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2008 DIGILAW 705 (ORI)

SITA TANDI v. COLLECTOR BOLANGIR

2008-08-18

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this writ application the Petitioners have challenged the orders dated 28.2.1989 and 1.3.1989 passed by the Revenue Officer, Titilagarh in Revenue Case No. 8/23 of 1985 and the order dated 26.11.1999 passed by the Collector, Bolangir in O.L.R. Revision No. 3 of 1991 wherein the application of the Petitioners u/s 23 read with Section 23-A of the O.L.R. Act (hereinafter referred to as "the Act") was rejected. 2. The facts of the case are as follows: The Petitioners are the successors-in-interest of one Gualu Tandi who filed an application for restoration of possession of the disputed of property about Ac. 6.24 decimals of land. The grievance of the Petitioners is that the aforesaid property was mortgaged in the year 1968 in favour of the present opposite party No. 4. Another mortgage deed was executed in the year 1972 at the instance of opposite party No. 4. However, there was no permission from the Revenue Officer and as such he prayed for restoration of possession of the said land in his favour. The Revenue Officer conducted field enquiry on 23/25.1.1985 in presence of the parties and other villagers. In the said enquiry, only statements of the villagers were recorded to ascertain the religion of the Petitioners and no reference was made to the date of physical occupation over the case land. However, the report dated 2.1.1989 of the Revenue Officer revealed that opposite party No. 4 was not in possession of the land in the years 1975 to 1980. 3. The Revenue Officer, in absence of any documentary evidence regarding the mortgage or transfer of the case land, held that the physical possession of opposite party No. 4 over the said land was authorised forcible possession and proceeded u/s 23-A of the Act. He held that opposite party No. 4 perfected his title by way of adverse possession. The Revenue Officer proceeded with the observation that the forcible possession of opposite party No. 4 was from the year 1968 till the date on which the dispute was filed and holding that the interval being more than 12 years from the date of the dispute (21.5.1989), he rejected the Petitioners' application for restoration of possession of the disputed land on 1.3.1989. 4. Being aggrieved by the said order, the Petitioners filed O.L.R Appeal No. 28 of 1989 before the Addl. District Magistrate (L.R), Bolangir. 4. Being aggrieved by the said order, the Petitioners filed O.L.R Appeal No. 28 of 1989 before the Addl. District Magistrate (L.R), Bolangir. The Addl. District Magistrate (L.R) held that Section 23-A of the Act came into operation on 25.10.1976 and the unauthorized possession of opposite party No. 4 over the disputed land commenced from 1968 arid not earlier. Therefore, the Revenue Officer should have directed for eviction of the person in unauthorized occupation in accordance with the provisions of Sub-section (3) of Section 23 of the Act, as by 25.10.1976 the period of 12 years was not completed, and for restoration of possession of the property to the Petitioners and with the said finding, he set aside the order of the Revenue Officer and directed him to take follow-up action. 5. Against the said order of the appellate authority, opposite party no A filed O.L.R. Revision No. 3 of 1991 before the Collector, Bolangir raising objection that the petition having been filed u/s 23 of the Act, the relief prayed for therein could not be granted and he having been in possession from 1968 already perfected his title over the disputed property by adverse possession by the time the petition u/s 23 of the Act was filed before the Revenue Officer in the year 1985 for restoration of the land. The collector recorded the finding that Gualu Tandi has filed the application under Sections 23 and 23-A of the Act on 26.6.1984 and on a plain reading of Section 23-A of the Act, it was clear that when the Revenue Officer found to be in authorized occupation the whole or part of the a holding of a raiyat belonging to a Schedule Caste or of a raiyat belonging to a Schedule Tribe within any part of the State other than a Scheduled Area, by way of trespass or otherwise, the Revenue Officer may either on application by the owner or any person interested therein, or on his own motion and after giving the parties concerned an opportunity of being heard, order eviction of the person so found to be in unauthorized occupation and shall cause restoration of the property to the said raiyat or to his heir in accordance with the provisions of Sub-section (3) of Section 23 of the Act. Therefore, the Revenue Officer was competent to take action u/s 23 of the Act and admittedly Section 23-A of the Act came into force on 25.10.1976. Therefore, the contention that the Petitioner (the present opposite party No. 4) had not perfected his title by adverse possession as he was not in possession of the land was not accepted in view of Section 23-A of the Act though it came to force in the year 1976. No application for eviction was filed before completion of 12 years. By the time of filing of the application for eviction, the person who was in forcible occupation of the land, had completed continuous possession over the said land for more than 12 years. Therefore, restoration of possession of the land was not permissible. He held that the provision of Section 23. B(2) of the Act is prospective and the land holder was not entitled to recover the possession and as such, he allowed the revision and set aside the order passed by the Addl. District Magistrate (L.R). 