Bombay High Court
Shri. Kalpesh Shivaram Patil vs State Of Maharashtra on 21 April, 2023
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
914-SA-290-2023.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.290 OF 2023
Shri. Kalpesh Shivram Patil & Ors. ...Appellants
V/s.
State of Maharashtra & Ors. ...Respondents
Mr. Sandeep Koregave, for the Appellants.
CORAM : MADHAV J. JAMDAR, J.
DATED : APRIL 21, 2023 P.C.:
1. Heard Mr. Koregave, learned counsel appearing for the Appellants.
2. Mr. Koregave, learned counsel states that, the Appellants i.e. the original Plaintiffs filed Regular Civil Suit No.1005 of 2022, inter alia, seeking relief that, the notices issued by the Respondents are illegal, null and void and, that, the Plaintiffs be declared as owners by adverse possession and also for other reliefs. He submitted that, the Defendants filed Application under Order VII Rule 11 (d) of C.P.C. seeking rejection of the plaint, on the ground that, notices issued under Section 26 and Section 26 1(A) (a) of the Indian Forest Act, 1927 and Sections 53, 54 & 54 (a) of the 1 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 17/06/2023 19:49:55 ::: 914-SA-290-2023.doc Maharashtra Land Revenue Code, 1966 and, therefore, suit is not competent.
3. The learned Trial Court rejected the plaint on the ground that, Section 26 of the Indian Forest Act, 1927 as applicable to the State of Maharashtra, provides in Sub-
Section 5 of Section 26 that, no Civil Court shall have jurisdiction in any matter provided for by Sub-Section 1(A) of the Indian Forest Act. The said Sub-Section 1(A) reads as under :
"(1A) (a) The Forest-officer may evict form a reserved forest or from any land in a reserved forest any person who, in such forest, trespasses or pastures cattle, or permits cattle to trespass, or clears or breaks up such land for cultivation or for any other purpose, and may demolish any building erected or construction made by such person on such land.
(b) Any agricultural or other crops grown, or any building erected or any construction made, by any person on any land in a reserved forest shall be liable to confiscation by an order of the Divisional Forest-officer.
(c) The provisions of this sub-section shall have effect notwithstanding any punishment inflicted under sub-section (1):
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914-SA-290-2023.doc Provided that, nothing in the above sub- section shall adversely affect the forest rights conferred on the forest dwelling Schedule Tribes and other traditional forest dwellers under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) and the ownership rights of Gram Sabha over the minor forest-produce under the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996)."
4. Perusal of Sub-Section 1 of Section 26 clearly shows that the Forest Officer may evict form a reserved forest or from any land in a reserved forest any person who, in such forest, trespasser; inter alia, proviso of Sub-Section 1A (c) carved out certain exceptions. Therefore, it is clear that, the Civil Court jurisdiction is not entirely barred. In this particular case, the Appellants have sought declaration that they have become owners by adverse possession and, therefore, they cannot be termed as trespasser.
5. Mr. Koregave, learned counsel has relied on the decision of the Supreme Court in the matter between Madhav Prasad Aggarwal and Anr. Vs. Axis Bank Limited & Anr.1, more particularly, on paragraph Nos.10 and 12 of the 1 (2019) 7 SCC 158 3 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 17/06/2023 19:49:55 ::: 914-SA-290-2023.doc said decision. In the said decision, it has been held that, the plaint has to be rejected as a whole or not at all in exercise of power under Order VII Rule 11 (d) of C.P.C.
6. In the present case, as relief of adverse possession is also sought, the plaint cannot be rejected. It is true that, there is substance in the contention of the Respondents that, Civil Courts will have no jurisdiction to deal with the relief sought in the plaint with respect to prayer clause (a) regarding legality of the notices, inter alia, issued under the Indian Forest Act, however, as prayer clause (b) is regarding adverse possession, the plaint cannot be rejected, as the same cannot be partly rejected with respect to prayer clause
(a).
7. Therefore, the following substantial questions of law is involved in this Second Appeal.
i) Whether the prayer clause (b) of the plaint seeking declaration of ownership of the Plaintiffs of the suit premises by adverse possession will attract the bar under Sub-Section 5 of Section 26 of the Indian Forest Act, 1927 [as applicable to the State of Maharashtra]?
ii) Whether the prayer clause (b) of the Plaint seeking declaration of ownership by adverse 4 ::: Uploaded on - 02/05/2023 ::: Downloaded on - 17/06/2023 19:49:55 ::: 914-SA-290-2023.doc possession will come within the purview of Sub- Section 1(A) of Section 26 of the Indian Forest Act, 1927 [as applicable to the State of Maharashtra]?
iii) Whether suit can be rejected as barred by the provisions of the Indian Forest Act, 1927 with respect to prayer clause (b) seeking declaration of ownership by adverse possession?
8. As very short controversy is involved, the Second Appeal is fixed for final hearing on 27th April, 2023 at 2:30 p.m.
9. As Second Appeal involves above substantial questions of law, till next date, action of eviction not to be proceeded against the Appellants.
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