution (Scheduled Tribes) Order 1950, the President has made the order in exercise of powers conferred by Clause (1) of Article 342 of the Constitution of India.
Part III of the Order, 1950 pertains to Bombay State (at that time, Nanded District was not part of Bombay State, hence it has no application). Part IX of the Order, 1950 is in respect of Hyderabad State.
Part IX - HYDERABAD.
Throughout the State:-
1) Andh, 2) Bhil, 3) Chenchu, or Chenchwar, 4) Gond (including Naikpod and Rajgond), 5) Hill Reddis, 6) Kolam (including Mannervarlu), 7) Koya (including Bhine Koya and Rajkoya), 8) Pardhan, 9) Thoti.
Then came the S.C. and S.T. Orders (Amendment) Act i.e. Act No. 63/1956 which came into force on 25th September, 1956, by virtue of Section 4 of the Act, S.T. Order 1950 came to be amended, Schedule III of this Act specify the Scheduled Tribes.
Part I pertains to Andhra State where there is no entry of "Naikda" scheduled tribe.
Part III pertains to Bombay State - entry No. 13 which was previously existing was retained as it is.
Then the States Reorganisation Act, 1956(Act No. 37 of 1956) was passed by the Parliament and in view of Section 41 of States Reorganisation Act, 1956, the President made the order i.e. S.C. and S.T. List (Modification) Order 1956 on 29th October, 1956 and to apply from 1st day of November, 1956 to the new States as amended Schedule in of the Order pertains to S.T.
Part IV of Schedule III pertains to Bombay State, which reads thus:
1. Throughout the State except the districts of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara, Chanda, Aurangabad, Parbhani, Nanded, Bhir, Osmanabad, Halar, Madhya Saurashtra, Zalawad, Gohilwad, Sorath and Kutch. -
Entry No. 1 Barda
2...
3...
13. Naikda or Nayaka, including Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka and Nana Nayaka.
Thus, under this entry, tribe "Naikda" though referred but it is not in relation to District Nanded.
Then came the Bombay Reorganisation Act, 1960 and from 1st May, 1960, Maharashtra State was formed by virtue of Section 27 of this Act. The amendment of the Constitution (Scheduled Tribes) Order, 1950 came to be amended which was in existence on 1-11-1956.
Part VIIA pertains to Maharashtra which reads thus:
1. Throughout the State except the district of Buldana, Akola, Amravati, Yeotmal, Wardha, Nagpur, Bhandara, Chanda, Aurangabad, Parbhani, Nanded, Bhir, Osmanabad and Rajura:-
Entry No. 1 Barda
2...
3...
13. Naikda or Nayaka, including Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka and Nana Nayaka.
Thus in this entry also "Naikada" S.T. was not recognised qua Nanded District.
Then came the S.C. and S.T. Orders (Amendment) Act, 1976, w.e.f 18th September, 1976.
Part IX pertains to Maharashtra:
Entry No. 35 reads thus:
35. Naikda, Nayaka, Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka Nana Nayaka.
Thus for first time, S.T. "Naikda" for entire State of Maharashtra was recognised. As for the first time in 1976, tribe "Naikda" was included and shown as Scheduled Tribe, throughout Maharashtra State, the sale deeds in question were of 1969 and 1970, executed by respondent No. 1 in favour of petitioners i.e. prior to 27th July, 1977, on which date Act No. 108/1976 came into force, as such the sale deeds being valid the provisions of the Act are not attracted. Therefore, looking to the above statutory provisions contained in S.C. and S.T. Order as amended by amendment Act from time to time and considering the judgment of the Division Bench in case of Tukaram (supra), in my judgment the authorities below have no jurisdiction to entertain any application or claim made by the respondent No. 1 though belong to "Naikda", his tribe was not included in the list on the date of transfer, as such he is not entitled to seek restoration of possession. Therefore, in my judgment, following the judgment of the Division Bench (supra). I hold that the relevant date to consider restoration of land to a "tribal" under Section 3 of the Act is the date on which the transfer is effected. As such from foregoing discussion, it is apparent that a) tribe "Naikda" qua Ex Hyderabad State and Marathwada region was not recognised as Scheduled Tribe till 27-7-1977 i.e. on the date Act No. 108/1976, came into force; b) the sale deeds were executed by respondent No. 1, in the year 1969 and 1970, as the transfer is effected by respondent No. 1 when his social status is not recognised. Hence, the order passed by both the authorities below are required to be set aside. As on this point only the petition succeeds, it is not necessary for me to refer other contentions those are raised by the respective counsel and three judgments of this Courts which are relied on by Shri M. K. Deshpande, learned advocate for the respondent No. 1. Accordingly, petition succeeds. The orders passed by the authorities below at Exhs. A and B are set aside. The claim put forth by the respondent No. 1 is negatived and his application for possession of the suit land is dismissed. Rule made absolute in terms of prayer Clause (B). However, there will be no order as to costs.