Bombay High Court
Chandan Singh S/O Snadhu Singh Chandel vs Kokalibai Balkrishna Salame And Others on 2 December, 2020
Author: Pushpa V. Ganediwala
Bench: Pushpa V. Ganediwala
SA 166.2020.odt
1/19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 166 OF 2020
Chandan Singh S/o Sandhu Singh Chandel,
Aged about 64 years, Occupation - Cultivation,
R/o Ballarpur, Tah. Ballarpur,
District Chandrapur.
...APPELLANT
(ORI. PLAINTIFF)
// VERSUS //
1. Kokilabai Balkrishna Salame,
Aged about 54 years, Occupation - Household.
2. Ku. Chandrakala D/o Rama Jadhav,
Aged about 48 years, Lunatic,
through guardian elder sister - defendant No. 1.
3. Ku. Ganga D/o Rama Jadhav,
Aged about 41 years.
All are residents of Ballarpur, Tah. Ballarpur,
District Chandrapur.
4. The State of Maharashtra,
through Collector, Chandrapur,
Representing State of Maharashtra.
...RESPONDENTS
(ORI. DEFENDANTS)
Shri M.P. Khajanchi, Advocate for the appellant.
Shri Y.B. Mandpe, Advocate for the respondent Nos. 1 to 3.
Shri I.J. Damle, A.G.P. for the respondent No. 4 - State.
CORAM : PUSHPA V. GANEDIWALA, J.
DATE OF RESERVE : NOVEMBER 26, 2020.
DATE OF PRONOUNCEMENT : DECEMBER 02, 2020.
JUDGMENT :
ADMIT.
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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. 4 - State, 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. 4 - State, on the following substantial questions of law :-
i. Whether the First Appellate Court is correct in considering the evidence of the appellant/plaintiff for deciding the application for rejection of plaint ?
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-a-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:-::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 :::
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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 01/07/1971. 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 03/03/1977, 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 ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 4/19 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 03/07/1984, 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 30/08/1984 by recording ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 5/19 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 Commissioner held that subsequent statement by Rama that he is not tribal in the compromise before the Court, cannot be used against him without knowing the compulsion or set of circumstances under which the statement was made in denial of his being a tribal. The Commissioner turned down the order of the Resident Deputy Collector, and restored the orders of the Sub- Divisional Officer and Tahsildar and directed for restoration of the suit land to deceased Rama.
13. The appellant's challenge in Writ petition No. 1884/1989 before this Court was also failed. This Court in judgment dated 31/01/1990 in para 6 has observed as under:- ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 :::
SA 166.2020.odt 6/19 "6. From the above discussion it will be seen that there is a finding of all the courts in favor of the respondent that he belongs to Pradhan caste which is a tribe except the order of the learned Resident Deputy Collector who wanted to go out of way and favor the petitioner XXXX"
14. This Court confirmed the order of the Additional Commissioner, Nagpur. Letters Patent Appeal No. 61/1990 also came to be dismissed on 04/06/2003 for want of maintainability and the Special Leave Petition No. 13437-13438/2003 before the Hon'ble Apex Court also dismissed on 31/02/2005, and the Review Petitions before the Apex Court bearing Nos. 656-657/2005 came to be dismissed on 30.03.2005.
15. The plaintiff's application before the Caste and Tribes Scrutiny Committee, to scrutinize the caste of the defendants, also turned futile.
16. Writ Petition No. 2369/2005 before this Court for relief to direct the Scrutiny Committee to verify the caste of the defendants also came to be dismissed on 13/07/2005. The application for review bearing No. 626/2005 also came to be dismissed on 17/02/2006.
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17. The S.L.P. No. 4987/2006 before the Hon'ble Apex Court came to be withdrawn by the appellant with liberty to approach the appropriate forum vide order dated 07/07/2006.
18. Accordingly, the appellant filed the present suit for Declaration and Injunction to declare that the order dated 30/08/1984 of the Tahsildar, and the order dated 21/05/1989 of the Additional Commissioner, Nagpur Division were obtained by the respondents by playing fraud by posing himself as tribal and the same be declared as void and non-est. The plaintiff also sought declaration that he is the owner of the suit property and consequential relief of permanent injunction. The Trial Court rejected the plaint on the ground that the Civil Court has no jurisdiction. The Trial Court relied on Section 10 of the Restoration Act of 1974, and also Section 36C of the Code of 1966.