6. Learned Counsel for the Petitioners submitted that both the courts below did not consider the report dated 2.1.1989 of the RI., Kantabanji wherein he had stated that the Petitioners were in possession of the disputed land in the years 1975 to 1980. Further, he submitted that Section 23-A of the Act was inserted in Section 23 B(2) in the year 1991 so far as the amendment of the Limitation Act and its application is concerned and as per the said provision, "12 years" was substituted by "30 years". As the possession of opposite party No. 4 was not 30 years by the time the petition for restoration of possession was filed, the Petitioners are entitled to get recovery of possession under the O.L.R Act. 7. Learned Counsel for the opposite parties submitted that the amendment of Section 23-B(2) of the Act is prospective as the same is a penal provision and it has no retrospective effect. 8. The law is well settled that a penal provision is always prospective and it has no retrospective effect. 7. Learned Counsel for the opposite parties submitted that the amendment of Section 23-B(2) of the Act is prospective as the same is a penal provision and it has no retrospective effect. 8. The law is well settled that a penal provision is always prospective and it has no retrospective effect. But so far as the fact of the case is concerned, this Court after going through the LCR finds that opposite party No. 4 filed his show cause before the Revenue Officer where he stated that the land 'was not mortgaged to him in the year 1968 and he was in forcible possession over the case land since Akhaya Tritiya day of 1960. There was no document available on record to come to a conclusion that the land was in possession of opposite party No. 4 since 1968. Therefore, the said finding of the OLR authority was without any material on record and perverse. The records reveal that the authorities proceeded as if opposite party No. 4 was in continuous possession for more than 12 years and his possession was adverse to the rightful owner and since the Petitioners did not take any action within 12 years, they are not entitled to get restoration of the property. (emphasis supplied) 9. Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the Defendant becomes adverse to the Plaintiff. By virtue of Section 27 of the Limitation Act at the determination of the period of limitation by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the true owner. (emphasis supplied). The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the true owner. (emphasis supplied). The right commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrong.doer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession. It pronounces the penalty of extinction of title on the person who though entitled to assert possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by doctrine of "adverse possession" as evidence of the loss of desire on the part of the rightful owner to assert his rightful ownership and reclaim possession. 10. Since opposite party No. 4 did not prove that he was in continuous possession over the property to the knowledge of the rightful owner, the Petitioners, for more than 12 years with hostile animus to extinguish title of the rightful owner, the finding of the authority is an error apparent on the face of the record. 11. In this regard reference may be made to the decision reported in 1997 (II) OLR (SC) 305 (Achutananda Baidua v. Prafullua Kumar Gauen and Ors. wherein the apex Court has held that law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. Where the authorities come to a finding of fact by asking itself a wrong question or approaches the question in an improper manner, the said finding cannot be said to be one rendered with jurisdiction and, therefore, is amenable to correction under Article 227 of the Constitution of India. As in the present case, the finding of the authority is perverse and an error apparent on the face of the record, this Court, in exercise of its jurisdiction under Article 227 of the Constitution of India, quashes the order dated 26.11.1999 passed by the Collector, Bolangir in O.L.R Revision No. 3 of 1991 and upholds and restores the order dated 12.11.1990 passed by the Addl. District Magistrate (L.R), Bolangir in the O.L.R Appeal No. 28 of 1989 so far as the eviction of the person in unauthorized possession over the disputed land, i.e.,opposite party No. 4. 12. The writ application is accordingly allowed. No costs. Final Result : Allowed