SUPREME COURT OF INDIA
Lincai Gamango
Vs.
Dayanidhi Jena
C.A.No.868-74 of 1998
(Brijesh Kumar and Arun Kumar JJ.)
31.05.2004
JUDGMENT
Brijesh Kumar, J.
1. The proceedings of these appeals before this Court arise out of the Revenue
Miscellaneous Cases No.150 to 156 of 1976 filed by the appellants separately
against the separate respondents under the provisions of Orissa Regulation No.2
of 1956 before the Project Administrator, I.T.D.A., Parlakhemundie and Addl.
District Magistrate, Ganjam in the State of Orissa. The cases were filed by the
appellants who belong to Scheduled Tribe of Khariaguda village in Gumma block
whereas the respondents who have been impleaded as opposite parties in
different cases are Pano Christians of Asharyaguda village. It appears that the
land in dispute falls in village Khariaguda which is a scheduled area under the
provisions of the Regulation No.2 of 1956. The claim of the appellants who
filed different cases is that the land belongs to them but it has been forcibly
occupied by the respondents.
2. The cases were decided in favour of the appellants with a direction for
restoration of suit land to them vide order dated 28.2.1979 passed by O.S.D.,
Parlakhemundie. On appeal, however, the Addl. District Magistrate, Ganjam,
Chatrapur, remanded the cases for further inquiry with an observation that the
identity of the suit land was to be ascertained in reference to kabala of
5.5.1927 T.S.No.16/61 with assignment of plot numbers etc. in the said
settlement.
3. Before further proceeding with the matter, it would be relevant to mention
that the State of Orissa promulgated the Regulation in exercise of power
conferred by sub-para (2) of para 5 of the Fifth Schedule to the Constitution,
known as the Orissa Scheduled Areas Transfer of Immovable Property (By
Scheduled Tribes) Regulation, 1956, known as the Orissa Regulation No.2 of
1956, to be referred to as such hereinafter. According to clause (f) of Section
2, "Transfer of immovable property" has been defined to mean:
"mortgage with or without possession, lease, sale, gift, exchange or any
other dealings with such property not being a testamentary disposition and
includes a charge or contract relating to such property."
4. Section 3 of the Regulation provides that transfer of any immovable property
by a member of a Scheduled Tribe to anyone not belonging to a Scheduled Tribe
shall be absolutely null and void except where it is with previous consent, in
writing, of the competent authority. Sub-section 2 of section 3 also provides
that the competent authority may on his own motion order for ejectment of a
person in possession in contravention of sub-section (1) of Section 3.
Sub-section (1) of Section 3 reads as under:
"3.(1) Notwithstanding anything contained in any law for the time being in
force any transfer of immovable property situated within a Scheduled Area, by a
member of a Scheduled Tribe shall be absolutely null and void and of no force
or effect whatsoever unless made in favour of another member of a Scheduled
Tribe or with the previous consent in writing of the competent authority."
5. We further find that under sub-section 2 of section 5 even a surrender or
relinquishment is deemed to be a transfer of property within the meaning of the
Regulation with certain exceptions. It is thus clear that generally subject to
certain exceptions, alienation of immovable property by a tribal to a
non-tribal is impermissible and it is invalid, null and void.
6. Coming back to the facts of this case, we find that after the remand, the
matter was heard and it also transpires that some other parties were also
allowed to intervene. The Revenue Inspector who was assigned the job of
identification of the plots, submitted his report and also entered into the
witness box for his cross-examination.
7. The Trial Court, on considering the report of the Revenue Inspector,
observed as under:
"From the above it can be seen that the boundaries indicated by the
Revenue Inspector in his cross- examination is nearly co-terminus with the
boundary indicated in the kabala of 1927 and is to be accepted."
8. The Project Administrator, I.T.D.A., Parlakhemundie further observed that as
per report of the Revenue Inspector the suit land had been recorded in the
names of some of the second and third party respondents. It is also observed on
the basis of the report of the Revenue Inspector that the petitioners, namely,
appellants herein (the tribals) had not raised any objection at any stage of
the settlement operation claiming the suit land. It is though not indicated
which of the respondents are in possession of the suit land but it is observed
that some of them are in possession as per kabala of 1927 for more than 30
years which is the limitation period according to Section 7-D. Therefore, it
would not attract Section 3 A(1) of the Orissa Regulation No.2 of 1956.
