Bombay High Court
Sudhakar Wamanrao Hingankar And Others vs Vasantrao Gulabrao Thakre (Dead) Thr. ... on 4 February, 2019
Author: Manish Pitale
Bench: Manish Pitale
1 cao 76.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Civil Application (O) No.76 of 2019
In
Misc. Civil Application (Review ) No.17754 of 2018
In
Second Appeal No.582 of 2006 (D)
(Sudhakar Hingankar and others V Vasantrao Thakre and others)
-------------------------------------------------------------------------------------------------------------
Office Notes, Office Memoranda of Court's or Judges Order.
Coram, appearances, Court's Orders
or directions and Registrar's orders.
Mr. Anand Deshpande, Counsel for applicants.
Coram : Manish Pitale, J.
Dated : 04th February, 2019.
Heard.
2. This is an application filed on behalf of original respondents (applicants herein), seeking condonation of delay of 61 days in filing the accompanying Review Application.
3. For the reasons stated in the application, the same is allowed and the delay is condoned.
4. Civil Application is disposed of.
Misc. Civil Application (Review ) No.17754 of 2018 The ground for review raised in the present Review Application is, that while allowing the Second Appeal and answering the substantial questions of law in favour of the non-applicants herein, there occurred error apparent on the face of the record, because certain specific pleading raised on behalf of the applicants herein was not taken ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 00:54:04 ::: 2 cao 76.19.odt into consideration by this Court and the Courts below while holding in favour of the non-applicants.
2. In this regard, the learned Counsel appearing for the applicants invited attention of this Court to a pleading in the plaint at page 44 of the Second Appeal Paper Book, wherein it was specifically pleaded that the applicants (original defendant nos. 2 to 4) belonged to 'Nath Jogi' community, which was a Nomadic Tribe and that by operation of law, the Sale Deeds executed in the present case were rendered void. It was pointed out that although no specific evidence was led on this pleading, the trial Court referred to the said contention, yet no findings were rendered on the same. The First Appellate Court did not even refer to the said aspect of the matter and it could not be brought to the notice of this Court when the Second Appeal was disposed of.
3. Relying on the said pleading specifically made in the plaint, the learned Counsel appearing for the applicants submitted that under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 [for short, 'Act of 1974'] and the Maharashtra Land Revenue Code, 1966, the Sale Deeds in question, in the present case, were rendered void, because there was a clear mandate of the said statutes prohibiting alienation of lands belonging to tribals to non-tribals and in case of such transfers, the tribals were entitled to restoration of such lands.
4. A perusal of Section 2(j) of the Act of 1974, shows that "Tribal" means a person belonging to a Schedule Tribe within the meaning of the ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 00:54:04 ::: 3 cao 76.19.odt Explanation to Section 36 of the Code, and includes his successor-in- interests. The aforesaid Explanation in Section 36 of the Code, reads as follows :-
"Explanation.- For the purposes of this Section, "Scheduled Tribes" means such tribes or tribal communities or parts of, or groups within, such tribes or tribal communities as are deemed to be scheduled Tribes in relation to the State of Maharashtra under Article 342 of the Constitution of India [and persons, which belong to the tribes or tribal communicates, or parts of, or groups within tribes or tribal communities specified in Part VIIA of the Schedule to the order [made under] the said Article 342, but who are not residents in the localities specified in that order who nevertheless need the protection of this Section and Section 36A (and it is hereby declared that they do need such protection) shall, for the purposes of those Sections be treated in the same manner as members of the Scheduled Tribes]."
5. Thus, it becomes abundantly clear that for the application of the said statute and the relevant provisions of the Code, the tribe in question has to be a Scheduled Tribe as recognized under Article 342 of the Constitution of India, 1950, in respect of the State of Maharashtra. In the present case, admittedly, even the pleading in the plaint states that the applicants (original defendants) belong to "Nath Jogi' community, which is a Nomadic Tribe. Admittedly, there was no evidence led in respect of the said pleading. Even, if it is presumed that the said claim of the applicants was found to be true, they would still be persons belonging to Nomadic Tribe and therefore, not covered in the definition of "tribal"
::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 00:54:04 :::4 cao 76.19.odt under Section 2(j) of the Act of 1974. Therefore, there is no substance in the said ground raised in the Review Application.
6. As there is no error apparent on the face of the record pointed out in the Review Application, the same is found to be without any merit and it is, accordingly, dismissed.
JUDGE Deshmukh ::: Uploaded on - 05/02/2019 ::: Downloaded on - 06/02/2019 00:54:04 :::