Turi Munda vs Pitambar Mahanta And Others .... ...
2025 Latest Caselaw 6575 Ori

Orissa High Court

Turi Munda vs Pitambar Mahanta And Others .... ... on 3 April, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

AFR
          IN THE HIGH COURT OF ORISSA AT CUTTACK
                     W.P.(C) No.16042 of 2005

        Turi Munda                         ....            Petitioner
                                          Mr. N.P. Parija, Advocate


                                  -Versus-

        Pitambar Mahanta and others         .... Opposite Parties
                                             Mr. C.M. Singh, ASC
                           Mr. S.S. Parida, Advocate for O.P. No.1


                 CORAM:
                 JUSTICE R.K. PATTANAIK
                 DATE OF JUDGMENT:03.04.2025

      1.

Instant writ petition is filed by the petitioner challenging the impugned orders under Annexures-1 and 2 passed in connection with Revenue Misc. Case No. 259 of 2000 and Appeal Case No. 25 of 2003 respectively, whereby, learned authorities below declined to restore possession of the case land in her favour though held disposal of the same to be without permission as required under law but for the reason that such possession is more than 30 years old, hence, opposite party Nos.1 and 2 for having acquired adverse title in respect thereof, while dealing with an action initiated as per the provisions of the Odisha Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956 (herein after referred to as 'the Regulations').

2. The case of the petitioner is that she filed Revenue Misc. Case No.259 of 2000 under Regulation 3-A of the Regulations for restoration of the land bearing Plot Nos.508 and 511 with a total area of Ac.1.01 decimal situate under Khata No.80 of village Patabila corresponding to Sabik Khata No.70/67 and Plot No.188/655 with the claim that the father of opposite party Nos.1 and 2 purchased the same through a registered sale deed dated 10th April, 1964 from Nutu Munda, one of the co-sharers along with her father to be without any permission from the concerned authority as they belong to Schedule Tribe and therein, notice was issued and when, opposite party Nos.1 and 2 could not produce any documents, order dated 27th July, 2000 was passed by opposite party No.4 for their eviction from the land in question and such possession was delivered to him on 20th May, 2001 after an order dated 7th July, 2000 during Lok Adalat against which Appeal Case No.47 of 2000 was filed before opposite party No.3, who after hearing the parties remanded the matter back by order dated 22nd September, 2000 and on such remand, with a final order dated 17 th May, 2003 i.e. Annexure-1, it was held that the sale deed dated 10th April, 1964 to be a valid one and at the same time, the other side has perfected title by way of adverse possession and hence, the case land cannot be restored with the eviction and as such, the proceeding was dropped. Being aggrieved by the said order, the petitioner filed Appeal Case No.25 of 2003 and it was disposed of by order dated 25th August, 2004 i.e. Annexure-2.

3. The contention of the petitioner is that the learned authorities below have not considered the fact that there was no partition in the family but Nutu Munda executed the sale deed being one of the co-sharers, hence, to be a void one and thus, cannot confer any title on the vendee and morefully in absence of any such permission being obtained at the time of transfer, the possession of the case land had become unauthorized and for that, opposite party Nos.1 and 2 cannot claim adverse possession in view of the settled law, therefore, the impugned orders under Annexures-1 and 2 suffer from infirmity and not sustainable in the eye of law.

4. On the contrary, opposite party Nos.1 and 2 justified the impugned decision on the ground that the transfer in respect of the case land is in respect of the interest of one of the co- sharers, hence, the sale deed dated 10th April, 1964 is valid to the extent vis-à-vis the share of the vendor. It is contended that the impugned orders under Annexure-1 and 2 do not suffer from any illegality as such possession has been for more than 30 years and the proceeding under Regulation 3-A of the Regulations is barred by law of limitation in view of Regulation 7-D thereof.

5. Heard Mr. Parija, learned counsel for the petitioner and Mr. Parida, learned counsel for opposite party Nos.1&2 and Mr. Singh, learned ASC for the State.

