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2010 DIGILAW 452 (ORI)

Sada Nanda Mohanta v. Dusmanta Patra

2010-07-05

SANJU PANDA

body2010
JUDGMENT S. PANDA, J. : In this writ petition, the petitioner has challenged the order dated 28.1.1995 passed by the Collector, Mayurbhanj in OLR Revision Case No. 11 of 1994 whereby he dismissed the revision on the ground of limitation as well as on merits and confirmed the order dated 27.8.1994 passed by the Addl. District Magistrate (L.R.), Mayurbhanj, Baripada in OLR Appeal Case No. 16 of 1994 and the order dated 19.3.1994 passed by the Sub-Collector, Panchpir, Karanjia in RMC No. 5 of 1992. 2. The facts, as narrated in the records, are as follows: Opposite party no.1 filed an application under Section 23 of the Orissa Land Reforms Act (in short, “the Act”) before the Sub-Collector, Karanjia for recovery of possession of land measuring Ac.0.20 decimals in Plot No. 373 under Khata No. 179 situated in village Thakurmunda. Kissam of the land is Gharabari-2. He cate¬gorically stated that the aforesaid land stands recorded in favour of Ratikanta Patra, Dusamanta Patra and others and the recorded tenants are Patra Tanti by caste. As such, in the Presi¬dential Notification they have been declared as Scheduled Castes so far as the State of Orissa is concerned. The ROR reveals that note of forcible possession was recorded in the name of Sadananda Mohanta and the land was purchased through invalid sale deed without obtaining prior permission as required under the Act. Notice was issued to the petitioner. He filed his objection stating therein that his ancestors are in possession of the land since 1952 after giving consideration money to the owner of the land in pursuance of the oral sale. Thereafter the recorded tenant executed registered sale deed No. 1616 dated 18.10.1968. From the date of purchase, he constructed house and is residing therein. The applicant, being Patra by caste, does not belong to Scheduled Caste. Therefore, his application was liable to be rejected. 3. The Sub-Collector after hearing the parties and taking into consideration the report of the R.I. and other materials available on record came to the conclusion that the applicant belongs to Scheduled Caste community, the person in possession of the land belongs to Non-Scheduled Caste, the unregistered sale deed in pursuance of the oral sale as claimed by the purchaser is not valid in the eye of law nor the same is authenticated and the sale deed had been executed without prior permission from the competent authority. Therefore, Section 23 of the Act is attracted. On such findings, Sub-Collector, Karanjia directed the Tahasildar, Karanjia to restore the schedule land to the appli¬cant. 4. Being aggrieved by the said order, the petitioner filed OLR Appeal before the Addl. District Magistrate (OLR), Mayurb¬hanj, Baripada contending that the ROR reveals the caste of the recorded tenant as “Patra Tanti”. However, in the registered sale deed, the caste of the vendor is reflected as “Patra”. Therefore, the entries made in the ROR cannot conclusively prove the caste of the said vendor. Secondly, he contended that actual transfer of the land was made on 5.1.1952 prior to the commencement of the OLR Act through an unregistered sale agreement since the consid¬eration money had been paid and possession was delivered and subsequently the said transaction was regularized by execution of the registered sale deed. As he was in possession of the land since 1952, he is not entitled to recovery of possession. Third¬ly, he acquired title by adverse possession being in possession of the same since 1952. The Addl. District Magistrate dealing with the aforesaid three contentions raised by the appellant came to the conclusion that entry made in the ROR is invalidly accept¬ed as genuine unless contrary thereto is proved and in the ab¬sence of any documentary evidence like Sabik ROR, Electrical Roll and other relevant documents to refute the contention that the applicant belongs to non-Scheduled Caste community, mere mention¬ing of the caste in the registered sale deed cannot be accepted as genuine. The caste of the vendor was intentionally reflected in the registered sale deed as “Patra” to frustrate the provi¬sions of the Act and to avoid prior permission from the competent authority. To answer the second contention of the appellant, he recorded that unregistered sale agreement had been manufactured as an after-thought to bestow the legality to an otherwise ille¬gal transaction. Since the registered sale deed was executed in the year 1968, the appellant is not entitled to adverse posses¬sion as the title of the recorded tenant had not extinguished after statutory period of 30 years. On these finding, he dismissed the appeal on 27.8.1994. 5. Against the said order, petitioner filed revision along with an application under Section 5 of the Limitation Act before the Collector, Mayurbhanj, Baripada. On these finding, he dismissed the appeal on 27.8.1994. 