1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4068 OF 1991. 1. Narayan s/o Lalsing Bhill, age major, occu. Agril. & Labour, r/o Ladgaon, Tq. Amalner, Dist. Jalgaon. 2. Pundlik s/o Lalsing Bhill, age major, occu. Agril. & Labour, r/o as above. .. PETITIONERS. ( Ori. Respondents) VERSUS 1. Dashrath s/o Zipru Koli, since deceased, through L.Rs. 1a) Shantabai w/o Dashrath Koli, age about 52 years, 1b) Bhatabai d/o Dashrath Koli, age about 30 years, 1c) Suresh s/o Dashrath Koli, age about 35 years, 1d) Rajendra s/o Dashrath Koli, age 18 years, 1e) Chotu s/o Dashrath Koli, age 15 years, minor u/g of his real mother Shantabai w/o Dashrath Koli, All are r/o village Ranjane, Post Dhav, Tal. Amalner, Dist. Jalgaon. 2. Smt. Parvatabai w/o Sitaram Shimpi, through her power of attorney Shankar s/o Sitaram Shimpi, r/o Vadi Chowk, Amalner, Dist. Jalgaon. 2 3. The Tahsildar, Tq. Amalner, Dist. Jalgaon. 4. Maharashtra Revenue Tribunal, 2nd Floor, Old Sachivalaya, Extension House, Bombay – 32. 5. The State of Maharashtra. .. RESPONDENTS. (R.Nos.1 & 2 – oril appellants) ... Shri V.E. Baviskar, Advocate for Petitioners (absent). Shri Sanket Kulkarni, Advocate holding for Shri S.D. Kulkarni, Advocate for R.No.2. Shri Pradeep Deshmukh, Advocate for R.Nos.1a to 1e. Smt. V.A. Shinde, A.G.P. for State. ... CORAM : S.S. SHINDE,J. 16th NOVEMBER, 2010. ORAL JUDGMENT: 1. This writ petition takes exception to the judgment and order dated 6th July, 1990 passed by the Member, Maharashtra Revenue Tribunal at Bombay in Revision Tribe No.10/1989. 2. The background facts of the case are as under: The suit land was originally belonging to 3 the present petitioners – respondents before the Maharashtra Revenue Tribunal. The petitioners had executed sale deed on 24.11.1954 in favour of the father of the present respondent No.1 - appellant No.1 before Maharashtra Revenue Tribunal and mutation entry to that effect has been effected in the mutation register. The petitioners contended that the said sale deed was fraudulently obtained by the father of the respondent No.1 though it was in the nature of mortgage. After coming into operation of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (for short, referred to as “the Restoration Act”), the petitioners made representation to the Minister of Revenue Department and also Social Welfare Department of the State of Maharashtra, praying that suit land be restored to them under the provisions of the Restoration Act. The said representation was made on 28.8.1982. The petitioners had also sent application to the 4 Collector in the year, 1976. The Tahsildar after receipt of the representation held an inquiry and after recording the statements of the parties, came to the conclusion that the transaction dated 24.11.1954 was hit by the provisions of the Restoration Act and though the suit land has been allocated to the appellant no.2 therein under the provisions of the Bombay Prevention of fragmentation and Consolidation of Holdings Act, the appellant No.2 – respondent No.2 herein, being the successor-in-title of the father of the respondent No.1, the suit land be restored to the petitioners herein under the provisions of the Restoration Act. Aggrieved by the said order, the present respondents preferred appeal u/s 6 of the Restoration Act. 3. The present petitioners submitted written statement and contended that the transaction dated 24.11.1954 was in fact, a mortgage transaction and that the father of the present 5 respondent No.1 got it executed fraudulently in the nature of sale deed in his name. It is also pointed out that the respondent No.3 therein strongly objected to the mutation entry No.435 and after amicable settlement in the year, 1960, the land was sold to the father of the appellant No.1 in the year, 1960. After implementation of Consolidation scheme, the suit land was included in Gut No. 95 of appellant No.2. The respondents – petitioners prayed for restoration of the land and in support of their caste claim, they produced caste certificate. The respondents / petitioners ultimately, prayed for dismissal of the appeal of the appellants. 