6. Mr. Parija, learned counsel for the petitioner submits that the family of the petitioner is a Scheduled Tribe as per

Constitutional (Scheduled Tribes) Order, 1950. The further contention is that the order of Lok Adalat is not appealable and that apart, the case land being a part of joint interest was sold without the knowledge of other co-sharers and permission from the competent authority and besides that, no interest in favour of opposite party Nos.1 and 2 is created on account of adverse possession with acquisition of title in view of the proposition of the law laid down by the Apex Court in Amrendra Pratap Singh Vrs. Tej Bahadur Prajapati and others (2004) 10 SCC 65 that a non-tribal cannot acquire any such title by being in adverse possession in respect of a land belonging to a Scheduled Tribe, hence, the question of law of limitation does not arise and could not have become a reason for learned authorities below denying restoration of the same. The submission of Mr. Parija, learned counsel is that the impugned order i.e. Annexure-2, though, held the sale deed to be invalid but declined restoration as the possession to be adverse on expiry of 30 years, whereby, opposite party Nos.1 and 2 have perfected title by prescription of law, a conclusion, which in view the above decision, is clearly erroneous and legally untenable.

7. On the other hand, Mr. Parida, learned counsel for opposite party Nos.1&2 would submit that limitation under Regulation 7-D of the Regulations would apply and it provides a time limit for any action for restoration and as such, the possession in respect of the case land is since 1951, though, the sale deed is of the year 1964, hence, the

proceeding is clearly time barred and hence, opposite party No.3 referring to Regulation 7-D of the Regulations rightly refused restoration in favour of the petitioner. In support of such contention, Mr. Parida, learned counsel cited the following decisions, such as, Nekkanti Rama Lakshmi Vrs. State of Karnataka and another (2020) 14 SCC 232, Jagadish Vrs. State of Karnataka and others (2021) 12 SCC 812 and Srikar Bag Vrs. Revenue Officer and others 1993 (II) OLR 95 and furthermore, on the point of locus standi for the petitioner to initiate the proceeding with the contention that the sale deed is not entirely invalid but valid to the extent vis-à-vis interest alienated placed reliance on a decision in Harekrushna Mahakud Vrs. Radhanath Mahakud and others 107 (2009) CLT 720. With reference to the decision in Amrendra Pratap Singh (supra), the contention of Mr. Parida, learned counsel is that the dispute over possession and question connected therewith was remanded for a fresh consideration, though, plea of adverse possession by a non-tribal was held to be impermissible. The further contention is that the petitioner has been left with discretion to take shelter in proper court of law in view of the order under Annexure-2 and as the findings of learned authorities below with regard to possession are in favour of opposite party Nos.1 and 2, in case of any such restoration in favour of the petitioner, it would cause grave injustice to them, when one half of the share of the petitioner is still secured.

8. Regulation 3(2) of the Regulations deals with the provision regarding restoration of possession of such property to the transferor or his heirs, when it is in respect of immovable property alienated by a member of the Scheduled Tribe in favour of a non-tribal in contravention of sub-Section (1) thereof and in such a case, the competent authority, either on an application or information received or suo motu, after an opportunity of being heard with notices issued to the parties concerned, order ejectment against such person in possession and to cause restoration.

9. Mr. Parija, learned counsel for the petitioner relies on a decision in Makunda Nayako Vrs. Suna Omanatya and others Vol.XXXVIII CLT 1213 by contending that the petitioner belongs to the Scheduled Tribe while questioning the legality of the alleged transfer in favour of the father of opposite party Nos.1 and 2. Mr. Parija, learned counsel cited a decision in the case of Lokanath Meher and others Vrs. Panchanan Majhi and others MANU/OR/0072/2016 further contending that such transfer cannot be validated, as in the aforesaid case, the alienation was in contravention of Section 7(b)(i) of Orissa Merged States (Laws) Act, 1950 and hence, held the occupation of the land by the transferees as unauthorized and also declined to accept the plea of having perfected title by way of adverse possession referring to a celebrated judgment of the Privy Council in Secretary of State Vrs. Debendralal Khan AIR 1934 PC 23 as the requirement of law demands the possession to be nec vi nec

clam nec precario. One more decision in Anadi Mohanta and others Vrs. State of Orissa and others 68 (1989) CLT 1 is referred to claiming that transfer by a person belonging to Scheduled Tribe in favour of person, who does not belong to such community is prohibited under law, while referring to the provisions of the OLR Act and in particular, Section 23-A thereof. Mr. Parija, learned counsel also cited a decision of this Court in Rabi Padhan and others Vrs. State of Orissa and others 2023 (I) ILR Cuttack 429, wherein, a non-tribal was held to be not eligible to acquire any title by way of adverse possession over a property belonging to a tribal with a reference to Section 23-A of the OLR Act.

