JUDGMENT : G.B. Patnaik, J. - The Petitioner is a transferee of the disputed land measuring Ac.0.50 decimals out of plot No. 459 of H.S. Khunti No. 85 from opposite party No. 1 who happens to be a member of the Scheduled Caste and the transfer in question was effected by virtue of an unregistered deed dated 8-7-1956. The said opposite party No. 1 filed an .application before the Revenue Officer (opposite party No. 4) invoking his jurisdiction u/s 23(1) of the Orissa Land Reforms Act alleging therein that the transfer in question in favour of the Petitioner is hit by Section 22 of the Act as there was no permission in writing of the Revenue Officer and prayed that possession be restored on him. The Petitioner filed his objection in the said proceeding contending, inter alia that the transfer in question being of the year 1956, the provisions of the Orissa Land Reforms Act would have no application. It was also contended that the Petitioner being in possession for more than twelve years open Iyand continuously in his own right had perfected his title by adverse possession. 2. The Revenue Officer considered the entire materials on record and came to the condition that the Petitioner purchased the land since 1956 and possessed the same since the date of his purchase and the transfer being prior to the corning into force of the Orissa Land Reforms Act, the provisions of the said Act including Section 22 thereof would have no application; He further held that the Petitioner had also perfected his title by way of adverse possession. On these findings the application of opposite party No. 1 was rejected. The said order of the Revenue officer been annexed as Annexure-I. Opposite party No. 1 carried an appeal which was registered as O.L.R. Appeal No. 23 of 1981 and was heard and dispossed of by the Additional District Magistrate who confirmed the findings of the Revenue Officer both on the question of applicability of the Act to the impugned transaction as well as on the question of adverse possession and ultimately dismissed the appeal. The said order of the appellate authority has been annexed as Annexure-2. Opposite party No. 1 carried a revision to the Collector, Sambalpur which was registered as O.L.R. Revision No. 5 of 1983. The said order of the appellate authority has been annexed as Annexure-2. Opposite party No. 1 carried a revision to the Collector, Sambalpur which was registered as O.L.R. Revision No. 5 of 1983. The revisional authority reversed the decision of the Revenue Officer as well as that of the appellate authority on a conclusion that the document in question being compulsorily registrable and admittedly not; being registered could not have been taken into account and, therefore he set aside the orders of the lower authorities and remanded the matter to the Sub-Divisional Officer to consider whether possession of the land could be restored u/s 23-A of the Orissa Land Reforms Act. The said judgment of the revisional authority has been annexed as Annexure-3, The Petitioner assails the legality of the said order of the revisional authority. 3. Mr. S.S. Basu, the learned Counsel for the Petitioner, contends that the transfer in question being prior to the coming into force of the Orissa Land Reforms Act, the provisions of that Act will not apply and, therefore, an application, u/s 23(1) on the face of it is not maintainable. The revisional authority erred in law in not taking into account the said contention as well as the findings of the forums below. Mr. Basu further urges that Section 23A came into the statute book by Orissa Act 44 of 1976 with effect from 25-10-1976. The possession of the Petitioner cannot be said to be unauthorised on the ground of contravention of Section 22 since Section 22 has no application at all to the impugned transaction and even if the possession is held to be unauthorised but the Petitioner being in possession since 1956 had perfected his title by adverse possession by 25-10-1976 and, therefore, it was no longer unauthorised so that the Petitioner could be evicted u/s 23A of the Act. The revisional authority, therefore, erred in law in remanding the matter for consideration as to whether possession could be restored u/s 23A of the Act or not. Mr. S.N. Sinha, the learned Counsel appearing for opposite party No. 1, does not' dispute the proposition of Jaw urged by Mr. Basu for the Petitioner. The revisional authority, therefore, erred in law in remanding the matter for consideration as to whether possession could be restored u/s 23A of the Act or not. Mr. S.N. Sinha, the learned Counsel appearing for opposite party No. 1, does not' dispute the proposition of Jaw urged by Mr. Basu for the Petitioner. But he contends that the document in question under which the Petitioner claims title is not a sale deed but merely an agreement to sell and the Petitioner being in possession pursuant to the said agreement to sell his possession was merely permissive and could not be adverse and, therefore, Petitioner cannot be said to have perfected his title by way of adverse possession and consequently, the revenue authorities will have jurisdiction to restore possession to opposite party No. 1 on a finding that the Petitioner's possession was unauthorised. 4. In the premises, as aforesaid, the following questions arise for our consideration: (i)The transfer in question being of the year 1956, has the Orissa Land Reforms Act any application to the said transfer (ii) Can opposite party No. 1 succeed in getting possession u/s 23A of the Orissa Land Reforms Act even if the transfer is not within the ambit of the Act (iii) Is the deed of transfer really an agreement to sell or a conditional sale (iv) Has the Petitioner been able to establish his case of perfection of title by way of adverse possession. 5. So far as the first question is concerned, it is beyond the pale of controversy that a transfer effected prior to the commencement of the Orissa Land Reforms Act cannot come within the purview of the Orissa Land Reforms Act. The transfer in the present case being of the year 1956 and the Orissa Land Reforms Act having come into force in 1965 the restrictions on alienation contained in Section 22 of the Act will have absolutely no application and, therefore, the basis, on which opposite party No. 1 filed the application invoking the jurisdiction of the Revenue Officer u/s 23(1) cannot be sustained in law Mr. Basu's contention on this score must succeed. 6. Now corning to the second question, Section 23-A was brought into the statute book by way of amendment by Orissa Act 44 of 1976 with effect from 25-10-1976. Basu's contention on this score must succeed. 