Maheswar Barik vs Maheswar Naik

B.K. Nayak, J.—Orders passed by the original & Appellate authorities, viz. the Tahasildar, Ghatagaon & Sub-Collector, Keonjhar respectively vide Annexures-5 & 10, directing for restoration of the disputed land in favour of Opp. Party No. 1, Maheswar Naik have been assailed in this writ application. Opp. Party No. 1 filed application purportedly u/s 23 of the OLR Act for eviction of Maheswar Barik, Writ Petitioner (since dead) from the case land & restoration of the same in his favour, on the ground that he is a Scheduled Tribe person & the land has been recorded in his name, & that the Writ Petitioner, a non-Scheduled Tribe person has been in unauthorised possession of the land. The application was registered as Case No. 1 of 1993 in the Court of Tahasildar, Ghatagaon, District-Keonjhar since District-Keonjhar is a Scheduled Area & the Orissa Scheduled Areas Transfer of Moveable Properties (by Scheduled Tribes) Regulation 1956 (in short "Regulation-2 of 1956") came into force in the Sub-Division of Keonjhar w.e.f. 12.6.1979, the proceeding was treated to be one under Regulation-3 of the Regulation-2 of 1956. The Writ Petitioner appeared before the Tahasildar, & contended that the father & uncle of Opp. Party No. 1 were the original owners & they sold the case land in favour of the Petitioner orally for a consideration of Rs. 95 about 53 years back i.e. in 1940 & since then, the Petitioner has been continuing in possession & has constructed a house there, where he is staying.

It transpires that during the Hal settlement operation the land in question has been recorded in the name of the father of Opp. Party No. 1 & his co-sharers with note of possession in favour of the Petitioner. Opp. Party No. 1 himself has admitted before the Tahasildar, that the Petitioner is in possession of the case land since 10 to 12 years.

The Tahasildar, by the impugned order allowed restoration in favour of Opp. Party No. 1 merely holding that the Petitioner has not taken any step for getting said land recorded in his name either in Civil Court or in the Court of Board of Revenue, Orissa, after final publication of the Hal ROR on 28.8.1982, & therefore, his possession must be held to be forcible.

The Petitioner challenged the order of the Tahasildar before the Sub-Collector, Keonjhar in Regulation Appeal Case No. 1/93. The said appeal was dismissed by Order Dated 11.11.1994.

Learned Counsel for the Petitioner submits that findings of the Appellate authority that the Petitioner has not adduced any evidence either documentary or oral regarding his possession since 1940 in the lower Court is not correct because the Yadast of the year, 1965 produced before the Appellate authority & also the report of the R.I. coupled with Petitioner''s oral evidence prove the possession of the Petitioner since 1940, & therefore, the impugned Appellate as well as the original orders are unsustainable. None appears on behalf of Opp. Party No. 1 when the matter is called.

It transpires from the order of the Appellate authority-Sub-Collector, that Yadast of the year, 1965 in respect of the case land was produced before him for the first time though the same was not produced before the Tahasildar. In the Yadast, which has been filed before this Court & marked as Annexure-7, it is clearly written by the Amin on 2.5.1965 that the land in question was sold orally by the father & uncles of present Opp. Party No. 1 in favour of the present Petitioner for a consideration of Rs. 95 in the year, 1940. The Yadast also reveals that the Petitioner was continuing in possession. The Yadast is a document prepared by the Amin during initial stage of Settlement in the year, 1965, when the present dispute between the parties was not in-contemplation. Therefore, the entries made in the Yadast by the Amin on which the father & uncle of the Opp. Party No. 1 have signed is very much relevant which has been overlooked by the Appellate authority. It also transpires that the R.I. has submitted a report on 23.4.1993 to the Tahasildar after making enquiry, wherein it is stated that the Petitioner has constructed house on the disputed land & is in possession of the same & his possession is more than 30 years.

Neither the Tahasildar nor the Sub-Collector has referred to the report of the R.I. which goes to show that the Petitioner is continuing in possession for more than 30 years.

In the case of Raghunath Mahanta v. Kairi Munda & Ors. 32-(1990) OJD 173 (Civil), this Court has held that Section-7D of Regulation-II of 1956 was amended by Regulation-I of 1975 prescribing limitation of 30 years for recovery of property transferred by aboriginal & that the Regulation having come into force in Keonjhar on 12.6.1979, the transferee already in possession for more than 12 years prior to 12.9.1979 cannot be evicted & the land cannot be recovered from him.

A Division Bench of this Court in the case of Burulu Ramalu Vs. Mukunda Raipatra (dead) and after him Damani Jani and Others, held as follows:

"6. The position has to be accepted as well settled that the vested right of a person cannot be divested unless there is express provision in the statute indicating in that way. But, in the present case the legislature while making the amendment in 1975 substituting the period of 12 years by 30 years gave it only limited retrospective effect from 2.10.1973. Therefore, if a person had perfected his title by adverse possession over the property for the requisite period i.e. 12 years, he had a vested right over the said property & such right is not intended to be affected by the amendment in Sec. 7-D of the Regulation. If any decision is necessary in support of the view, we may refer to the case of Indramani Jena and Others Vs. Dandasi Paik and Others,

Another Division Bench decision of this Court on similar line is reported in Atul Chandra Adhikari and Another Vs. State of Orissa and Others,

The oral evidence of the Petitioner & the nature of possession note in the Hal Record of Rights in respect of the case land in favour of the Petitioner & the Yadast of 1965 & the report of the R.I. clearly proved that the Petitioner is in possession of the land since 1940, by virtue of oral sale, for a consideration of Rs. 95. Even though Regulation-II, 1956 was made applicable to Keonjhar in 1979 & that the regulation itself was amended in 1975 by prescribing limitation of 30 years u/s 7-D w.e.f. 1973, the Petitioner being in possession for more than 12 years prior to 1973, the land could not have been directed to be restored in favour of Opp. Party No. 1 by evicting the Petitioner.

Both the impugned orders are, therefore, unsustainable & I quash the same. The Writ Petition is accordingly allowed. No costs.