19. The First Appellate Court confirmed the decree of the Trial Court. The appellant challenged the judgments and decrees of both the Courts below before this Court. Both the counsel on behalf of both the sides argued on the aforesaid substantial questions of law. I have considered their submissions and also perused the documents annexed with the appeal, and the learned counsel for ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 8/19 respondents also placed on record the orders of various forums connected with this suit along with his submissions in writing.
20. At the very outset, with regard to the first substantial question of law, the learned counsel Shri. Khajanchi vehemently submitted that the learned First Appellate Court ought not to have considered the evidence on record while deciding the appeal against the order passed under Order 7 Rule 11(d) of the Code of Civil Procedure (for short "C.P.C."). It cannot be disputed that the plaint is to be rejected on the basis of statements made in the plaint and evidence on record can not be considered. A perusal of the reasoning, recorded by both the Courts below, would prima facie reflects that both the Courts specifically considered the averments made in the plaint for deciding the application for rejection of plaint.
21. Although, para Nos. 16, 17 and 18 in the judgment of the First Appellate Court would reflect some consideration of evidence of the plaintiff by the First Appellate Court, which was recorded for deciding preliminary issue on jurisdiction, however, the ultimate result is not based on that evidence. ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 :::
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22. Secondly, and more importantly, the said evidence is with regard to the facts, which have been pleaded by the plaintiff in his plaint i.e. he belongs to 'Thakur' community, and various orders passed by the various Courts in the chequered history of the litigation between the parties, which are not disputed.
23. While, the Trial Court has only considered the averments made in the plaint for rejection of the plaint, and the same is affirmed by the First Appellate Court. Reasoning in the judgment of the Trial Court is purely and absolutely on the basis of averments made in the plaint. Therefore, in this background and in the specific facts situations of this case, no prejudice is caused to the plaintiff, even if the First Appellate Court discussed some part of the oral evidence, which is nothing but the pleading of the plaintiff while affirming order of rejection of plaint by the Trial Court.
24. With regard to the question of admission of the plaintiff, the learned counsel Shri. Khajanchi harped on the point that the defendants have admitted before the Court in the compromise decree that he is non tribal. Now he has to be estopped from going back to his admission. It is not possible to accept this submission. It is settled law that provisions of law would always ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 10/19 prevail over the feeble admissions by the parties made to achieve some purpose or made in ignorance or under duress. There can be no admission or estoppel against law. If a particular tribe is rated as a Scheduled Tribe in the Schedule to the Constitution of India and the same is also adjudged by the Competent Authority, any contrary admission by the person of that tribe, is of no consequence. Furthermore, since inception, the appellant is claiming himself to be a tribal and the law does not permit him to sell his land to a non- tribal without obtaining permission of the Collector. The parties can not enter into compromise by bypassing the provision of law. The compromise against the provision of law is illegal and void ab initio.
25. Apart from this the Hon'ble Apex Court in the case of Rajasthan Housing Board Vs. New Pink City Nirman Sahakari Samiti Limited reported in (2015) 7 SCC 601, while considering the validity of the transaction, which was in contravention of Section 42 of the Rajasthan tenancy Act, 1955 has held thus :
"26. In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in Section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holding "shall be void". As the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 11/19 such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non-SC/ST, obviously the agreements entered into by the Society with the Khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of Section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under Section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India."
26. The Co-ordinate Bench of this Court in the case of Gautamsheth Kisan Wadve and anr. Vs. Kisan Gangaram Kale and ors. reported in 2020 SCC Online Bom 828 wherein compromise decree between tribal and non-tribal, for transfer of interest in the land before Lok Adalat was held to be illegal as it was against the provision of section 36A of the MLRC, 1966. The relevant para read thus:
"58. By these consent terms the Petitioner has tried to nullify the order dated 31.10.2014 and attempted to validate the transfer without obtaining prior sanction of the Collector and approval of the State Government. Suffice it to say that, neither the Court nor the parties can validate ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 12/19 transfer, which is violative of the mandate under Section 36A MLRC. Authenticating such process, as adopted by the Petitioner, will render the statutory provision nugatory and deflect the course of justice. Hence, the Petitioner cannot be permitted to receive compensation on the strength of the consent terms which are based on a void agreement, opposed to public policy and a nullity. Hence, we cannot put our imprimatur upon the consent terms, which are not lawful and are against public policy."
