JUDGMENT : A.K. RATH, J. 1. Defendants are the appellants against the reversing judgment in a suit for declaration of title, correction of record-of-right and permanent injunction. 2. The case of the plaintiffs is that the suit schedule land was the self-acquired property of Gobardhan @ Babu Khandei, father of defendants 1, 2 and 4 and husband of defendant no. 3. The same was recorded in his name. He alienated the land on 22.1.1973 to the plaintiff nos. 1 and 4 and their brother late Guruba Singh by means of registered sale deed for a valid consideration and thereafter delivered possession. The sale was executed when the settlement operation in the area, where the land falls, started. The plaintiffs approached the settlement authorities for recording the land. The settlement authorities advised them to approach the Tahasildar, Nilgiri for mutation. They made an application before the Tahasildar, Nilgiri but subsequently withdrew the same. They used to pay rent. Taking advantage of wrong recording of the suit land in the settlement operation, the defendants threatened them to dispossess. 3. Defendants 1 to 3 filed written statement denying the assertions made in the plaint. It is stated that the sale deed was executed fraudulently without consideration. Gobardhan @ Babu Khandei had no exclusive right over the suit land. He had no legal necessity to sell the land. The valuation of the suit land was not less than Rs.3000/- per acre in the year 1979. The consideration amount of Rs.1000/- was less than the actual value. The sale deed was not acted upon. Defendant no. 4 was set ex-parte. 4. On the inter se pleadings of the parties, learned Munsif, Nilgiri framed six issues, which are quoted hereunder: “1. Has the plaintiff any cause of action to bring the suit? 2. Is the suit maintainable? 3. Has the sale deed dated 22.1.73 executed by the rightful owner and for consideration? 4. Is the sale deed otherwise invalid and void under Section 22 of OLR Act? 5. Who possessed the suit land during relevant time? 6. What relief?” 5. To substantiate the case, the plaintiffs had examined seven witnesses and on their behalf, seven documents had been exhibited. The defendants had examined five witnesses and on their behalf, five documents had been exhibited. Learned trial court came to hold that the defendants admitted that Rs.200/- was received by late Babu Khandei. 6. What relief?” 5. To substantiate the case, the plaintiffs had examined seven witnesses and on their behalf, seven documents had been exhibited. The defendants had examined five witnesses and on their behalf, five documents had been exhibited. Learned trial court came to hold that the defendants admitted that Rs.200/- was received by late Babu Khandei. D.W.1 was present on the date of execution of the sale deed. D.W.1 and his father knew the contents of Ext.2. D.W.5 (scribe) deposed that he scribed Ext.2 on the instruction of the vendor and read over and explained its contents to him. Hence Gobardhan @ Babu Khandei had saleable right in the suit land. The consideration amount was paid. But then, permission to alienate the suit land was necessary, as the vendor Gobardhan Khandei was Bathudi by caste and Bathudi has been enumerated in Regulation 2 of 1956. Therefore, sale deed dated 22.1.1973 was void one for want of prior written permission. The plaintiffs were not in possession of the suit land. The defendants were in possession of the same. The suit is not maintainable in law. It is hit by sub-section (b) of Section 22 of the Orissa Land Reforms Act (hereinafter referred to as “the OLR Act”). 6. The plaintiffs appealed against the judgment and decree passed by the learned trial court before the learned Addl. District Judge, Balasore. Learned lower appellate court remanded the matter to the learned trial court to frame an issue with regard to the caste of the plaintiff and return a finding. After remand, the learned trial court framed an issue “As to whether the plaintiffs belong to Schedule Tribe or not?” The parties adduced further evidence, both oral as well as documentary. Learned trial court returned the finding that the plaintiffs are “Haldipokhari Bhumija.” Haldipokhari Bhumija does not find place in the Constitution (Schedule Tribes) Order, 1950 and, as such, the plaintiffs are not Schedule Tribes. 7. Assailing the judgment and decree passed by the learned trial court, the plaintiffs filed M.A. No. 65 of 83-I before the learned District Judge, Balasore which was transferred to the learned Addl. District Judge, Balasore and re-numbered as M.A. No. 5 of 86. On the thread-bare analysis of the evidence, oral as well as documentary and pleadings, learned lower appellate court came to hold that the plaintiffs are admittedly Haldipokhari Bhumija and defendants are Bachudis and Schedule Tribe. District Judge, Balasore and re-numbered as M.A. No. 5 of 86. On the thread-bare analysis of the evidence, oral as well as documentary and pleadings, learned lower appellate court came to hold that the plaintiffs are admittedly Haldipokhari Bhumija and defendants are Bachudis and Schedule Tribe. In the sale deed-Ext.2 executed by Gobardhan @ Babu Khandei, it is indicated that Gobardhan @ Babu Khandei is Bachudis by tribe, which is recognized as Schedule Tribe in the Entry No.4 of the list of Schedule Tribe of Orissa. The vendees are Haldipokhari Bhumija. Had the parties been to the sale transaction not members of the Schedule Tribe, the execution and registration of the sale deed Ext.2 would not have been made in view of the embargo under Section 22 of the OLR Act which prohibits alienation of immovable property by the Schedule Tribe to a Non Schedule Tribe. The vendor was not oblivious that the vendees are Haldipokhari Bhumija and belong to Schedule Tribe. In the plaint, it is asserted that the plaintiffs belong to Schedule Tribe. The defendants have not specifically denied the same in the written statement. Ext.6, caste certificate issued by the S.D.O. Nilgiri in favour of the son of the plaintiff Ram Chandra Singh, shows that Mohan Singh is Haldipokhari Bhumija. The caste certificate issued in favour of the plaintiff no.1 was accepted as an additional evidence and the same was admitted as an additional evidence. Learned lower appellate court came to hold that Haldipokhari Bhumija is a sub-tribe of Bhumija within the meaning of Presidential Order. The plaintiffs being the members of the Schedule Tribe, no permission was required to be obtained from the competent authority under Section 22 of the OLR Act. Held so, learned lower appellate court allowed the appeal. 