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2016 DIGILAW 1055 (ORI)

Kadagala Daivanugraham v. Wika Nageswar Rao

2016-11-08

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ application has been filed assailing the impugned order at Annexure-5 passed by the Appellate Authority under Regulation-II of 1956. 2. Short background involved in this case is that the petitioner belongs to non-tribe. The predecessor of the petitioner purchased landed property over plot nos.443, 444 & 445 respectively from the predecessors of private O.P.1 by virtue of two unregistered sale deeds; one on 16.4.1914 for consideration of Rs.50/-for an area of Ac.0.50 cent of land and the balance land was purchased through an unregistered sale deed dated 24.6.1915 for consideration of Rs.25/-. It is claimed by the petitioner that while he was in possession of the disputed property, the predecessor of the private O.P.1 initiated a proceeding under Regulation-II of 1956, registered as R.M.C. No.248/89, which matter, after the concession by the son of the O.P. there that they have no interest over the property and finding that the petitioner was in possession of the property, was dropped. At a subsequent stage, suo motu proceedings were initiated against the present petitioner registered as R.M.C. Nos.27/98, 28/98, 30/98 & 32/98 involving the disputed property and the parties herein. It is urged that considering the petitioner’s claiming his right over the property by virtue of unregistered sale deeds since 1914 and 1915 so also on the basis of his long possession over the disputed property, the original authority disposed of R.M.C. Nos.27/98, 28/98, 30/98 & 32/98 solely on the basis of long possession of the petitioner declaring his title by way of adverse possession. Against this order the present O.P.1 filed Regulation Appeal No.29/98. The appeal proceeding was decided against the petitioner holding that for the settled position of law, no right in favour of a non-schedule person can be declared by virtue of adverse possession. 3. Assailing the impugned order, learned counsel for the petitioner, contended that the petitioner had two supports in his case, one by virtue of purchase of the property from the predecessor of the private O.P.1 way back in 1914 & 1915 and further he had also a stand with regard to right in favour of the predecessor as well as in favour of the present petitioner by virtue of adverse possession. Petitioner in view of the above contended that it was thus incumbent upon the appellate authority to take a decision on the purchase of the petitioner on the basis of unregistered sale deeds. Learned counsel also raises a question as to when the Regulation-II proceeding being initiated by the predecessor of O.P.1 was dropped on contest the 2nd proceeding is not maintainable applying the principle of res judicata and thus sought to set aside the order under Annexures-4 & 5. Learned counsel for the petitioner accordingly prays for setting aside the orders under Anenxure-4 & 5. 4. There is no appearance on behalf of O.P.1 in spite of sufficiency of notice. 5. Sri Mishra, learned Additional Government Advocate, appearing for O.Ps.2 to 4 vehemently urged that the impugned orders are justified for the settled position of law that no right in favour of the non-schedule person can be decided on the basis of adverse possession and the impugned orders also gets the support of the amended provision of Orissa Regulation-II of 1956 restricting the claims concerning property belonging to Scheduled Tribe by way of adverse possession. 6. Considering the rival contentions of the parties and on perusal of the pleadings as well as the observations made in the orders passed by the different authorities, this Court finds, there is no dispute with regard to the purchase of the disputed land by the predecessor of the petitioner by virtue of two sale deeds dated 16.4.1914 and 24.6.1915, as clearly borne from the pleading of the parties narrated by the original authority in Annexure-4. This Court finds, both the sale deeds were against a consideration value ofRs.50/-& Rs.25/-respectively. Under the circumstances, this Court observes that there was no need for registration of the sale deeds. Further the transactions being of the years 1914 & 1915, for the law prevailing at the relevant point of time, there was also no requirement of permission and accordingly, this Court finds, the petitioner had a case on the basis of purchase in the years, 1914 & 1915 respectively. Further the transactions being of the years 1914 & 1915, for the law prevailing at the relevant point of time, there was also no requirement of permission and accordingly, this Court finds, the petitioner had a case on the basis of purchase in the years, 1914 & 1915 respectively. Further this Court finds some force in the submission of the learned counsel for the petitioner that a subsequent proceeding under the same provision involving same property also attracts the principle of res judicata for the reason of existence of a decision already involving the disputed parties and again initiated under Regulation-II proceeding involving the predecessors of the parties, as clearly borne from Annexure-3, consequently this Court also observes that during existence of the impugned order under Anenxure-3, no further proceeding could have been initiated either suo motu or on an application taking the aid of provisions under Regulation-II of 1956. Under the above observations and the findings herein above, this Court finds, the petitioner’s case both so far it relates to the claim based on purchase made in the years 1914 & 1915 and applying the question of res judicata for the decision already existing vide Annexure-3, the second proceeding on self same premises was even not maintainable and accordingly, while allowing the writ application, this Court sets aside both the orders under Anenxures-4 & 5. The writ application succeeds. Parties to bear their respective cost.