[Cites 7, Cited by 0]
Orissa High Court
Haladhar Nayak vs State Of Odisha & Ors. ..... Opposite ... on 15 December, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
OJC No.5239 of 1997
Haladhar Nayak ..... Petitioners
Mr. N.P. Parija, Advocate
-versus-
State of Odisha & Ors. ..... Opposite Parties
Mr. P.K. Panda, ASC
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
15.12.2025
Order No.15
1. This matter is taken up through hybrid mode.
2. Heard Mr. N.P. Parija, learned counsel appearing for the
Petitioner and Mr. P.K. Panda, learned Addl. Standing Counsel
appearing for the Opp. Parties. In spite of appearance, nobody is
there on behalf of Opp. Party No. 4. None had also appeared when
the matter was taken up by this Court on 08.12.2025.
3. The present writ petition has been filed inter alia challenging
order dtd.19.12.1996 so passed by Opp. Party No. 2 under
Annexure-2.
4. It is the case of the Petitioner that he belongs to Scheduled Tribe
community and sale deed executed in favour of the deceased Rama
Chandra Mohanta since was so executed without prior permission of
the competent authority, claim of the deceased Opp. Party No. 4 was
rejected by Opp. Party No. 3 vide order dtd.31.08.1995 in
Regulation Appeal Case No. 12/1996 under Annexure-1.
4.1. It is contended that challenging such an order passed by Opp.
Party No. 3, the deceased Opp. Party No. 4 moved the appellate
authority-Opp. Party No. 2 by filing Regulation Appeal Case No.
8/1995. Even though Opp. Party No. 2 came to a finding that the
sale deed has been executed without prior permission of the
competent authority, but on the ground that the deceased Opp. Party
No. 4 is in possession of the case land after its purchase vide sale
deed executed in the year 1964-67, declared his title by way of
adverse possession.
4.2. Learned counsel appearing for the Petitioner vehemently
contended that under the provisions of Regulation 56, there is no
such provision to declare the possession of a non-tribal person by
way of adverse possession. Showing pari materia provision so
contained under Sec. 23(A) of the OLR Act, learned counsel
appearing for the Petitioner relied on a decision of this Court
reported in 2023 (I) ILR-CUT-429. This Court in Para 9 of the said
judgment has held as follows:-
"It is, at this stage of the matter, this Court also
reading through the aforesaid provision finds, the
mechanism through the OLR Act has been created
involving the aforesaid provision to give protection to the
scheduled tribe and scheduled caste persons from being
dislocated from their properties in any manner. It is, at
this stage of the matter, this Court finds, this position has
been examined again and again and finally the Hon'ble
Apex Court in the case of Amarendra Pratap Singh Vrs.
Tej Bahadur Prajapati & Ors. as reported in AIR 2004
SC 3782 has made a threadbare discussion involving a
case of one of the party a non-tribe therein claiming right
through adverse possession for his long possession over
the property. This Court finds, the Hon'ble Apex Court
while keeping in view possibility of right created in favour
of the non-tribe person by way of adverse possession, if
any, taking into account the protection of right of tribes
under paragraph no.7-D of the Regulations read with
Article 65 & Section 27 of the Limitation Act, 1963, has
come to clearly observe that a non-tribal can neither
prescribe nor acquire title by way of adverse possession
over the property belonging to a tribal, as the same is
specifically prohibited by a special law promulgated by
the State Legislature or the Governor in exercise of power
conferred in that regard by the Constitution of India. It is
further held by the Hon'ble Apex Court that a general law
cannot defeat the provision of a Special law to the extent
to which they are in conflict; else an effort has to be made
at reconciling the two provisions by homogenous reading.
The Hon'ble Apex Court has also further held that a
wrongful possession of a non-tribe even involving a sale
transaction has not ripened into acquisition of title by
adverse possession. This Court finds, the judgments of all
the three forums are well covered by the judgment of the
Hon'ble apex Court in the case of Amarendra Pratap
Singh (supra). It is for the application of the decision of
the Hon'ble apex Court to the case at hand, this Court
does not like to relay on the judgments of the Orissa High
Court relied on by the Petitioners. Question No.2 framed
hereinabove is answered against the Petitioners. Further
there also involves a concurrent finding of fact by all the
three forums thereby limiting the scope of interference in
such orders in exercise of power under Article 227 of the
Constitution of India. In the ultimate this Court finds no
scope to interfere in the impugned order."
4.3. Placing reliance on the aforesaid decision, it is contended that
since the sale deed has been executed without prior permission of
the competent authority, the said sale deed is a nullity in the eye of
law and basing on such sale deed, no title flows.
4.4. Even though the original authority-Opp. Party No. 3 and the
appellate authority-Opp. Party No. 2 came to a finding that such a
sale deed has been executed without prior permission of the
competent authority so executed by the deceased Petitioner-
Haladhar Naik, but on the ground that basing on such illegal sale
deed, deceased-Opp. Party No. 4 is in possession of the suit land, his
claim could not have been allowed taking recourse to the provisions
contained under Limitation Act and by declaring his title by way of
adverse possession. It is accordingly contended that the impugned
order passed in Regulation Appeal Case No. 8/95 by Opp. Party No.
2 under Annexure-2 is not sustainable in the eye of law.
5. Since in spite of appearance, nobody is appearing for substituted
Opp. Party No. 4, this Court in absence of the engaged counsel and
considering the submission made by the learned counsel appearing
for the Petitioner, is of the view that since the sale deed executed by
the deceased Petitioner is without prior permission of the competent
authority so required under Regulation 56, Opp. Party No. 3 rightly
rejected the claim of deceased Opp. Party No. 4 vide order under
Annexure-1. It is also the view of this Court that, with the finding
that the sale deed has been executed without prior permission of the
competent authority, title of the deceased Opp. Party No. 4 could not
have been declared by way of adverse possession, which is not
permissible. Revenue authorities while dealing with matter of such
nature are not competent to declare title by way of adverse
possession.
5.1. Placing reliance on the decision as cited (supra) and the fact that
the sale deed has been executed without prior permission of the
competent authority, this Court is inclined to quash order
dtd.19.12.1996 so passed by Opp. Party No. 2 in Regulation Appeal
Case No. 8/1995 under Annexure-2. While quashing the said order,
this Court upheld the order passed under Annexure-1.
6. The writ petition accordingly stands disposed of.
(BIRAJA PRASANNA SATAPATHY)
Judge
Sneha
Location: High Court of Orissa, Cuttack
