Orissa High Court
Atul Chandra Adhikari And Anr. vs State Of Orissa And Ors. on 3 May, 1994
Equivalent citations: AIR1995ORI233, AIR 1995 ORISSA 233, (1994) 2 ORISSA LR 322
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT Pasayat, J.
1. Legality of the orders passed by the authorities exercising power under the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 (hereinafter referred to as the 'Regulation') forms the basis of challenge in this writ application.
2. The facts so far as they are relevant for the purpose of disposal of this case are as follows:
One Surja Gonduni (Opposite Party No. 4) filed an application before the Sub-Divisional Officer, Nowrangpur (in short, 'SDO') alleging that Atul Chandra Adhikari, the petitioner No. 1 had purchased 3.28 acres of land relatable to plot No. 134 under Khata No. 61 of mouza Umerkote, without requisite permission as the transferee Radhika Gonduni, mother of opposite party No. 4 belonged to scheduled tribe. Several documents were filed in support of the stand. Petitioner Atul resisted the claim by taking the plea that he had purchased land from one Smt. Namita Mukherjee vide registered sale deed No. 177/ 67 for a consideration of Rs. 800/ - and got the land mutated in his name. One Itbar Alli had previously purchased the said land from one Lokhumu Gonda. Itbar, who was examined, stated that he purchased the land from Lokhumu through oral sale and cultivated the same for 9 to 10 years, and thereafter sold the land to Namita Mukherjee and prior to his purchase Lokhumu Gonda, the vendor was cultivating the same. Atul Chandra took a positive stand that Lokhumu Gonda had no relationship with Radhika Gonduni, and he did not know whether the land stood in the name of Lokhumu Gonda, who is a Harijan. On consideration of the evidence of the witness examined by the contesting parties, and the documents brought on record the SDO came to hold that the land belonged to Radhika, and petitioner Atul was possessing the same without requisite permission and since the recorded tenant is a scheduled tribe, the possession of petitioner Atul was unauthorised. He, therefore, directed ejectment under Clause 3(a) of the Regulation and also imposed penalty of Rs. 1,000/-. Out of the penalty imposed, a sum of Rs. 500/- was directed to be paid to Surja as compensation. For coming to the conclusion about unauthorised nature of the transaction, the SDO found that though Itbar claimed to have purchased the land and to have cultivated the land in question for a period of 9 to 10 years, he could not explain as to how Lokhumu, who is also a scheduled tribe sold the land belonging to Radhika to him. It was also noticed that plot No. 134 covers an area of 3.28 acres and stood recorded in the name of Radhika. Undisputedly Atul was possessing the land at the time of filing of the petition. The sale deeds produced indicated that the purchase was in respect of plot No. 124 and not in respect of plot No. 134 which was claimed to have been purchased. The order passed by the mutation authority on the basis of Atul's application was taken to be inconsequential because the mutation order related to plot No. 124 of khata No. 82/2. In appea Atul and his brother Atin took the stand that even if the purchase was unauthorised, their possession was to be tagged to the possession of the previous owners, and there was continuous possession adverse to the real owner, for more than 12 years, and the SDO was not justified in restoring the suit land to Surja. The appellate authority referred to evidence of Itbar, who had stated before the SDO that he had purchased the suit land from one Lokhumu Gonda about 25 to 30 years back. With reference to the registered sale deed No. 107/64 it was noticed that Namita Mukherjee was stated to be purchaser of the land in respect of plot No. 124, with an area of Ac. 3.28, under khata No. 70 from Itbar Alli. Atul and his brother Atin had purchased Ac. 3.28 from Sudhir Kumar Mukherjee, the husband of Namita, under plot No. 124 of khata No. 87/2 as per registered sale deed No. 177/67. Mutation was accorded in respect of said purchases. With reference to the order passed in Mutation Case No, 183 of 1971, it was observed that though Radhika Gonduni was alive and was the recorded tenant of plot No. 134 of khata No. 61, it was recorded in the order-sheet dated 28-11-1972 of said mutation case that she was dead having none to succeed her and accordingly orders allowing mutation in favour of petitioners were passed. The order was out come of non-application of mind and was passed without proper field enquiry. The plea of adverse possession raised by the petitioners was also disallowed.
