Dismissed

Shankar Linganna Gonelwar v. the State of Maharashtra through Collector, Chandrapur and Others

Bombay HC30 Apr 2024SA/306/2007

Case brief

AI extract

What is this about?

Second appeal by a non-tribal purchaser of tribal land challenging dismissal of suit for permanent injunction. High Court held that a letter permitting possession is not a valid transfer under the Land Revenue Code and the Civil Court lacked jurisdiction under the Scheduled Tribes Act to decide possession disputes.

What the court decided

AI extract

Shankar Linganna Gonelwar Vs the State of Maharashtra… — Land Acquisition | Bombay HC (2024)

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2024:BHC-NAG:5126

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2-SA-306-2007.odt 1

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH

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SECOND APPEAL NO. 306 OF 2007

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Shankar s/o Linganna Gonelwar,
aged about 50 years, Occ. Cultivator,
R/o Pachgaon, Post – Pachgaon,
Tahsil – Rajura, District – Chandrapur.

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 ...APPELLANT

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Versus

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1] The State of Maharashtra, through the Collector, Chandrapur, District – Chandrapur.

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2] The Sub-Divisional Officer, Rajura, Tahsil – Rajura, District – Chandrapur.

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3] Shri Madhao s/o Soma Kowe (dead) through LRs 3.1] Jijabai wd/o Madhao Kove, aged about 60 years, Occ. Labour, R/o Pachgaon, Tq. Rajura, District – Chandrapur.

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3.2] Sunita Fulke, aged about 40 years, Occ. Agricultural Labour, R/o Rajura, Tq. Rajura, At post Indiranagar, District – Chandrapur.

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3.3] Babita Sudhakar Gedam, aged about 38 years, Occ. Agricultural Labour, R/o Pachgaon, Tq. Rajura, District – Chandrapur.

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3.4] Santosh Madhao Kove, aged about 37 years, Occ. Agricultural Labour, R/o Pachgaon, Tq. Rajura, District – Chandrapur.

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2-SA-306-2007.odt 2

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3.5] Priyanka Madhao Kove, aged about 34 years, Occ. Agricultural Labour, R/o Kothala, Tq. Korpana, District – Chandrapur.

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...RESPONDENTS

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Dr. R.S. Sirpurkar, Counsel for the appellant.
Shri B.M. Lonare, A.G.P. for respondent nos. 1 and 2.
Shri S.A. Kanetkar, Counsel for the LRs of respondent no.3.

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CORAM : ANIL L. PANSARE, J.
 ARGUMENTS WERE HEARD ON : APRIL 23, 2024
JUDGMENT IS PRONOUNCED ON : APRIL 30, 2024

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JUDGMENT:

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The appeal has been admitted on the following

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substantial questions of law :

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“I) Whether the document Exh. 75 could be treated as
a document of transfer within the meaning of Section
36-A of the Maharashtra Land Revenue Code, 1966 ?
II) Whether the civil Court was not entitled to
entertain the suit in view of the provisions of Section
10 of the Maharashtra Restoration of Lands to
Scheduled Tribes Act, 1974 ?”

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2]The appellant – plaintiff filed suit against Shri

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Madhao Kowe, since deceased and now represented by legal
representatives, as also the State of Maharashtra, seeking
permanent injunction and restraining them from disturbing his

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2-SA-306-2007.odt 3

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possession. The appellant will be hereinafter referred to as
plaintiff, the State of Maharashtra as defendant no.1, Sub-
Divisional Officer, Rajura, as defendant no.2 and the legal
representatives of Madhao as defendant no.3.

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3]The plaintiff – non-tribal came up with a case that
he purchased suit land, i.e., an agricultural land bearing Survey
No. 158, admeasuring 7 acre 25 gunthas, a Class-II occupancy
land, situated at Village – Pachgaon, from defendant no.3 for a
consideration of Rs.2,000/-. The sale deed was executed on
10/3/1970.