4. When the matter is called out, none appears for the petitioners. The learned Counsel for the respondents 1 and 2 invited my attention to the findings recorded by the Maharashtra Revenue Tribunal. The learned Counsel for respondents, relying on para 5 of 6 the judgment of the tribunal, contended that since the sale deed was executed by the petitioners herein on 24.11.1954 in favour of the respondents 1 and 2, the provisions of the Restoration Act would not apply to the present case. He further submitted that the provisions of the Restoration Act are applicable only to the transactions of transfer of lands by a tribal in favour of non-tribal during the period from 1st April, 1957 to 6th July, 1974. He further submitted that since the sale deed was executed in the year, 1954, there is no question of applying the provisions of the Restoration Act to the present case. The Counsel further submitted that though it was asserted by the petitioners before the Maharashtra Revenue Tribunal that the sale deed which was executed in the year, 1954 has been executed fraudulently by the father of the respondents 1 and 2, no any document or evidence was produced on record to support the said contention of the petitioners. 7 Therefore, the learned Counsel for the respondents submits that possible view has been taken by the Maharashtra Revenue Tribunal, and no interference is called for. 5. I have heard the learned Counsel for the respondents as also the learned A.G.P. for State, and perused the judgment of the tribunal as well as the Tahsildar and other documents placed on record. The Maharashtra Revenue Tribunal, in paragraph 5, has considered the definition of “transfer” given in section 2(1) of the Restoration Act and held that since the sale deed was executed in favour of father of the appellant No.1 on 24.11.1954, the transaction is not covered under the definition of “transfer” given under the Restoration Act. The tribunal has also observed that though the respondents i.e. present petitioners have asserted that the said transaction was in the nature of mortgage and that the father of appellant no.1 had 8 fraudulently got it executed as sale deed, no evidence on record was produced, except bare words of the respondents, and therefore, the submission of the respondents cannot be accepted. The Maharashtra Revenue Tribunal has held that the transaction pertaining to the suit property is not covered by the provisions of the Restoration Act. The tribunal has concluded that the sale deed was dated 24.11.1954. 6. Considering the submissions of the respondents and perusal of the material on record including the judgment and order of the Maharashtra Revenue Tribunal, in my opinion, the petition is devoid of any merits. It is not in dispute that the sale deed was executed on 24.11.1954. The dispute, which is raised by the petitioners herein before the Maharashtra Revenue Tribunal was that the father of the appellant no.1 – respondent No.1 herein, had got the sale deed executed 9 fraudulently, was not supported by any evidence. Therefore, once this position is accepted that the sale deed was executed on 24.11.1954 by the petitioners in favour of the father of the respondent No.1, the transfer of the suit property would fall beyond the scope of the provisions of the Restoration Act. 7. Therefore, the writ petition is devoid of any merits and the same stands dismissed. Interim relief stands vacated. Rule stands discharged with no order as to costs. [ S.S. SHINDE ] JUDGE. ... PLK/* 10 WRIT PETITION NO.4068 OF 1991. 16th NOVEMBER, 2010. For approval and signature. THE HONOURABLE SHRI JUSTICE S.S. SHINDE. 1. Whether Reporters of Local Papers } may be allowed to see the judgment? } Yes. 2. To be referred to the Reporter or not? } No 3. Whether Their Lordships wish to see the fair copy of the judgment? } No. 4. Whether this case involves a substantial } question of law as to the interpretation } of the Constitution of India, 1950 or } any Order made thereunder? } No. 5. Whether it is to be circulated to the } Civil Judges? } No. 6. Whether the case involves an important } question of law and whether a copy of } the judgment should be sent to Mumbai, } Nagpur and Panaji offices? } No. [Prakash Kadam] Private Secretary to the Honourable Judge.