10. In the case at hand, learned authorities below have proceeded on the premise that no permission was obtained at the time of alienation of the case land in favour of the transferee, however, restoration of the same has been denied, as the proceeding initiated under the Regulations is beyond limitation. A permission is required in terms of Section 22 of the OLR Act in case of a transfer of holding or part thereof by a raiyat belonging to the Scheduled Tribe. Regulation 3-A of the Regulations prescribes the action against unauthorized occupation of any immovable property of a member of the Scheduled Tribe by way of trespass or otherwise.

11. From the record, it is made to reveal that by an unregistered agreement of 1951, the possession is claimed by opposite party Nos.1 and 2, which was followed by the sale deed dated 10th April, 1964. The question is, whether any

such action, even when possession is more than 30 years old by the time, the proceeding was initiated under the Regulations, is permissible? For a better appreciation and a decision on the point, the Court is inclined to reproduce the relevant provision, such as, Regulation 3 of the Regulations and the same is extracted herein below:

"3. Transfer of immovable property by a member of the Schedule Tribe-(1) [notwithstanding anything contained in any law for the time being in force any transfer of immovable property by a member of Scheduled Tribe, except by way of mortgage executed in favour of any public financial institution for securing a loan granted by such institution for any agricultural purpose, shall be absolutely null and void and on no force or effect whatsoever, unless such transfer is made in favour of another member of a Scheduled Tribe:

Provided that-

(i) Nothing in this sub-section shall be construed as to permit any member of a Scheduled Tribe or his successors-in-interest to transfer any immovable property which was settled with such member of Scheduled Tribe by or under any authority of the State or the Central Government or under any law for the time being in force;

(ii) in execution of any decree for realization of the mortgage money no property mortgaged as aforesaid shall be sold in favour of any person not being a member of a Scheduled Tribe; and

(iii) a member of as Scheduled Tribe shall not transfer any land if the total extent of his land remaining after the transfer will be reduced to less than two acres in case of irrigated land or five acres in case of unirrigated land."

12. As earlier stated, under Regulation 3-A of the Regulations, the competent authority has the powers to ensure eviction of the persons in unauthorized occupation of property of a Scheduled Tribe. By way of Orissa Regulation 1 of 1975, Regulation 7-D was inserted which is to the following effect:

"7-D. Amendment of the Limitation Act, 1963 in its Application to the Schedule Areas- In the Limitation Act, 1963 in this application to the Scheduled Areas in the Schedule, after the words "twelve years" occurring in the second column against Article 65, the words "twelve years" and figure" but thirty years in relation to immovable property belonging to a member of a Scheduled Tribe specified in respect of the State of Odisha in the Constitution (Scheduled Tribes) order, 1950 as modified from time to time shall be added."

Such amendment was introduced with retrospective effect.

13. While dealing with the question with reference to the expression 'transfer of immovable property' as defined in Regulation 2(f) of the Regulations, it has been held in Amrendra Pratap Singh (supra) that any such transaction dealing with the immovable property which would have the effect of extinction of title, possession or right to possess such property by a tribal at the behest of a non-tribal would be included within the aforesaid meaning and at last, held and concluded that a wrongful possession over the land purchased by a non-tribal can neither prescribe nor acquire title by adverse possession over the property belonging to a tribal as the same is prohibited by a special law promulgated

by the State Legislature and as such, a general law cannot defeat the provisions of such a special law to the extent, to which, both are in conflict; else an effort has to be made at reconciling the provisions by a homogeneous reading, but at the same time, considering the fact that there has been substantial change in the nature of the property involved with huge constructions being made issued directions to the court below to hear the parties and if necessary, by recording additional evidence to determine, whether, demolition of the construction for the purpose of restoration or award of suitable compensation in lieu of restoration of possession would be a more appropriate relief and in the event, an opinion is formed in favour of awarding compensation, the same to be assessed and quantified and such payment shall be a condition precedent for condoning the encroachment and unauthorized construction by the party in possession.