27. In the case of Lingappa Pochanna Appelwar Vs. State of Maharashtra reported in (1985) 1 SCC 479, the Apex Court has observed that there is always a presumption when there is a transfer between a tribal and a non-tribal that it is an unequal bargain. As regards the weak and the helpless, the law guards them with a special protective care. The Apex Court has further observed that it is axiomatic that a contract is liable to be set aside due to inequality of bargaining power, if someone without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which grossly inadequate when his bargaining power is previously impaired by reason of his own need or circumstances, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other.
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28. As regards the next substantial question of law i.e. whether the plaint is correctly rejected, when the suit for declaration and injunction is within the realm of Civil Courts only. This question is necessarily to be answered in affirmative. It cannot be disputed that the relief of declaration and injunction is within the realm of Civil Courts. However, in the instant case, a perusal of the plaint would reflect that the cause of action for filing the suit is stated to be the withdrawal of S.L.P. No. CC - 4987/2006 before the Hon'ble Apex Court with liberty to approach an appropriate Court.
29. In the plaint, the plaintiff has to plead specifically the cause of action and the date of cause of action in order to show the suit is within limitation. The plaint which does not show cause of action is liable to be rejected.
30. In the instant suit, the date of order of the Hon'ble Apex Court is taken as the starting point of limitation. After failing in almost all the Courts from the level of the Tahsildar to the Hon'ble Apex Court, the appellant is now seeking declaration that all orders, which have been passed in favour of the respondent Nos. 1 to 3, were obtained by playing fraud. Since inception, the appellant is taking the plea of fraud, and now under the guise of ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 14/19 liberty by the Hon'ble Apex Court to approach appropriate forum, filed the present suit, which is hopelessly barred by the law of limitation. The declaratory suits are to be filed within a period of three years from the date of cause of action. It is well settled that any decree or the order of the Court cannot grant or extend period of limitation nor cause of action in filing a suit.
31. The Apex Court in the case of Shiv Kumar Sharma Vs. Santosh Kumari reported in (2007) 8 SCC 600 held that a Civil Court does not grant leave to file another suit. If the law permits, a plaintiff may file another suit but not on the basis of observation made by Superior Court. What cannot be done directly cannot be done indirectly.
32. Furthermore, there are vague pleadings with regard to fraud, cause of action and limitation in the suit, which are the pre-requisites to file any suit, and in the absence of these pleadings, the plaint is, for sure, to be rejected. The Hon'ble Apex Court in the case of Pukhraj D. Jain Vs. G. Gopala Krishna, AIR 2004 SC 3504 has held that Order 6 Rule 4 of the C.P.C. castes an obligation that the particular as to fraud is to be pleaded with necessary specifications and it is mandatory requirement of law. In the instant ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 15/19 case, pleadings with regard to fraud are insufficient so as the enable the defendants to answer it in their written statements.
33. If the appellant has based his suit of declaration on the ground of fraud, it is necessary for the appellant that the suit ought to have been filed within a period of three years from the date of knowledge of fraud. Unfortunately, for around 30 years, the appellant defended the relief of restoration of possession, claimed by the respondents, right up to the Hon'ble Apex Court with his pleadings throughout that the respondents are not tribals, and when he found that he could not succeed in all his attempts, he filed the present suit, which in the considered view of this Court, is hopelessly barred by the law of limitation too. It is also not the case that he prosecuted his remedy before the wrong forum out of his bonafide mistake so as to attract section 14 of the Limitation Act, 1963. The plaint can be rejected at any stage of the suit.
34. The Trial Court rejected the plaint being barred by the provisions of revenue laws. The Trial Court also discussed regarding insufficient pleadings with regard to fraud etc. The Trial Court could also have rejected the plaint on the additional grounds of absence of cause of action and period of limitation.
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35. In 1974, the Restoration Act of 1974 came to be enacted. Simultaneously, some pari materia provisions came to be inserted in chapter III of the Code of 1966.
