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Orissa High Court · body

2008 DIGILAW 717 (ORI)

Temburu Ramesh v. Collector, Gajapati

2008-08-19

SANJU PANDA

body2008
JUDGMENT S. PANDA, J. — In this writ petition challenge has been made to the order dated 19th November, 1994 passed by the Collector, Gajapati in Regulation Appeal No.1 of 1990 dismissing the appeal on the ground that the appellants and their successors-in-interest were found to be in unauthorized occupation of the schedule land and directing the Tahasildar to evict them from the disputed land and restore the possession to the present opposite party No.3 who is the successor-in-interest of the recorded land holder under the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (hereinafter referred to as “Regulation 1956”). 2. The facts of the case are as follows : The disputed property measuring an area of Ac.2.320 decs. is situated in Plot No.413 under Khata No.13 in mouza Padmapur under Parlakhemundi P.S. in the district of Gajapati. Trinath Samal, the present opposite party No.3, filed RMC No.66 of 1988 for restoration of the disputed land to him as the transfer of the land was in violation of Section 3(2) of Regulation 1956. He further asserted that he belongs to Scheduled Tribe being “Saba¬ra” and the petitioners were Non-Scheduled Tribe person (General category). The petitioners stand was that the case land was re¬corded in their father’s name-Temburu Ekadasi. After his death, they being the legal heirs possessed the disputed land by virtue of an unregistered sale deed executed by the father of opposite party No.3. The Officer-on-Special Duty (L.R.) by order dated 31.7.1989 in RMC No.66 of 1988, on the application of opposite party No.3, issued notice to the petitioners and also received evidence from both the sides. After due enquiry, he came to the finding that in the year 1966 the case land of about Ac.0.80 decimals was mortgaged to the father of the respondent on ‘Khand¬iguta’ for ten years. According to the terms of ‘Khandiguta’, the land was to be given back to opposite party No.3’s father after ten years i.e. in the year 1975. The land was mortgaged for the repair of his house. The land was recorded in the name of the present petitioners who were respondents though Parcha was issued in the name of the present opposite party No.3. The respondents got the land recorded in their name by the Settlement Officer. The land was mortgaged for the repair of his house. The land was recorded in the name of the present petitioners who were respondents though Parcha was issued in the name of the present opposite party No.3. The respondents got the land recorded in their name by the Settlement Officer. Ext.1 is the Parcha issued in the name of the petitioner, (present opposite party No.3) as the owner of the case land. The respondents filed Ext.A, the so-called sale deed of the year 1937 executed for a sum of Rs.40/- which was a stamped unregistered document. They stated that the land was under their physical possession for the last 52 years. Ext.A was the Xerox copy of the sale deed. The said document was scribed by one Gopabandhu Dalai who was a teacher by that time. In his cross-examination, he denied the fact that he was a regular witness in police and other cases. He knew the contents of Ext.A but could not read it. On the above evidence, the Officer-on-Special Duty (L.R.) on the basis of the report of the Block Development Officer, Rayagada on preliminary enquiry held that the case land was under the cultiv¬able possession of the present petitioners since 1969. He further held that they were in unauthorized occupation of the disputed land by virtue of the mortgage deed locally known as ‘Khandigu¬ta’. As no permission was accorded for such mortgage, he restored the land to opposite party No.3 under Section 3(2) of the Regula¬tion-2 by imposing a penalty of Rs.200/- on the persons who unauthorizedly occupied the disputed land under Section 7(1) of Regulation-2. Being aggrieved by the said order, they filed Regulation Appeal No.1 of 1990 before the Collector & District Magistrate, Gajapati, Parlakhemundi. The appellate authority by order dated 19th November, 1994 confirmed the order of the Offi¬cer-on-Special Duty (L.R.) with a finding that the unregistered sale deed did not show the name of the buyer of the stamp paper from the stamp vendor and as it was a Xerox copy, the same was not a valid document and directed for restoration of the land. While the matter stood thus, the Officer-on-Special Duty (L.R.) initiated a suo-motu proceeding under Section 3(2) of Regulation 1956 which was registered as RMC Nos.959 & 652 of 1995. While the matter stood thus, the Officer-on-Special Duty (L.R.) initiated a suo-motu proceeding under Section 3(2) of Regulation 1956 which was registered as RMC Nos.959 & 652 of 1995. He dropped the said proceeding with an observation that since the dispute was earlier adjudicated by the Collector in Regulation Appeal No.1 of 1990, he cannot sit on the order of the Collector and the parties were advised to seek their recourse in the Hon’¬ble High Court against the order of the Collector. Thereafter, the present writ petition was filed. 3. The learned counsel for the petitioners submitted that the petitioners are in possession of the disputed land since 1937 as per an unregistered sale deed and since the valuation of the land was only Rs.40/- (below Rs.100/-), the said document did not require registration. Therefore, the findings of the authorities are liable to be interfered with. He also advanced the plea of adverse possession since 1937 to 1988 when the proceeding was initiated. Therefore, he prayed that the proceeding under Section 3(2) of Regulation 1956 was liable to be quashed as in RMC Nos.959 & 652 of 1995, the present opposite party No.3 admitted the sale by his father. 