Accordingly, the Trial Court dismissed the petitions. The whole order seems to
be based on the report of the Revenue Inspector.
9. Aggrieved by the order passed by the Trial Court, the appellants preferred
appeals, separately, which have been numbered as Regulation Appeal No.1 of 1987
to Regulation Appeal No.7 of 1987. The Collector and District Magistrate,
Ganjam, the appellate authority allowed the appeals setting aside the order
dated 25.3.1987 passed by the Trial Court after remand with a direction to
restore the possession to the appellants forthwith as per direction given by
the Trial Court in its earlier order. The appellate court observed that the
Addl. District Magistrate, while remanding the case, only wanted the lower
court to give a definite finding as to the identity of the lands with reference
to the R.S.D. of 1927 entry in the ROR and order of Title Suit of 1961. In this
connection the appellate court observed that since the respondents admit
possession of the land in dispute as claimed by the appellants the question of
identity in reference to the documents was not much relevant. Actual possession
over the disputed land was not disputed. The appellate court then found that
the Trial Court had non-suited the appellants relying upon the evidence of
Amin, whose deposition in cross-examination tallied with the documentary
evidence of 1927, but while doing so the earlier report was not taken into
consideration at all which supported the case of the appellants. It was
observed that the order of the Trial Court relying on the cross-examination of
the Amin was erroneous and incorrect. Thereafter the appellate court observed
that during the settlement operation, whosoever is found in possession, is so
recorded accordingly. The respondents have admittedly been in forcible
possession since 1958. Hence it was quite obvious that their names were
recorded in the revenue records. Hence no reliance could be placed on such
records since it is observed that litigation in respect of this land had been
going on since long. Thus the appellate court ultimately found that since the
appellants were deprived of their possession forcibly by the respondents, they
were entitled to be restored back the possession, more particularly, in view of
the fact that the Regulation 2 of 1956 is meant to protect the rights and
privileges of the downtrodden people of the tribal areas and to save them from
exploitation by other classes.
10. Aggrieved by the order passed by the appellate court, the respondents filed
a writ petition which has been allowed and the order passed by the appellate
court has been set aside. The High Court formulated two questions on the basis
of which the order of the appellate court was challenged. Firstly, the finding
that the land belonged to the members of Scheduled Tribe was without any
evidence or material to sustain any such finding and secondly since the
respondents have been admittedly in possession of the disputed land, taken
forcibly since 1958, as per the findings of the appellate court itself, the
respondents had acquired title by adverse possession.
11. It is further found that the amendment vide Orissa Regulation 1 of 1975
giving retrospective effect to the period of limitation enhancing it from 12 to
30 years for prescription of right by adverse possession became effective from
2.10.1973 whereas the respondents had already perfected their right on
completion of 12 years from 1958 i.e. much before 2.10.1973. In this
connection, the High Court placed reliance upon a decision of the Orissa High
Court reported in Madhiya Nayak Vs. Arjuna Pradhan & Ors.1
Thus, the only two reasons given by the High Court for allowing the writ
petition and to set aside the orders passed by the appellate authority in
different appeals are that the appellate authority jumped to the conclusion
that the disputed land had been owned and possessed by the appellant
(respondent no.5 before the appellate authority) without there being any
evidence in support of that conclusion and the other reason that the
respondents had been in unauthorized occupation of the land in dispute and had
perfected their rights by adverse possession.