14. To sum up, the submission of Mr. Parija, learned counsel for the petitioner is that in view of the decision in Amrendra Pratap Singh (supra), opposite party Nos.1 and 2 cannot claim title over the case land by being in adverse possession. As earlier discussed, eviction can be initiated in terms of Section 23-A of the OLR Act. As far as Section 7 of Orissa Merged States (Laws) Act, 1950 is concerned, an occupancy tenant is entitled to transfer his holding subject to restriction that any such transfer to a non-aboriginal tribe shall be with the previous permission of the Sub-divisional Officer concerned. It is apt to mention that Section 7(b)(i) of the

Orissa Merged States (Laws) Act, 1950 was repealed under Regulation 9 of the Regulations to the extent indicated. This Court in Anadi Mohanta (supra), while considering the intent and purport of Section 23 of OLR Act held and concluded that transfer in contravention of any other law would normally not come within its purview and Section 23- A was introduced by the Act 44 of 1976 which stipulates, where any person is found to be in unauthorized occupation of a holding belonging to a Scheduled Caste or Scheduled Tribe within any part of the State other than a Scheduled area, the Revenue Officer either suo motu or on an application received, order eviction and shall cause restoration of the same in accordance with Section 23(3) thereof. It is further held therein that Section 7(b) Orissa Merged States (Laws) Act, 1950 was repealed by the Regulations which also imposed a similar restriction in Clause (3) but it was to be applicable to the transfers in respect of the immovable properties situate within the Scheduled areas, which, as stood prior to be amendment by Regulation 1 of 1979, to mean areas specified in the Scheduled Areas (Part A States) Order, 1950 and the district of Keonjhar was not specified therein but by the amended Regulation, the definition included areas specified in respect of the State of Orissa in the Scheduled Areas (States of Bihar, Gujarat, Madhya Pradesh and Orissa) Order, 1977 and followed by a notification for inclusion of the district and therefore, the restrictions on transfer by a member aboriginal tribe to a non-aboriginal tribe which was originally therein in

Orissa Merged States (Laws) Act, 1950 was lifted by repeal upon introduction of the Regulations and during the time, when the transfer took place and as therein, it was in the year 1964, no bar existed in law requiring permission of any authority. In the case at hand, the alleged transfer by a deed of sale is dated 10th April, 1964 and as per the decision in Anadi Mohanta (supra), there was no any interdiction against alienations without the permission of the concerned authority, which prevailed upon the learned authorities below to deny restoration as one of the grounds. But, this Court in Lokanath Meher (supra), since a contrary view was expressed in Srikar Bag (supra), held that the latter decision is to be followed, when the matter was not referred to a Larger Bench. In order to maintain judicial discipline, considering decision in Srikar Bag (supra), it has to be held that in view of the provisions contained in Orissa Merged States (Laws) Act, 1950, any such disposal by an aboriginal tribe of property in favour of a non-aboriginal was to be with the required permission, otherwise, the possession would be unauthorized.

15. On a reading of the scheme of the Act or the Regulations, as the case may be, it is made to understand that any such possession by a non-aboriginal or non-Scheduled Tribe in respect of a property irrespective of the source and means of acquisition shall be held unauthorized and would be subject to eviction and restoration in the manner prescribed therein. No time limit has been stipulated under the Regulations to

recover such possession. By Orissa Regulation 1 of 1975, Regulation 7-D by way of an amendment was introduced and it was enforced with retrospective effect from 2nd October, 1973, whereby, the period of limitation vis-à-vis a suit for possession of immovable property or any interest therein based on title in respect of the Scheduled Areas instead of being twelve years stood substituted by a period of thirty years in the Limitation Act, which would begin to run from a point of time, when the possession of the defendant becomes adverse to the plaintiff. It means that the property can be restored to a Scheduled Tribe as per the Regulations, if the possession is unauthorized for having no sanction of law and at the same time, recovery of such possession with a suit instituted in respect of the property situate within the Scheduled Areas was enhanced to thirty years. In such a suit filed with a defence of adverse possession, the Apex Court in Amrendra Pratap Singh (supra) directed alternate reliefs of either restoration or compensation duly quantified as a condition to condone the alleged encroachment by the defendant therein.