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4]Later on, the defendant no.3 initiated proceedings

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under the provisions of the Maharashtra Restoration of Lands
to Scheduled Tribes Act, 1974 (for short “Act of 1974”).
Defendant no.2, vide order dated 28/1/1977, had directed the
plaintiff to restore the possession of the suit land to defendant
no.3. The plaintiff preferred revenue appeal before the
Maharashtra Revenue Tribunal, which came to be dismissed.
The defendant nos. 1 and 2, on 1/3/1977, handed over the suit

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2-SA-306-2007.odt 4

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land to defendant no.3. Defendant no.3 was not interested in
cultivating the suit land and allowed the plaintiff to remain in
possession.

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5]It is further the case of the plaintiff that in the year
1996, on the basis of advice of the then M.L.A., defendant no.3
filed an application with defendant no.2 and thereby requested
to handover the possession of the suit land. Defendant no.2
found that the possession was already handed over in the year
1977 and, therefore, dismissed the subsequent revenue
proceedings. The trial Court vide judgment and decree dated
23/8/2005 was pleased to dismiss the suit on merits as also on
the count that it is hit by the provisions of the Act of 1974.

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6]The plaintiff unsuccessfully challenged the decree
passed by the trial Court in Regular Civil Appeal No. 194/2005.
The plaintiff relied upon document Exh. 75, a letter written by
defendant no.3 to the Revenue Inspector stating therein that he
was not interested in cultivating the suit land. Defendant no.3
has allegedly conveyed that he is not interested in taking

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2-SA-306-2007.odt 5

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possession of the suit land because he has sold it to the plaintiff
by accepting consideration and further that he has another
field for his livelihood.

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7]The First Appellate Court found that the letter does
not bear any date. The plaintiff’s second witness, who was the
scribe of the said letter, however, stated that it was written in
the year 1979. The First Appellate Court noted that this letter,
even if accepted on face value, will be contrary to the object of
the Act of 1974 and will be, thus, of no help to the plaintiff.
The First Appellate Court further relied upon Section 10 of the
Act of 1974 to hold that the question as to the legality of
possession of plaintiff can only be settled, decided or dealt with
by the Collector. The First Appellate Court also referred to
Section 36A of the Maharashtra Land Revenue Code, 1966 (for
short “M.L.R. Code”), which bars transfer of property to non-
tribal by tribal, except with permission of the competent
authority. Accordingly, the First Appellate Court held that
possession of the plaintiff, being illegal, cannot be protected.

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2-SA-306-2007.odt 6

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8]In the aforesaid background, the substantial
questions of law fall for my consideration. The learned Counsel
for the plaintiff submits that there is no dispute as regards the
registered sale deed executed by defendant no.3 in favour of
the plaintiff by which the suit land was transferred. This sale
deed was executed in the year 1970. Thereafter, defendant
no.3 initiated proceedings against the plaintiff claiming
restoration of the suit land. The revenue authority, i.e.,
defendant no.2 directed the plaintiff to restore possession,
which the plaintiff had done. Defendant no.3 executed
possession receipt. It is further undisputed that defendant no.3
was not interested in taking over possession of the suit land
and allowed the plaintiff to retain possession. Defendant no.3
has issued letter Exh. 75 to that effect.

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9]The learned Counsel submits that once the
possession was handed over, subsequent act of defendant no.3,
permitting the plaintiff to continue possession, will favour the
plaintiff, particularly when subsequent proceedings initiated in
the year 1996 by defendant no.3 before the revenue authority

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2-SA-306-2007.odt 7

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seeking restoration of land, has been dismissed. Thus,
according to the learned Counsel, document Exh. 75 coupled
with the previous sale deed would lead to no other conclusion
except that the suit land was transferred in favour of the
plaintiff.

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10]The learned Counsel for defendant no.3 states that
the letter Exh. 75 by itself will not amount to subsequent
transfer. He then focused on the bar to entertain the suit in
terms of Section 10 of the Act of 1974.