12. We find both these reasons given by the High Court are not sustainable.
Coming first to the second point, we find that there is a decision of this
Court direct on the point. It is reported in Amrendra Pratap Singh Vs. Tej
Bahadur Prajapati & Ors.2 The matter related to transfer of
land falling in tribal area belonging to the Scheduled Tribes. The matter was
governed by Regulations 2, 3 and 7-D of the Orissa Scheduled Areas Transfer of
Immovable Property (By Scheduled Tribes) Regulations, 1956 viz. the same
Regulations which govern this case also. The question involved was also
regarding acquisition of right by adverse possession. Considering the matter in
detail, in the light of the provisions of the aforesaid Regulation, this Court
found that one of the questions which falls for consideration was "whether
right by adverse possession can be acquired by a non-aboriginal on the property
belonging to a member of aboriginal tribe"? (para 14 of the judgment). In
context with the above question posed, this Court observed in para 23 of the judgment
as follows:
"The right in the property ought to be one which is alienable and is
capable of being acquired by the competitor. Adverse possession operates on an
alienable right The right stands alienated by operation of law, for it was
capable of being alienated voluntarily and is sought to be recognized by
doctrine of adverse possession as having been alienated involuntarily, by
default and inaction on the part of the rightful claimant"
13. This Court then noticed two decisions one that of the Privy Council
reported in Madhavrao Waman Saundalgekar & Ors. Vs. Raghunath Venkatesh
Deshpande & Ors.3 and Karimullakhan s/o. Mohd Ishaqkhan &
Anr. Vs. Bhanupratapsingh4, holding that title by adverse
possession on inam lands, Watan lands and Debutter was incapable of acquisition
since alienation of such land was prohibited in the interest of the State. We
further find that the decision in the case of Madhiya Nayak (supra) relied upon
by the High Court was referred to before this Court and it is observed that the
question as to whether a non-tribal could at all commence prescribing
acquisition of title by adverse possession over the land belonging to a tribal
which is situated in a tribal area, was neither raised nor that point had
arisen in the case of Madhiya Nayak. It is further observed that the provisions
of Section 7-D of the Regulations are to be read in the light of the fact that
the acquisition of right and title by adverse possession is claimed by a tribal
over the immovable property of another tribal but not where the question is in
regard to a non-tribal claiming title by adverse possession over the land
belonging to a tribal situate in a tribal area. It is, therefore, clear in view
of the decision in the case of Amrendra Pratap Singh (supra) that a non-tribal
would not acquire right and title on the basis of adverse possession. Therefore,
the second ground for setting aside the order passed by the appellate court
falls through. Therefore, the other factual aspect about the possession of the
respondents over the disputed land and entries in their favour may also not be
of much consequence, in any case, this aspect of the matter has to be seen and
considered afresh in the light of other facts and circumstances of the case.
14. Again so far the other question is concerned, namely, the appellate court,
according to the High Court, having jumped to the conclusion that the land in
question was owned and possessed by the appellants without there being any
material on the record , we feel that the High Court has dealt with this aspect
very cursorily. There seems to be no dispute about the fact that the disputed
land falls in the tribal area. The appellate authority, whose judgment has been
set aside by the High Court in the writ petition, has dealt with and referred
to orders passed in suits filed earlier by different parties and the effect of
such orders. The respondents are in possession over the land in tribal area but
the appellants pleaded their dispossession at the hands of the respondent
non-tribals forcibly. The High Court, without considering all those aspects, as
considered by the appellate court, came to the conclusion that the appellate
court had jumped to the conclusion about the possession and ownership of the
land in favour of the appellants without any evidence. The High Court would
better have perused other orders passed by the authorities dealing with the
point regarding possession and ownership of land in reference to question of
burden of proof.
15. In our view, the order passed by the High Court is not sustainable. The
question of acquisition of right and title by adverse possession by non-tribal
over the land in the scheduled area belonging to a member of the Scheduled
Tribe does not arise. Since the finding of the High Court on this point is not
sustainable, in our view, the whole matter needs a fresh look considering the
facts as indicated in detail in different orders passed at different stages
namely, the first order passed by the Project Administrator which matter was
later on remanded in appeal by order dated 8.4.1982 and thereafter the facts as
mentioned in the subsequent orders including one passed in appeal which has
been set aside by the High Court by means of the impugned order. If
necessary, other relevant evidence on the record as sought to be pointed out by
the learned counsel may also have to be seen in the light of the provisions of
the Regulation No.2 of 1956 before holding that there is no evidence or
material supporting ownership, title or possession of the applicants viz. the
tribals. The implications of the claim of the respondents for allegedly having
perfected their rights by adverse possession may also have to be examined.
16. In the result, the appeals are allowed and the order and judgment passed by
the High Court is set aside and the matter is remanded to the High Court for
fresh hearing and decision after notice to the parties, in the light of the
observations made in this judgment.
17. Since the matter is hanging for long, the High Court may perhaps do well to
consider for expeditious hearing and disposal of the case.
11988 CLT 360
22003 (9) JT 201
31923 AIR(PC) 205
4AIR (36) 1949 Nagpur 265