16. In so far as, the petitioner is concerned, she is not the vendor but claims to be one of the co-sharers. From the record, it is made to suggest that the vendor of the father of opposite party Nos.1 and 2 sold half of the interest measuring an area of Ac.1.35 decimals. It is claimed that the entire property was in jointness at the time, when the case land was disposed of by one of the co-sharers, namely, Nutu Munda.

At this distant point of time, the status of the family is not known and could hardly be joint. In fact, the sale is of the year 1964, whereas, the eviction was sought for, interestingly, not by the vendor of the father of opposite party Nos.1 and 2, in 2000 which is after more than thirty years. The reason for the inordinate delay does not appear to have been duly explained by the petitioner. Of course, delay does not defeat the right to recover, when the possession of a property is unauthorized and the law allows such restoration. But, at the same time, long delay may be a ground to deny eviction. In Nekkanti Rama Lakshmi (supra), restitution of land with its resumption as per the provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 after a delay of 25 years was held to be unreasonably long to condone and hence, the order of affirming annulment of transfer in accordance therewith was set aside. In Jagadish (supra), the Apex Court, while considering a similar case of delay of thirty years held and observed that the appellant therein is disentitled to any relief on account of such delay and referring to an earlier decision in Satyan Vrs. Deputy Commissioner & others (2020) 14 SCC 210 held that when there is no limitation prescribed, the jurisdiction must be exercised within a reasonable period of time. In the said decision, delay of thirty years period between the rights accruing and the exercise of rights was taken judicial notice of besides the facts, such as, the infrastructural development of the property in the hands of bonafide purchaser in due course and the intention behind

demanding restoration and ultimately, declined such relief on the ground of inordinate delay. Having discussed the relevant provisions applicable to the case and citations referred to herein before relied upon by learned counsels for the parties, the Court reaches at a conclusion that the transfer of the property in question could be held as without permission of the concerned authority either under the Orissa Merged States (Laws) Act, 1950 or for that matter, the Regulations, nevertheless, it was for the petitioner, if she was really aggrieved on account of the alienation by one of co-sharers in respect of the property in question, to immediately knock the doors of the competent authority for eviction in terms of Regulation 3-A of the Regulations. It is quite unusual to notice that the petitioner woke up out of a deep slumber and for reasons best known to her, demanded restoration of property after 36 years. Admittedly, the action has not been initiated by the authority exercising suo motu powers for causing the restoration. No doubt, in view of the settled position of law elaborately discussed in Amrendra Pratap Singh (supra), a non-tribal cannot be allowed to claim adverse title by prescription on account of possession hostile to the interest of the tribal, who, however, shall have to request restoration as per the Regulations within a reasonable time as inordinate delay may be a ground to deny such relief. In a suit, the Apex Court in Amrendra Pratap Singh (supra) considered such an aspect vis-à-vis claim of adverse title against a tribal and held the same to be impermissible and accordingly, directed for an appropriate relief. In the instant

case, the demand was for recovery and the same is again not by the vendor or his successors but by a co-sharer claiming that by then, the family was joint and had not been separate and that too, after a long lapse of time, which is thirty-six years as on the date of initiation of the action under the Regulations. Considering the entirety of the case and the laws discussed herein before, the Court is of the humble view that the restoration of the property in terms of Regulation 3-A of the Regulations could not have been directed and rightly so vide impugned orders under Annexures-1&2.

17. Hence, it is ordered.

18. In the result, the writ petition stands dismissed for the reasons stated. In the circumstances, however, there is no order as to costs.

(R.K. Pattanaik) Judge Rojina

Designation: Junior Stenographer