ANANDA LALCHAND MALCHE Vs. UMAKANT KASHINATH DESHMUKH

JUDGEMENT

(1.) Heard learned counsel for the respective parties.

(2.) Challenge in these civil revision applications is to the common order dated 09.06.2017 by which, the learned trial Judge has dismissed the revision applicants' applications seeking rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure.

(3.) Learned counsel for applicants submit that in this case, there is no dispute and further, the pleadings indicate that the defendant no. 1 is a tribal. They submit that in the plaint, seeking decree of specific performance, there is a clear averment that plaintiff, in pursuance of agreement dated 16.08.2008, entered into between plaintiff and defendant no. 1, claims to have put in possession of the land in question. Learned counsel further submit that under section 36 of the Maharashtra Land Revenue Code, there is a clear bar for transfer of land by a tribal to a non- tribal without obtaining prior permission of the Collector. It is submitted that it is stated in the plaint that plaintiff has been put in possession of the land in pursuance of the agreement dated 16.08.2008 and such transaction is clearly null and void. They relied upon decisions in the case of Raoji s/o Baliram Urkude Vs. State of Maharashtra and another, 1985(2) Bom.C.R. 563 and Atul Projects India Ltd. Vs. Babu Dewoo Farle and others, 2012(4) Bom.C.R. 272 in support of their contention that the transaction, on the basis of which, the suit has been filed is null and void. Learned counsel further submit that in case, there was no averment that plaintiff is in possession of the land then, perhaps, the suit might have been maintainable because, there are decisions which state that even in such matters, specific performance can always be granted and only execution will have to be deferred until permission of the Collector is obtained. They submit that in this case, since the plaintiff claims to have already put in possession, the suit is not maintainable. They submit that under section 10 of the Maharashtra Restoration of Land to Scheduled Tribe Act, 1974, the suit of such a nature is barred. They further submit that in terms of section 36C of the Maharashtra Land Revenue Code, 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. They submit that in this case, prior permission to sell the land by tribal to non-tribal as contemplated under section 36A of the Maharashtra Land Revenue Code is obtained and therefore, bar under section 36C will apply. They rely on decision of the Hon'ble Supreme Court in the case of Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust, 2012(8) SCC 706 to submit that illusion of cause of action cannot be created by clever drafting and further, if the suit is barred under any law, the plaint can always be rejected under Order 7 Rule 11 of the Code of Civil Procedure. For all these reasons, they submit that these revision applications are liable to be allowed and the plaint in the suit may be rejected.