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IN THE HIGH COURT OF BOMBAY AT NAGPUR
PUSHPA V. GANEDIWALA, J.
Chandan Singh S/O Sandhu Singh Chandel - Appellant.
Versus
Kokilabai Balkrishna Salame and others Respondents.
S.A. No. 166 of 2020
Decided on : 02-12-2020
Admission - Tribal Land Dispute - Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, Code of 1966 - Section 36, 36C - The judgment discusses the effect of admission of the plaintiff, existence of consent decree between the parties, and the jurisdiction of Civil Courts in the context of tribal land dispute. It highlights the legal provisions of the Restoration Act of 1974 and Code of 1966, and their interpretations in the context of tribal land transfers and jurisdiction of Civil Courts.
Fact of the Case:
The appellant filed a suit for declaration and injunction regarding a tribal land dispute. The deceased Rama, original owner of the land, entered into an agreement to sell the land to the appellant but later claimed tribal status under the Restoration Act of 1974. Various authorities issued conflicting orders regarding Rama's tribal status and the land transfer.
Finding of the Court:
The Court found that the rejection of the plaint was justified based on the jurisdiction of Civil Courts and the lack of cause of action and limitation. It also held that the consent decree between the parties, posing Rama as non-tribal, was illegal and void ab initio.
Issues: The issues included the consideration of evidence for rejecting the plaint, the effect of admission of the plaintiff, the jurisdiction of Civil Courts, and the validity of the consent decree.
Ratio Decidendi: The Court's decision was based on the interpretation of legal provisions under the Restoration Act of 1974 and Code of 1966, the principles of fraud and public policy, and the limitations on tribal land transfers.
Final Decision: The appeal was dismissed as devoid of merits, and the parties were directed to bear their own costs.
JUDGMENT :
ADMIT.
2. Shri Y. B. Mandpe, learned counsel for the respondent Nos. 1 to 3 and Shri I.J. Damle, learned A.G.P. for the respondent No. 4State, waive notice.
3. Heard Shri M.P. Khajanchi, learned counsel for the appellant, Shri Y. B. Mandpe, learned counsel for the respondent Nos. 1 to 3, and Shri I. J. Damle, learned A.G.P. for the respondent No. 4State, on the following substantial questions of law :—
ii. What is the effect of admission of father of the respondents/ defendants that he is non-tribal in the consent decree between the parties before the Civil Court ?
iii. What is the effect of existence of consent decree between the parties vis-à-vis the orders of the Revenue Authorities ?
iv. Whether the plaint is correctly rejected when the suit for declaration and injunction is within the realm of the Civil Courts only ?
Before answering the substantial questions of law, the facts, in nutshell, necessary to decide this appeal are as under :—
4. The appellant herein is the plaintiff, and the respondents Nos. 1 to 3 are the defendants in the suit. Deceased Rama (father of respondent Nos. 1 to 3) was the original owner of the agricultural land bearing survey Nos. 167/3 and 167/4, total admeasuring 2.19 acres, situated at Village-Ballarpur, District-Chandrapur (for short “the suit property”).
5. Undisputedly, deceased Rama had entered into an agreement to sell the suit property with the appellant/plaintiff on 1-7-1971. The possession was also delivered at the time of execution of agreement to sell. However, till 1975, the sale deed was not executed. In 1975, deceased Rama applied for restoration of suit property before the Collector, Chandrapur under The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short “Restoration Act of 1974”), claiming himself to be tribal.
6. The Deputy Collector, Chandrapur, by his order dated 3-3-1977, rejected his application by recording the finding that Rama failed to prove his status as tribal.
7. In an appeal, the Maharashtra Revenue Tribunal vide order dated 22-12-1977 reversed the finding of the Deputy Collector, being perverse, and held that Rama is of ‘Pradhan’ caste, which is a Schedule Tribe. The Maharashtra Revenue Tribunal however further held that the deceased Rama will have to agitate his remedy before the Tahsildar under section 36 of the Maharashtra Land Revenue Code, 1966 (for short “Code of 1966”), and not under the Restoration Act of 1974.
8. Till 1984, deceased Rama did not apply to the Tahsildar under section 36 of the Code of 1966, while the appellant herein agitated his remedy before the Civil Court. He filed a Special Civil Suit bearing No. 1/1977 for specific performance of agreement to sell of the suit property.
9. Before the Court, on 26-10-1978, parties entered into terms of settlement and a consent decree accordingly was drawn. In terms of the consent decree, deceased Rama executed a sale deed in favor of the appellant posing him as a non-tribal.
10. Thereafter, on 3-7-1984, deceased Rama applied to the Tahasildar, Chandrapur for restoration of possession of suit land under section 36 of the Code of 1966. The Tahsildar, Chandrapur allowed the application vide order dated 30-8-1984 by recording a finding that Rama Meshram is a tribal and transfer of land to the non tribal, without permission of the Collector, attracts section 36(2) of the Code of 1966, and declared such transfer as invalid.
11. An appeal before the Sub-Divisional Officer confirmed the order of the Tahsildar. However, the Resident Deputy Collector set aside the order of the Sub-Divisional Officer, and held that the appellant is by caste ‘Thakur’ which was a Schedule Tribe, and hence, he is not liable to restore the land.
12. Rama challenged the order of the Resident Deputy Collector before the Additional Commissioner, Nagpur Division. The
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