1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 436 OF 1998 Jagannath Ganpat Rokade, Age : 55 Years, Occu. : Agril., R/o Sankrapur, Post. Ambi, Tq. Rahuri, Dist. Ahmednagar .. Appellant (Orig. Pltff. Resp. No. 1) Versus 1. Smt. Kaushalyabai Ramdas Mali Died through L.R.'s 1/A Gokuldas Ramdas Mali, Age : 25 Years, Occu. : Agril., 1/B Sou. Sakharabai Bhimraj Pawar, Age : 35 Years, Occu. : Household 1/C Sou. Sugandhabai Bhausaheb Aher, Age : 32 Years, Occu. : Household, 1/D Sou. Lata Chandrabhan Wagh, Age : 31 Years, Occu. : Household, Res. No. 1/B to 1/D all are resident of Gallimb, Tq. Shrirampur, District Ahmednagar. 1/E Sou. Alka Vasant Borde, Age : 29 Years, Occu. : Househld, R/o Rahuri, Tq. Shrirampur, District Ahmednagar. 1/F Sou Anjana Sanjay Barde, Age : 28 Years, Occu. Household, R/o Battyabad, Tq. Shrirampur. 2 1/G Sangita Ramdas Mali, Age : 19 Years, Occu. : Household, R/o Galnimb, Tq. Shrirampur, District Ahmednagar. 2. The State of Maharashtra, Through Collector, Ahmednagar. 3. The Tahsildar, Tahsil Office, Rahuri, Dist. Ahmednagar. 4. Smt. Latikabai Shrawan Palande, Age : Major, Occu. Household, 5. Sau. Kusum Vasant Pawar, Age : Major, Occu. : Household, Resp. No. 4 and 5 R/o Galnimb, Tq. Shrirampur, Dist. Ahmedngar. .. Respondents (Orig. Deft. No. 3 Appellant and Orig. Defts. No. 1, 2, 4 and 5 orig. Resp. Nos. 2 to 5.) Shri L. B. Pallod, Advocate for the Appellant. Shri V. D. Hon, Advocate for the Respondent No. 1. Shri B. V. Wagh, A.G.P. for the Respondent No. 2 and 3. CORAM : N. D. DESHPANDE, J. DATE : 03RD NOVEMBER, 2009. ORAL ORDER : 1. Heard Shri Pallod, the learned counsel for the appellant and Shri V. D. Hon, the learned counsel for the respondent No. 1 at the 3 stage of admission of second appeal No. 436/1998. Almost all the facts and the nature of the dispute are admitted between the parties except present possession of the land in question. The appellant who is original plaintiff claims to be in factual possession of the land in question, while rival contention of the respondent No. 1 is that they are in factual possession of the land in question. The dispute has a background and checkered history which is also covered by the provisions of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. Admittedly, the contest is between non-tribal transferee and tribal transferor who are plaintiff and defendant respectively, in civil suit bearing Regular Civil Suit No. 695/1989. The said suit came to be filed by the appellant for declaration, so also for perpetual injunction to protect his possession after the transfer from the defendant tribal transferee which was effected on or about 1981. The bone of contention of plaintiff in the suit was that, the alleged transfer is not covered by Section 2(1)(i) of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 of transfer which is during the period of 01st day of April 1957 and ending on the 6th day of July 1974. As such, the order of restoration of land in question to the transferee tribal who are the respondent passed by the Tahsildar came to be challenged by the plaintiff before the Maharashtra Revenue Tribunal on the same ground. The challenge was first in time before the Maharashtra Revenue Tribunal and the plaintiff then opted Civil Court as forum and further challenged the same order of transfer and also for additional relief of perpetual injunction on the basis of his settled possession after transfer, which he still continues with. No doubt, the relief of 4 perpetual injunction is consequential relief to protect the possession. 2. As stated above, the civil suit bearing Regular Civil Suit No. 695/1989 was decreed in favour of the appellant, but said judgment and decree was set aside by the first appellate Court in an appeal bearing Regular Civil Appeal No. 451/1992 which was challenged by the defendant/respondents. The said judgment and order passed in the Regular Civil Suit bearing No. 695/1989 is set aside by the Additional District Judge, Ahmednagar, which was for declaration and injunction. The same is impugned before this Court in second appeal for admission. 3. Shri Hon, the learned counsel for the respondent No. 1/original defendant pointed out Section 10 of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, referring to the bar of jurisdiction of Civil Court. The Section 10 of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 is reproduced below : "10. 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 Collector, the Commissioner, the Maharashtra Revenue Tribunal or the State Government." According to Shri Hon, he challenged the judgment and decree of the Trial Court before the Appellate Court, as he was forced to do so 5 and not he opted Civil Court as a forum to challenge any order passed under The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974. The order of Tahsildar in respect of restoration of land in his favour as a Tribal transferee is still in force as a stay is operating. There is stay of this Court operating against the order of Maharashtra Revenue Tribunal in Writ petition pending. As such he is entitled to take all benefits of order of restoration of the land and possession of the same pursuant to the impugned order of restoration to the Tribal transferee. Thus it is seen that, the appellant/plaintiff firstly opted Maharashtra Revenue Tribunal to challenge the order of restoration passed by Tahsildar and succeeded to get a relief which he was also claiming before the Civil Court in a suit bearing R.C.S. No. 695/1989. The subsequent suit was mainly for the relief of declaration that, the order of Tahsildar of restoration was illegal and bad in law and without jurisdiction. 4. It is settled position in law that party cannot "approbate and reprobate". Admittedly, plaintiff/appellant has challenged the order of restoration passed by the Tahsildar before the Maharashtra Revenue Tribunal at the earliest point of time and it can easily be inferred that, it is with regard to the provisions of Section 10 of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, and, therefore, only for the sake of injunction simplicitor he is not allowed. In my opinion, only because he was claiming injunction his subsequent suit bearing R.C.S. No. 695/1989 would not be maintainable. Moreover, there is specific bar under Section 10 of jurisdiction i. e. Section 10 of The Maharashtra Restoration of Lands 6 to Scheduled Tribes Act, 1974. Such bar to settle and decide with any such question for jurisdiction even continues at every such forum, including the appeals from the order of the Civil Court of original jurisdiction. 5. It is also informed that a writ petition is admitted and stay is operating against the order passed by the Maharashtra Revenue Tribunal. Thus it is seen that, the appellant's case is clearly covered by Section 10 of The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974, even before this Court while hearing the second appeal at admission stage. As such, the appeal stands summarily dismissed on the point of jurisdiction and accordingly disposed of after hearing both the sides. [ N. D. DESHPANDE, J.] bsb/Nov. 09