8. The second appeal was admitted on 2.12.1987 on the following substantial question of law: “As to whether the plaintiffs are members of Bhumija tribe or not?” 9. Heard Mr. Alok Kumar Mohanty on behalf of Mr. P. Kar, learned Senior Advocate, learned counsel for the appellants. None appears for the respondents. 10. Mr. Mohanty, learned counsel for the appellants, submitted that the plaintiffs are Haldipokhari Bhumija. At the relevant point of time when the sale deed was executed, the caste Haldipokhari Bhumija was not included in the Constitution (Schedule Tribe) Order, 1950. P. Kar, learned Senior Advocate, learned counsel for the appellants. None appears for the respondents. 10. Mr. Mohanty, learned counsel for the appellants, submitted that the plaintiffs are Haldipokhari Bhumija. At the relevant point of time when the sale deed was executed, the caste Haldipokhari Bhumija was not included in the Constitution (Schedule Tribe) Order, 1950. Learned lower appellate court fell into patent error in relying on the caste certificate issued by the S.D.O., Nilgiri. No roving enquiry is permissible to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Schedule Tribe) Order 1950. He relied on the decision of the apex Court in the case of State of Maharashtra v. Milind and Others, AIR 2001 SC 393 . 11. The Constitution Bench of the apex Court in the case of Milind (supra) held that it is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 12. It is admitted by the parties that the plaintiffs are Haldipokhari Bhumija. The sale deed was executed on 22.1.1973. At the relevant point of time, the tribe Haldipokhari Bhumija was not included in the Constitution (Schedule Tribe) Order 1950. The same was included in the Constitution (Scheduled Tribes) Order, 1950 by Central Act No. 10/2003, which was published in the Gazette of India on 8.1.2003. 13. In Sebati Behera v. Subasi Nayak & Another, 2015 (I) ILR Cut 496, a question arose as to whether inclusion of caste ‘Kaibarta’ in the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 is declaratory or explanatory with retrospective effect. Learned Judges of the Division Bench differ. The matter was referred to the learned third Judge. 13. In Sebati Behera v. Subasi Nayak & Another, 2015 (I) ILR Cut 496, a question arose as to whether inclusion of caste ‘Kaibarta’ in the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 is declaratory or explanatory with retrospective effect. Learned Judges of the Division Bench differ. The matter was referred to the learned third Judge. Relying on the decision of the apex Court in the case of Zile Singh v. State of Haryana and Others, 2004 AIR SCW 5842, the referral court held that the presumption against retrospective operation is not applicable to “declaratory statute” and where a statute is passed for the purpose of supplying an obvious omission in a former statute or to ‘explain’ a former statute, the subsequent statute has relation back to the time when the prior Act was passed. The rule against retrospectively is inapplicable to such legislations as are “explanatory and declaratory” in nature. It was further held that the law laid down in the case of Narayan Behera v. State of Orissa through Secretary, Tribal & Welfare Department and Others, (1980) 49 CLT 47 came delivered on 5.11.1979, till the Constitutional Amendment, was the law on the subject. 14. It is apt to refer the relevant paragraph of Narayan Behera (supra): "4. We have just indicated that according to Clause 2 of the Scheduled Caste Order, the castes, races or tribes or parts thereof as specified in the Schedule are to be taken as Scheduled Castes. Dhibara is a caste and traditionally it refers to the community engaged in the trade of fishing and rowing of boats. Etymologically derived from the root "Dhi" the word Dhibara refers to the persons engaged in catching of fish. In the "Purnachandra Oriya Bhashakosh" which is an accepted authority, the meaning of the word "Dhibara" has been given as "those whose occupation is catching fish." As we have already indicated, Dhibara is not a community as such and essentially refers to that section of people in the society which take to the profession of catching fish. The Supreme Court indicated in Basavalingappa’s case. “…..As the President could not have included in the Order a non-existent caste, it means the word “Bhovi’ relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. The Supreme Court indicated in Basavalingappa’s case. “…..As the President could not have included in the Order a non-existent caste, it means the word “Bhovi’ relates to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court has held that ever since the Order of 1956, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same….” Adopting the substance of the ratio, it should follow that when there is no community known as Dhibara as such and Dhibara essentially refers to a profession, Kaibartas and Keutas who are traditionally accepted to belong to Dhibara profession should be taken as included in the term Dhibara." 15. The ratio in the case of Sebati Behera (supra) applies with full force to the facts of the case. Thus no permission was required to be taken by a person belonging to Haldipokhari Bhumija under Section 22 of the OLR Act for alienation of the land. 16. As a sequel to the above discussions, the appeal is dismissed. No costs.