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11]Section 10 provides that no Civil Court shall have
jurisdiction to settle, decide or dealt with any question which
in this Act is required to be decided or dealt with by the
Collector, the Commissioner, the Maharashtra Revenue Tribunal
or the State Government. Thus, what is impermissible is to
settle, decide or deal with the question, which under the Act of
1974 is required to be decided or dealt with by the revenue
authorities. A specific query was made to the learned Counsel
for defendant no.3 as to which provision under the Act of 1974

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2-SA-306-2007.odt 8

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requires the revenue authorities to decide or deal with the
question of protection of possession of non-tribal where he
claims possession under the sale deed executed by the tribal.

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The learned Counsel had no clue. Hence, for the time being, I
will skip the issue of bar of jurisdiction of Civil Courts in terms
of Section 10.

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12]What is important is whether document Exh. 75
could be treated as document of transfer within the meaning of
Section 36A of the M.L.R. Code. The answer would be certainly
in the negative for the following reasons.

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13]This document is a letter addressed to the Revenue

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Inspector by defendant no.3 stating therein that he has not
taken possession of the suit land despite being ordered by the
revenue authority because he has sold it for consideration
which he has received. He has further stated that he owns
another field for his livelihood. Accordingly, he made a request
to the State Government to give suit land to the purchaser.
Thus, the letter indicates that defendant no.3 has not taken

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2-SA-306-2007.odt 9

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possession.

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14]Section 3 of the Act of 1974 if read with Sections

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36 and 36A of the M.L.R. Code, what transpires is that the
occupancy of person belonging to Scheduled Tribes cannot be
transferred except with previous sanction of the Collector and
where the occupancy has been so transferred in contravention
with sub-section 2 of Section 36, then on the application made
by the tribal to the Collector, the land so transferred would be
restored to the tribal. Section 3 of the Act of 1974 provides that
the land of tribal-transferor if is held by non-tribal-transferee
under a transfer deed and the land is in the possession of non-
tribal-transferee and has been not put up in non-agricultural
use, the Collector shall either suo motu at any time, or on the
application of a tribal-transferor restore the possession to the
tribal-transferor. Sub-section 4 of Section 36A provides that
where any occupancy is transferred in contravention of sub-
section 1 of Section 36A, the Collector shall, either suo motu or
on an application of any person interested in such occupancy,
hold an enquiry in prescribed manner and decide the matter.

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2-SA-306-2007.odt 10

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15]A careful reading of Section 3 of the Act of 1974
read with Sections 36 and 36A of the M.L.R. Code will clearly
show that the land belonging to tribal, even if transferred to
non-tribal, such transfer, except with previous sanction of the
Collector, will be invalid and, thus, the non-tribal-transferee
will be not entitled to retain possession of the property. The
Collector will suo motu or on an application of tribal-transferor
restore the possession to the tribal-transferor.

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16]The plaintiff before this Court is a non-tribal-
transferee and his holding possession in contravention to the
provisions of the M.L.R. code as also the Act of 1974. The
document Exh. 75, which is a letter written by tribal, if read in
the light of the aforesaid provisions, cannot be treated as
document of transfer. Even otherwise the said letter is short of
necessary ingredients of valid transfer in terms of the Transfer
of Property Act, 1882 read with the Registration Act, 1908. The
plaintiff, therefore, is not entitled to retain the possession.

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17]The aforesaid provisions further indicate when the

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2-SA-306-2007.odt 11

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occupancy/possession is transferred in contravention of the
provisions of Section 36A of the M.L.R. Code or Section 3 of
the Act of 1974, the Collector shall suo motu or on an
application by any person interested in such occupancy shall
hold enquiry and decide the matter. Thus, the issue of
occupancy/possession of non-tribal-transferee will be decided
by the Collector. Consequently, the Civil Court shall have no
jurisdiction to entertain the suit in terms of Section 10 of the
Act of 1974.

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18]The substantial questions of law are accordingly
answered in the negative, meaning thereby that the appeal is
without any substance. The same is accordingly dismissed.

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JUDGE

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Sumit

Shankar Linganna Gonelwar v. the State of Maharashtra through Collector, Chandrapur and Others

Case brief

What is this about?

What the court decided

Shankar Linganna Gonelwar v. the State of Maharashtra through Collector, Chandrapur and Others

Case brief

What is this about?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

Coram

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