4. The learned counsel for opposite party No.3, on the other hand, submitted that the findings of the Officer-on-Special Duty as well as the Collector, Gajapati in a proceeding under Section 3(2) of a Regulation 1956 are findings of fact and this Court normally should not interfere with the said findings of fact. He submitted that the petitioners have not explained the delay in filing the writ petition after the disposal of Regula¬tion Appeal No.1 of 1990 in the year 1994. Annexure-5 is the copy of the statement of opposite party No.3 recorded in a subsequent proceeding initiated suo-motu by the Officer-on-Special Duty in the year 1995 and the said statement shall not be taken into consideration in the present proceeding as the same was not connected with the present proceeding and the deponent did not get any scope to explain such statement in this proceeding as the statement was not put to him specifically. He further submitted that the so-called Xerox copy of the un registered sale deed was not a document to show that the land was transferred in absence of original owner. He further submitted that the so-called Xerox copy of the un registered sale deed was not a document to show that the land was transferred in absence of original owner. The document neither specified the area of the disputed land nor did it mention the specific plot or the khata number. The said document did not show that the possession was delivered to the purchaser. Therefore, the said document was not a valid document for transfer of the land. Hence, the same should be ignored. Accordingly, he prayed for dismissal of the writ petition. 5. Considering the rival submissions of the parties and after going through the records, it is gathered that the petitioners were in possession of the land when the proceeding was initiated under Regulation 1956 in the year 1988. Opposite party No.3 specifically stated that the land belongs to his predecessor-in-interest. In support of his contention, he proved the Parcha which was issued by the settlement authority. The report of Block Development officer reveals that the petitioners were in unauthorized occupation of the land since 1969. The document Ext.A was the Xerox copy of the unregistered sale deed which is not a valid document to show that the transfer was made in the year 1937. They did not examine any witness to corroborate their possession over the land from the year 1937 to the knowl¬edge of the true owner. 6. As per Section 3-A of Regulation 1956, if a person is in unauthorized occupation, the revenue officer after enquiry can pass order of eviction of such unauthorized person. For better appreciation, Section 3-A of Regulation 1956 is quoted below : “{3-A. Evidence of persons in unauthorized occupation of property - (1) Where a person is found to be in unauthorized occupation of any immovable property of a member of the Scheduled Tribes by way of trespass or otherwise the competent authority may, either on application by the owner or any person interest therein, (or on information received from the Grama Panchayat) or on his own motion, and after giving the parties concerned an opportunity to being heard, order rejectment of the person so found to be in unauthorized occupation and shall cause restora¬tion of possession of such property to the said member of the Scheduled Tribes or to his heirs. (2) The provisions contained in Sub-secs. (2) The provisions contained in Sub-secs. (2), (3) and (4) of Section 3 shall mutatis mutandis, apply to the proceedings instituted or initiated under Sub-sec. (1)]. (3) In every case after finalization of the proceedings under Sub-sec. (1), the competent authority shall make a report to the concerned Grama Panchayat about the order of ejection passed in respect of any person in authorized occupation of any immovable property of a member of a Scheduled Tribe and the restoration of possession of the property to such member on his heirs and in case of failure of such restoration, the reasons for such failure.} 7. From the above, it appears that if a person is in unauthorized occupation of a land belonging to a Scheduled Tribe person, the Revenue Officer after due enquiry can direct eviction of the unauthorized occupation of the disputed land by such person (who belongs to a General category). To attract the claim of unauthorized occupation as adverse possession, the person has to prove the following principles. In law every possession is not adverse possession. The process of acquisitions 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 contin¬ues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself. 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 the part of the real owner, which stretched over 12 years results into extinguishing of the latter’s title and it is that extinguished title of the real owner which comes to vest in the wrong doers. The law does not intent to confer any premium on the wrong doing of a person in wrongful possession. Doctrine of adverse possession as having been alienated in voluntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of ‘dealing’ with one’s property which results in extinguishing one’s title in property and vesting the same in the wrong doer in possession of the property. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of ‘dealing’ with one’s property which results in extinguishing one’s title in property and vesting the same in the wrong doer in possession of the property. In the present case, the petitioners were not able to prove the point of time within the knowledge of opposite party No.3 when they were in possession of his property claiming title adverse to him to attract the principle of adverse possession. As such, they were not entitled to any right over the disputed property and rightly the authority came to the conclusion that they were liable to be evicted from the disputed land as the land belongs to a Scheduled Tribe person and they were in unauthorized occupation thereof. Therefore, the Officer-on-Special Duty (LR) on the application of opposite party No.3 issued notice to the petitioners and after hearing both the sides came to a finding that the petitioners were in possession of the land under an invalid transfer and the said order was confirmed by the Collec¬tor, Gajapati. Hence, this Court is not inclined to interfere with the impugned order dated 19th November, 1994 passed by the Collector, Gajapati in Regulation Appeal No.1 of 1990. The writ petition is accordingly dismissed being devoid of merit. No costs. Petition dismissed.