3. The conclusions of the forums below are assailed in this writ application. Additionally it is submitted that after marriage, Surja had become a person belonging to non-scheduled tribe and therefore, the authorities were not justified in maintaining the petition by her. Learned counsel for petitioners has submitted that the authorities have not properly construed the case regarding adverse possession; the conclusions regarding irregularity in the mutation proceeding are not legally sound; the possession of the petitioners was to be tagged to the possession of the previous title holders Clause 7-D of the Regulation which was introduced subsequently enlarged the period of limitation from 12 years to 30 years as is evident from the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Miscellaneous Provisions Regulation, 1976. Clause 7-D operated with retrospective effect from 2-10-1973 by this regulation. Those cases where title was perfected by adverse possession, earlier to that date were not affected by enlargement of the period of limitation. Possession of Itbar and Namita should have been taken note of, and by the time the application was presented and even by 2-10-1973, 12 years had elapsed. Therefore, the conclusions of the forums below are not legally tenable. The learned counsel for Slate urged that Surja could maintain the application. Reference is made in this context to Sub-clause (2) of clause 3 of the Regulation. According to him, on evaluation of materials on record, authorities have rightly discarded plea of adverse possession.
4. We shall first deal with the plea relating to adverse possession. Clause 7-D is relevant for the purpose. It was introduced by Orissa Regulation of 1975. Clause 7-D was made retrospectively operative with effect from 2-10-1973 as indicated above. The said clause reads as follows:
"7-D. Amendment of the Limitation Act, 1963 in its application to the Scheduled Areas.--
In the Limitation Act, 1963 in its application to the Scheduled Areas in the Schedule, after the words 'twelve years' occurring in the second column against Article 65, the words, brackets 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 Orissa in the Constitution (Scheduled Tribes) Order, 1950' as modified from time to time shall be added."
If the title of the land stood extinguished at a point of time twelve years anterior to 2-10-1973, notwithstanding insertion of Clause 7-D with retrospective effect, the period of 30 years cannot apply to such a case. This position has been stated by this Court in Madhia Nayak v. Arjuna Pradhan, (1988) 65 CLT 360: Bhagaban Jena v. Shibu Majhji, 72 (1991) CLT 708; Laxmi Gauda v. Dandasi Goura (deceased by L.R.), AIR 1992 Orissa 5; and Srikar Bag v. Revenue Officer, Titilagarh, 1993 2 CLR 95. A person who takes the plea of adverse possession has to establish it.
Adverse possession postulates a hostile possession which carries a notorious disavowal of the true owners title and constitutes an invasion of that title. Adverse possession means possession, which is adverse, i.e., possession of a land or an interest in land by a wrong man against the will of the right man, who is the owner of the land or an interest in that land. Adverse possession, to succeed, must be one nee per vim clam, nee precario. In other words, such possession, to be adverse must be adequate in continuity, in publicity and in extent to show that the possession was adverse to the competitors. Adverse possession designates a possession in opposition to the true title and the real owner, and implies that it commended in wrong and is maintained against right. (See Alaxander v. Polk, 39 Mississippi Reports 755). In order to adversely possess the suit land, it must be shown that the possession was open, hostile and exclusive. The burden of. proving that possession of the suit land adverse and for the statutory period lies heavily on the claimant. A party who sets up a claim of title by adverse possession, has to affirmatively prove his or her possession over the statutory period, and presumptions and probabilities cannot be substituted for evidence. The plea of adverse possession is not always a legal plea. It is always based on facts which must be asserted, pleaded and proved.
5. The evidence led by the petitioners in support of their plea is inadequate to establish it. They have failed to substantiate the plea by cogent evidence. Even if Itbar's evidence that he was in exclusive possession is accepted, he has not led any evidence to establish his purchase from Lokhumu Gonda about 25 to 30 years through oral sale. It has not been explained as to how the said Lokhumu Gonda sold the land which belonged to Radhika Gonduni. The question whether the extended period of 30 years is inapplicable to the facts of the case, and period of 12 years was applicable, is really academic, because plea of adverse possession has not been established by the petitioners.
6. We shall now examine the plea relating to locus standi of Surja to maintain the application. It is trite law that a lady belonging to scheduled tribe on her marriage to a person belonging to non-scheduled tribe, shall be treated to be a person belonging to non-scheduled tribe after such marriage. The apex court in Nirmal Enam Hore v. Smt. Jahan Ara Jainal Singh, AIR 1973 SC 1406 has observed that a married woman takes the domicile of her husband. But that hardly affects the validity of the proceeding in the case at hand an/or is of consequence. Sub-Clause (2) of Clause 3 provides that, where a transfer of immovable property is made in contravention of Sub-clause (1) of the said clause, the competent authority may either on application by any one interested therein are on his own motion and after giving the parties an opportunity of being heard order ejectment against any person in possession of the property claiming under the transfer and shall cause restoration. Even if Surja had ceased to be a person belonging to scheduled tribe. It cannot be said that she had lost interest in the property, since the property belonged to her mother. In any event, the competent authority could have initiated the proceeding suo motu. The question of locus standi has very little significance in an application of this nature.
The writ application is devoid of any merit and is dismissed. No cost.