1 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.10662 of 2009 Chandrabham Sakharam Ugale & Anr. ..Petitioners Vs. Smt. Geetabai w/o, Suka Charoskar ..Respondents Shri M.S.Karnik for the Petitioners Mr. M.M.Sathaye for Respondents CORAM : SMT.ROSHAN DALVI, J. DATED : 14th January, 2010 P.C. : 1.The Petitioner has challenged the order of the Additional Tahsildar dated 23.03.2005 and the order of the Maharashtra Revenue Tribunal, Mumbai, in Appeal therefrom dated 06.04.2009, in this Petition. The Petitioner is the transferee of the Respondent under the registered Deed of Sale executed by the parties on 10.04.1974. The Petitioner, as the purchaser, was put in possession. The Respondent applied for restoration of the possession of the land transferred to the Petitioner as a tribal under the Maharashtra Restoration of Land to Schedule Tribe Act 1974. The proceedings were filed before the Additional Tahsildar, Nashik. The Additional Tahsildar has passed an order restoring the land transferred from the Petitioner to the Respondent. The Additional Tahsildar has 2 considered interalia, that the Petitioner admitted that the Respondent was a tribal in his evidence. The evidence of the Petitioner shows that the Respondent is Mahadeo Koli. Hence the Petitioner has not only admitted the Respondent s status of the tribal but also specifically deposed about the tribe that she belong to. The Additional Tahsildar also considered that the Collector s sanction under section 36(2) was not taken for the transfer. The Additional Tahsildar verified its record. The record would interalia have the records of rights. 2.The Petitioner states that he challenged that order in Revision before the Maharashtra Revenue Tribunal. That order is not shown to have been set aside. That order attained finality since 19.12.1975. 3.The Petitioner has also filed Special Civil Application No.285 of 1976. That application has been withdrawn. That order has been shown by the Respondent. 4.Consequently, it is seen, that the land of the tribal, was transferred, without the permission of the Collector, was restored to the tribal. The Respondent s husband was a transferor and the land was restored to her husband. He expired on 19.06.1988. 3 5.Upon the case, that the Petitioner took forcible possession of the land from the Respondent, after the death of her husband, the Respondent filed another application for restoration. That was on the cause of action that has accrued to her upon forcible possession being taken. The Application at Exhibit B to the Petition shows this fact. The Additional Tahsildar passed an order restoring possession. 6.It is contended by the Petitioner that, if the restoration was ordered earlier, the Respondent was barred by principles of resjudicata from re-applying for restoration in respect of the same land from the said transferee. However, in view of her contention, that the land was forcibly taken thereafter, her case is not barred by the principles of resjudicata. It may be mentioned that, if she filed restoration application wrongfully for the 2nd time, the initial restoration ordered on 19.12.1975 and not set aside by any authority, would revert. She would, therefore, be continued in possession. The fact that she was not in possession and it is admitted that the Petitioner had possession, which has been directed to be restored to her, shows a fresh act of dispossession, giving her a fresh right to apply for restoration of possession. The essence of the situation between the parties is the factum of possession itself. If, after restoration in 4 1975, the Respondent does not have possession or the Petitioner has possession, that possession would be unlawful and contrary to the provisions of the aforesaid Act. Hence the order of the Additional Tahsildar is seen to be correct. The dismissal of the Appeal by Maharashtra Revenue Tribunal is also, therefore, seen to be correct. In fact, I am shown by the Advocate for the Respondent that in the impugned order the Maharashtra Revenue Tribunal has considered the 7/12 extract of the land showing the land claimed by the Petitioner as the land of the tribal. It would be that document which interalia would have been verified from the record by the Tahsildar in the initial application also. 7.The possession claimed by the Petitioner is, therefore, unlawful possession. 8.The Writ Petition is dismissed. 9.The status-quo initially granted on 24.12.2009 and continued on 08.01.2010 shall continue for further four weeks from today. (SMT.ROSHAN DALVI, J.)