5. Against the said order, petitioner filed revision along with an application under Section 5 of the Limitation Act before the Collector, Mayurbhanj, Baripada. The revisional authority considering the revision on merits as well as the application for condonation of delay and after hearing the learned counsel for the parties who reiterated the same contentions as raised before the appellate authority, recorded the finding that the caste of the vendor has been conclusively proved in the original Court as well as in the appellate Court that he is a member of Scheduled Caste community and the mention of the Vendor’s caste as “Patra” in the sale deed has no evidentiary value to take a contrary view. Since the sale deed of the year 1968 has been accepted by the transferee, the claim of adverse possession is not available to the transferee as he admitted the title of true owners while executing the registered sale deed in the year 1968 and his previous possession in pursuance of the unregistered deed of agreement to sale lost its value or relevance. Since 30 years period of limitation has not been completed from the date of execution of the registered sale deed, the plea of adverse pos¬session is not sustainable. As the caste factor of the vendor has already been determined as Scheduled Caste in both the Courts, the arguments advanced by the revision petitioner are found to be untenable being without any supportable materials. Coming to the aforesaid conclusion, the Collector, Mayurbhanj did not condone the delay and dismissed the revision. 6. Learned counsel appearing for the petitioner submitted that the petitioner was not permitted to adduce any evidence in support of his contention before the Sub-Collector as well as the appellate authority and he is in possession of the property since 1952 by constructing his pucca dwelling house thereon. The land was purchased by his late vendor-Jagannatha Mohanta for a consid¬eration amount of Rs.98/- in the year 1952 and as the amount was less than Rs.100/-, registration of the deed was not compulsory. The land was purchased by his late vendor-Jagannatha Mohanta for a consid¬eration amount of Rs.98/- in the year 1952 and as the amount was less than Rs.100/-, registration of the deed was not compulsory. However, subsequently after the death of his father Jagannatha Mohanta, the present petitioner obtained a registered sale deed dated 18.10.1968 and after 26 years from the said execution of the sale deed, at a belated stage petitioner’s application has been rejected by opposite parties 2 to 4, who are the statutory authorities. 7. Learned Addl. Government Advocate submitted that the plea of sale by unregistered document in the year 1952 is not sustainable in the eye of law as the vendee obtained a registered sale deed from the recorded tenant in the year 1968 by which time the Act had come into operation and since the sale deed was executed without prior permission of the authorities as required under the Act, the same is invalid and the land owner is entitled to restoration of possession of the land. The sale deed reveals that the valuation of the property was Rs.960/-. As the valuation of the property was more Rs.100/-, the document was registered and to avoid the prior permission for execution of the sale deed, they reflected the caste of the vendor as “Patra”. Since the OLR Authority as well as appellate authority conclusively held that the sale deed is invalid being execution without prior permission of the competent authorities and as the applicant belongs to Scheduled caste, he is entitled to restoration of possession of the land. Therefore, the impugned orders are not liable to be interfered with. 8. Considering the rival submissions of the parties, this Court called for the LCR which was produced by the learned Addl. Government Advocate. After going through the LCR, it appears that at no stage the petitioner filed application before the competent authority to adduce evidence. Therefore, the contention of the learned counsel for the petitioner that the petitioner was not permitted to adduce evidence is not sustainable. Rather, the record shows that his counsel argued on merits of the case, relied on the unregistered agreement for sale of the year 1952 and contended that the petitioner is in possession of the disput¬ed land since then which was rejected by all the forums below. Rather, the record shows that his counsel argued on merits of the case, relied on the unregistered agreement for sale of the year 1952 and contended that the petitioner is in possession of the disput¬ed land since then which was rejected by all the forums below. Therefore, it is a concurrent finding of fact and is not liable to be interfered with in the writ petition. Furthermore, as it appears from the record, the petitioner obtained a registered sale deed in the year 1968 admitting the title of the recorded land owner which passed to the vendee from the said date. There¬fore, the possession of the vendee prior to the date when the registered sale deed had been executed merged in his possession on and from the said date. By that time since the Act had come into force, executing the sale deed, prior permission of the competent authority was necessary to be obtained by the vendor to transfer the land as he belongs to Scheduled Caste. Hence the authorities rightly rejected the claim of the petitioner. 9. As there is no error or illegality on the face of the record, this Court is not inclined to interfere with the impugned orders. Accordingly, the writ petition is dismissed. No costs. Petition dismissed.