36. The Restoration Act of 1974 is made applicable to transfer of lands belonging to tribal to non-tribal during the period between 01/04/1957 to 06/07/1974. Its effect is made retrospective in operation, whereas, second proviso to Section 36 of the Code of 1966, which came to be inserted with effect from 06/07/1974, empowered the Collector to restore the land to tribal if he finds that the possession of the occupancy was transferred from the tribal to non-tribal in contravention of the provisions of Section 36 of the Code of 1966. The Collector is also empowered to declare such transfers as invalid. Section 10 of the Restoration Act of 1974 bars Civil Court's jurisdiction. Section 36C of the Code of 1966, which was inserted with effect from 06/07/1974, also bars Civil Courts' jurisdiction. For ready reference, both the provisions are reproduced below :-
"10. Bar of Jurisdiction of Civil Court or authority.
No civil court shall have jurisdiction to settle, decide or deal with any question which under this Act is required to be decided or dealt with by the ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 17/19 Collector, the Commissioner, the Maharashtra Revenue Tribunal or the State Government."
"36C. Bar of Jurisdiction of Civil Court or authority.
(1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under Sections 36, 36A or 36B required to be settled, decided or dealt with by the Collector.
Explanation.- For the purpose of this Section, a Civil Court shall include a Mamlatdar's Court under the Mamlatdar's Court Act, 1906."
37. Even after exhaustion of all remedies before almost all forums, now the appellant is coming with the case that the orders by the Tahsildar and the Sub-Divisional Officer were obtained by the respondents by playing fraud. The Trial Court rightly held that the finding that the deceased Rama was tribal, reached finality, and the Civil Court's jurisdiction is barred as per the aforesaid provisions. Therefore, the appellant's suit is not only to be rejected on the ground of bar under Order 7 Rule 11(d) of the C.P.C., but also for want of pleadings of cause of action, particulars of fraud and limitation.
38. With regard to the next question i.e. what is the effect of existence of consent decree between the parties vis-a-vis the ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 18/19 orders of the Revenue Authorities, the finding that the appellant is a tribal, reached finality. Section 36A of the Code of 1966 put restrictions on transfer of occupancies by tribal to non-tribal. For that purpose permission of the Collector is essential. Section 36A was inserted by way of amendment with effect from 06/07/1974. Section 36A starts with non-obstante clause. As per this provision, after commencement of the Maharashtra Land Revenue Court and Tenancy Laws (Amendment) Act, 1974, the tribal shall not transfer any occupancy in favor on any non-tribal by way of sale including sale in execution of a decree of a Civil Court, etc., except with the previous sanction of the Collector with the previous approval of the State Government.
39. In the instant case, the parties had entered into compromise by posing deceased Rama as non tribal. The object of this agreement is against the provision of law and the public policy. This compromise, which is entered by playing fraud against the provision of law, cannot be held to be legal and valid. It is non-est in the eyes of law. Section 23 of the Indian Contract Act, 1872 (for short "Act of 1872") declares that every agreement of which the object or consideration is unlawful is void. Any agreement which defeats the provision of law is also void. Hence, in the garb of compromise decree, parties cannot take advantage by defeating the ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 ::: SA 166.2020.odt 19/19 mandatory provisions of law. Such compromise decree obtained from the Court is also fraud on the Court. This finding further takes support from the Explanation to Rule 3 of Order 23 of the C.P.C. Explanation states that an agreement or compromise which is void or voidable under the Act of 1872 shall not be deemed to be lawful within the meaning of this rule.
40. Furthermore, Section 36A of the Code of 1966 prohibits transfer of occupancy by tribal to non-tribal including sale in execution of the decree of the Court unless the same is applied by the non-tribal transferee and with the previous sanction of the Collector with the previous approval of the State Government. In such circumstances, I am constrained to hold that the orders of both the Courts below are correct and are in accordance with law.
41. For the reasons aforestated, I answer all the questions accordingly in favour of the respondents. The appeal being devoid of any merits needs to be dismissed and the same is accordingly dismissed. In the circumstances, parties to bear their own costs.
JUDGE Sumit/D.S.Baldwa ::: Uploaded on - 31/12/2020 ::: Downloaded on - 09/02/2021 13:48:43 :::