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2004 DIGILAW 94 (ORI)

Nava Naik v. Karmi Bewa

2004-02-11

P.K.TRIPATHY

body2004
ORDER 11.2.2004 — Heard further from learned counsel for petitioner and learned Addl. Standing Counsel. Counsel for opposite party Nos. 1 and 2 are not present. Hearing is concluded and order is as follows : 2. Case No. 15 of 1981 under the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulations, 1956 (for short, ‘Regulation 2 of 1956) was initiated by opposite party No. 1 on the allegation of unauthorised occupation by Benamidar, i.e. Nanda Kishore Das, i.e., opposite party No.2. The writ petitioner was opposite party No. 2 is that case. Registered sale deed dated 26.4.1974 was executed in his favour. Opposite party No. 1 alleged that opposite party No. 2 purchased the land Benami in the name of writ petitioner and the said opposite party No. 2 is in possession of the case land unauthorisedly. She (opposite party No.1) stated that she and the writ petitioner are members belonging to Scheduled Tribe whereas opposite party No. 2 is a member of non-scheduled tribe community. She prayed for eviction of opposite party No. 1 and recovery of possession of the case land in her favour. 3. Learned Sub-Divisional Officer, Kaptipada (Udala) issued show-cause notice and conducted enquiry. In course of that, on behalf of opposite party No. 1 one Kanduri Mohan Das was examined as solitary witness whereas on behalf of writ petitioner two witnesses were examined besides himself as a witness. Oppo¬site party No. 2 neither filed any written statement nor adduced any evidence. On appreciation of evidence on record learned Sub-Divisional Officer found that allegation of Benami transaction and possession by opposite party No. 2 could not be proved by opposite party No. 1 and on the other hand the evidence led by the writ petitioner proves regarding availability of nucleus by him to purchase the land. Accordingly he rejected the application and dismissed the case. 4. Opposite party No. 1 preferred Appeal Case No. 3 of 1986 under Regulation 2 of 1956 in the Court of Addl. District Magistrate, Mayurbhanj. On 21.2.1989 the appellate Court allowed the appeal on the ground that the evidence adduced by the writ petitioner did not disprove the allegation of Benami transaction and accordingly opposite party No. 2 being in unauthorised occu¬pation of the case land, he is liable to be evicted and the pos¬session be restored to opposite party No. 1. District Magistrate, Mayurbhanj. On 21.2.1989 the appellate Court allowed the appeal on the ground that the evidence adduced by the writ petitioner did not disprove the allegation of Benami transaction and accordingly opposite party No. 2 being in unauthorised occu¬pation of the case land, he is liable to be evicted and the pos¬session be restored to opposite party No. 1. He also imposed a penalty of Rs. 250/- (two hundred fifty) against the opposite party No. 2 with a direction for payment of the same to opposite party No. 1. 5. Learned counsel for the petitioner argues that the factu¬al conclusion derived by learned Addl. District Magistrate is not only incorrect and based on no evidence relating to Benami trans¬action but also it suffers from lack of legal sanction to pass an order of eviction, which, in effect, affects the possession and title of the writ petitioner, who is legally entitled to retain the same. Accordingly he prays to set aside the order of the Addl. District Magistrate and to restore the order passed by the Sub-Divisional Officer. 6. Learned Standing Counsel on the other hand argues that when opposite party No. 2 has not challenged to the order of eviction and payment of fine, therefore, it would be proper that the local Tahsildar be directed to make an enquiry for implemen¬tation of the order of the appellate Court only if opposite party No. 2 is found in possession and not otherwise. 7. Provision in Section 3 of the Regulation 2 of 1956 provides that a transfer of immovable property belonging to a member of Scheduled Tribe in favour of non-Scheduled Tribe person is void and in such a case possession be restored to the trans¬ferror or his legal heirs. In the case at hand, the sale transac¬tion was between opposite party No. 1 and the writ petitioner. Therefore, a permission, as contemplated in Section 3 of the Regulation 2 of 1956 is not applicable to the facts and circum¬stances of the present case. 8. Section 3-A of the Regulation 2 of 1956 provides for eviction of a person in unauthorised occupation of immovable property belonging to a member of Scheduled Tribes. Therefore, a permission, as contemplated in Section 3 of the Regulation 2 of 1956 is not applicable to the facts and circum¬stances of the present case. 8. Section 3-A of the Regulation 2 of 1956 provides for eviction of a person in unauthorised occupation of immovable property belonging to a member of Scheduled Tribes. If the alle¬gation of opposite party No. 1 is correct, then opposite party No. 2 can be said to be in unauthorised occupation of the proper¬ty, because his possession is neither on the basis of a valid title nor he has been authorised by the owner of property to possess the land in a lawful manner. In other words, if the alle¬gation of Benami transaction is made out, then undoubtedly oppo¬site party No. 2 is in unauthorised occupation of the property. In such a case property can be restored to its true owner i.e., the person who is holding title and not necessarily to the appli¬cant who has alienated that property. 9. Evidence laid by opposite party No. 1 does not prove the case of Benami transaction nor exclusive possession of the property by opposite party No. 2. That is the finding of the Sub-Divisional Officer. That finding has not been found to be incor¬rect by learned Addl. District Magistrate. None-the-less, learned Addl. District Magistrate passed the order in favour of opposite party No. 1 on the assumption that opposite party No. 2 failed to prove that it was not a case of Benami transaction. Learned Addl. District Magistrate failed to comprehend the fact situation and the legal requirement while deciding in such a wrong manner. Admittedly, opposite party No. 2 did not contest the case. On the other hand the writ-petitioner contested the case claiming both title and possession. In such a fact situation if the opposite party No. 1 is interested to get recovery of possession, then she is required to prove that no such sale transaction took place validly and genuinely and that she negotiated the sale transac¬tion with opposite party No. 2 and the writ petitioner is merely name lender in that sale deed. Therefore, that burden is on the opposite party No.1 to prove that aspect. Therefore, that burden is on the opposite party No.1 to prove that aspect. Since she has not discharged that burden, it cannot be readily inferred that it is a case of Benami transaction and more so when the writ-petitioner asserts his right, title, interest and possession on the basis of the registered sale deed. 10. The above discussed provision of law and lack of proof by opposite party No.1 about the Benami transaction is sufficient to set aside the order passed by learned Addl. District Magis¬trate in the Appeal Case and notwithstanding that the fact re¬mains that if any body is to recover possession on the basis of evidence on record, then it is the writ-petitioner and not the opposite party No.1 if it is presumed that opposite party No.2 is in actual possession of the case land. Under such circumstance, this Court is inclined to accept the proposal of learned Standing Counsel and accordingly directs that learned Tahsildar of the concerned Tahsil to conduct an enquiry so as to find out who is in actual possession of the case land. If it is opposite party No. 2 then he be evicted and possession be restored to the writ-petitioner, because he is the rightful owner on the basis of the sale deed executed by opposite party No. 1 as back as in the year 1974. Possession is not restorable to opposite party No. 1 unless she proves Benami character of the transaction, again a matter which may be within the competency of the Civil Court. The con¬cerned Tahsildar shall complete the exercise within a period of two months from the date of receipt of a copy of this order. The writ petition is accordingly allowed. Petition allowed.