6. Now corning to the second question, Section 23-A was brought into the statute book by way of amendment by Orissa Act 44 of 1976 with effect from 25-10-1976. Under the said provision if the Revenue Officer finds any person to be in unauthorized occupation of the whole or part of a holding of a raiyat belonging to a Scheduled Caste or a Scheduled Tribe by way of trespass or otherwise the Revenue Officer either on the application by the owner or any person interested therein or on his own motion can order eviction of the person so found to be in unauthorised occupation and cause restoration of the property to the said raiyat. The power is quite wide, but before exercising the said power it must be established that the person concerned is in unauthorised occupation by way of trespass or otherwise. Therefore, if opposite party No. 1 would be able to establish that the Petitioner was in unauthorised occupation of the disputed land which belongs to opposite party No. 1, then the Revenue Officer would be able to restore possession to opposite party No. 1. But the question further' would arise as to whether in the facts and circumstances of the present case, the said opposite party No. 1 could be restored possession by the Revenue Officer in exercise of his power u/s 23A of the Act or not. In answering this question the third question posed by us assumes great significance. 7. According to Mr. Sinha, the deed in question is-an agreement to sell and, therefore, if possession was delivered to the Petitioner pursuant to the Sale agreement then the said possession cannot be adverse. In support of the aforesaid contention he places reliance on a Bench decision of this Court in the case of Baruna Giri (and after him) Purendra Giri and Ors. v. Rajakishore Giri and Ors. 55(1983) C.L.T. 77. It was held in the aforesaid case that' even after the contract to sell title clearly resides in the vendor and even though the proposed vendee has taken possession, his possession is under the contract and is, therefore, clearly permissive. Once the origin of the possession is proved to be permissive, then it will be presumed to be so unless and until the vendee establishes the point of time from which his possession became hostile. Once the origin of the possession is proved to be permissive, then it will be presumed to be so unless and until the vendee establishes the point of time from which his possession became hostile. There cannot possibly be any dispute with the aforesaid proposition of law. But to entertain the aforesaid question in this writ application, the further obstacle that arises is that opposite party No. 1 had never taken this plea in any of the forums below and even the document in question had not been produced. In course of hearing of the writ application, Mr. Sinha had produced for our perusal a certified copy of the document of transfer. But such a contention not having been raised in any of the, forums below, we do not think it appropriate to permit the opposite party No. 1 to raise this contention in this Court for the first time particularly when even if the contention is permitted to be urged and is sustained, it would still be open for the Petitioner' to establish that the possession though permissive at its inception became hostile from, a subsequent period and for that purpose the matter has to be again remanded for further enquiry. The Supreme Court in the case of Bachan Singh and Others Vs. Gauri Shankar Agarwal and Others has laid down the principle that High Court while exercising jurisdiction under Article 226 does not and cannot usurp the function of a Court of appeal and for that reason cannot permit the party to raise a fresh point for the first time before it a Full Bench of the Allahabad High Court considered the question in the case of Adarsh Bhandar Vs. Sales Tax Officer, and it was held that in an application for certiorari if certain objection had not been taken in the Court below then such an objection could not be taken for the first time in the High Court. 170 the same effect is the decision of the Supreme (Court in the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. Sales Tax Officer, Kanpur and Another. The Division Bench of this Court in the case of Teja Singh Vs. Additional District Magistrate (Executive) and Others, also took the same view it is not necessary to multiply authorities on the point. Ltd. Vs. Sales Tax Officer, Kanpur and Another. The Division Bench of this Court in the case of Teja Singh Vs. Additional District Magistrate (Executive) and Others, also took the same view it is not necessary to multiply authorities on the point. In view of the aforesaid settled position of law, we do not think it appropriate to permit Mr. Sinha for opposite party No. 1 to raise the contention urged in this Court for the first time. That apart, even on construing the document that was produced before us by Mr. Sinha, we are unable to accept his submission that the document was merely an agreement to sell and not a sale deed. In any view of the matter, Mr. Sinha's contention cannot be accepted. 8. In view of our conclusion as above, even if the document is excluded from consideration, but the findings of the forums below that the Petitioner being in possession since 1956 openly and in hostile assertion of his right title and interest has perfected his title by adverse possession by the time, Section 23A of the Orissa Land Reforms Act came into the statute book, cannot be interfered with by this Court and the said conclusion must accordingly be affirmed. There visional authority committed an error in not considering that matter and was fully swayed away by the fact that the document of transfer not being registered the Petitioner could not succeed. On the date Section 23A of the Act comes into force if the Petitioner has already perfected his title by adverse possession that title cannot be taken away. In view of our conclusion that the Petitioner did perfect his title by way of adverse possession by 1976, he being in possession since 1956, he cannot be evicted and possession cannot be restored to opposite party No. 1 by invoking jurisdiction u/s 23A of the Orissa Land Reforms Act. In this view of the matter, the order of the revisional authority is wholly unsustainable in law and is hereby quashed. The order of the Revenue Officer and that of the appellate authority are affirmed and the writ application is allowed, but in the circumstances, there will be no order as to costs. J.M. Mahapatra, J. I agree. Writ application allowed. Final Result : Allowed