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After deciding preliminary objection, appeal was heard on merits.

Snipping and castigating impugned judgement it was submitted by appellant's counsel that the impugned order is indefensible and cannot be sustained for too many reasons. First and foremost, it was submitted that same court, Special Judge Gangster's Act, on an earlier occasion, in it's final order dated 10.9.90, had held that the disputed properties belonged to the appellant society, which had purchased it through valid sale deeds and it's name had also been mutated in revenue records and revenue courts have also validated it's purchase and registration of name and hence society was entitled to the possession of disputed properties and respondents had no right or title over it and they were trying to grab it illegally and through illegal means. Aforesaid finding recorded by Ld. Special Judge, in earlier order dated 10.9.90, was never set aside nor upturned and hence had attained finality. In this respect incumbent Ld. Special Judge, while passing the impugned order, committed error on the face of the record when it observed that the said order was challenged in Writ Petition No. 6096 of 88, but it failed to take note of the fact that said writ petition was dismissed in default and it was never restored and hence order dated 10.9.90 was revived and was in operation, on the date when the impugned order was passed and consequently observations to the contrary in the impugned order is against the factual matrix of the case and cannot be concurred. Secondly it was urged that while passing the impugned order Special Judge did not advert to the question of entitlement of possession on the merits of evidences adduced before it and without considering that question it ordered that the properties be handed over to the respondents, which order is illegal. Once the respondents were adjudged not to be gangsters, first portion of section 17 does not apply and under the second portion the matter was not even considered by the lower court as to entitlement of possession and hence impugned order cannot be countenanced. It was further submitted that in the impugned order Ld. Special Judge had taken a contradictory opinion than that of his predecessor in office and hence it was incumbent upon it to meet the reasoning recorded by said predecessor, which Ld. Special Judge eschewed conveniently and hence it's opinion suffers from the vice of non-application of mind making impugned order indefensible and unsustainable. In fact, now two diametrically opposite opinions exist on record of the appeal regarding entitlement to possession and hence property could not have been released in favour of respondents. It was also submitted that on the earlier occasion, while passing order dated 10.9.90, Learned predecessor Special Judge had taken note of various revenue court proceedings and orders, which the Learned successor Special Judge completely ignored while passing impugned order. Next it was argued that the appellant Samiti had purchased disputed properties from it's registered owners through valid registered sale deeds and the same had not yet been declared to be a nullity and hence appellant Samiti possessed a valid title over the properties. It was further submitted that enough convincing and uncontroverted sufficient clinching proofs were filed by the appellant establishing that at the time of attachment disputed properties were in actual physical possession of the appellant society and hence Ld. Special Judge was under the mandate of law, u/s 17 of the Act, to return it to the society, when proceedings under the Act were quashed by this court. Section 17 postulates only such an eventuality submitted learned counsel. It was further submitted that the division bench, while quashing the FIR under the Act did not direct quashing of the order dated 10.9.90 and it only quashed criminal prosecution of the respondents under the Act and hence opinion in the impugned judgement that quashing of criminal proceedings against the respondent will entitle them to possession of disputed properties is wholly illegal and against the provisions of section 17 of the Act. Entitlement to possession, under the Act, is different from prosecution for criminal offence argued learned counsel.

Further castigation was for the ground that relevant and important material evidences, which had a direct bearing on the question of possession, were completely eschewed from consideration by Ld. Special Judge while passing the impugned order and hence impugned order is indefensible and prone to criticism and therefore has to be set aside. Elaborating the contention, it was argued that documents such as memo of attachment, application by appointed Administrator Jagdish Narayan and attachment witnesses Ganga Deen and Abujar Khan along with their affidavits testifying that the properties were attached from the actual physical possession of appellant Samiti, various sale deeds and mutation orders passed by competent revenue courts at various stages of the proceedings, police report dated 20.10.97, etc. all were kept out of consideration, albeit these documentary evidences were relevant and germane to consider question of possession. It was further submitted that all these documents unerringly proved that appellant's possession over the properties in question was actual and real and consequently impugned order, for non-consideration of above to referred relevant documentary evidences, is liable to be interfered with and scored out.

Learned Special Judge also committed glaring error on the face of the record in not looking into the reasoning, various judicial orders passed by revenue Courts in mutation proceedings and thereby completely eschewed from consideration relevant and germane evidences in favour of appellant Samiti, which conclusively had clinched the case in favour of appellant. Learned Special Judge also ignored the fact that the decree was never executed and it was time barred decree under which no right accrued to the respondents. It recorded a perverse finding against the merits of the evidence on record on the question of possession. The affidavit by the administrator and the witnesses of attachments, who all were totally independent witnesses and had no axe to grind against any of the parties were ignored albeit it was averred that at the time of attachment properties in dispute were in actual physical possession of the appellant society. Thus, the findings recorded in the impugned judgment are contrary to the undisputed uncontroverted documentary evidences produced by the appellant society and hence, impugned order is susceptible to criticism.