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2016 DIGILAW 643 (ORI)

Bhagabatia Panda v. Collector, Jharsuguda

2016-08-17

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. The petitioner has filed this petition challenging the judgment of the Appellate Authority as well as the Revisional Authority vide Annexures-2 & 3 to this petition. 2. Short background involved in this petition is that one Paitu Ganda grandfather of opposite party No.2 transferred the case land by way of a registered sale deed bearing No. 1273 dated 24.4.68 to the present petitioner. From the case record, it appears that one Sansara Ganda son of Paitu Ganda initiated O.L.R Case bearing No.16/84 for restoring the disputed land from the present petitioner on premises that he belongs to ‘Ganda’ which again belongs to Schedule Caste and consequently, before sale of the land, permission under Section 22 of the O.L.R. Act was necessary. The father of the opposite party No.2 filed a case for setting aside the sale deed in the year 1968 and also for eviction of the present petitioner. O.L.R. Case No.16/84 was disposed of after giving opportunity of hearing to the present petitioner thereby declaring the sale deed as void and further holding that since the present petitioner has perfected right by way of adverse possession and the actual possession being taken place prior to the commencement of the O.L.R. Act dismissed the proceeding as not maintainable. The present petitioner appearing in the O.L.R. proceeding contested the proceeding on the premises that one Paitu Ganda @ Tanti sold the case land to the present petitioner and his brother late Ratnakar Panda and Bhagabatia Panda. Present petitioner possessed the same since that date. Present petitioner also alleges that one Sudam Buda created trouble claiming that he had purchased the case land on 19.1.1957 though he was never in actual physical possession of the case land. It is only for this disturbance the present petitioner asked for a fresh sale deed. Consequently, sale deed of the year 1968 was created. 3. Under the premises, since the petitioner was in possession of the land since 3.1.1951 the present petitioner claimed his right otherwise by way of adverse possession. 4. Challenging the final order passed in O.L.R. Case No.16/84 son of late Sansara Ganda preferred an appeal which was registered as O.L.R. Appeal No. 23 of 1994. 3. Under the premises, since the petitioner was in possession of the land since 3.1.1951 the present petitioner claimed his right otherwise by way of adverse possession. 4. Challenging the final order passed in O.L.R. Case No.16/84 son of late Sansara Ganda preferred an appeal which was registered as O.L.R. Appeal No. 23 of 1994. This appeal was disposed of considering the rival contentions of the parties thereby declaring that the present petitioner has no right by way of adverse possession and also directed for eviction of the petitioner. This order has also been challenged by way of Revision. The Revisional Authority confirmed the order of the appellate Authority. Challenging both the impugned orders the petitioner even though admitted that the sale deeds were void but by virtue of his long possession since 1951, he had perfected right over the disputed property by way of adverse possession. 5. Parties admitted that the sale deeds are void, thus now the sole question remained to be determined is as to whether the petitioner has perfected right by way of adverse possession over a land belonging to the Scheduled Caste. After going through the pleadings made by the parties and the observations made by both the Appellate Authority as well as the Revisional Authority, this Court finds that both the Authorities taking into consideration the possession of the petitioner have observed that the petitioner has failed in establishing the long permissive possession so as to claim right by way of adverse possession. For the concurrent findings of the fact by both the Appellate Authority as well as the Revisional Authority, this Court finds no scope for interfering in the judgment in exercise of power under Article 227 of the Constitution of India. Further Law as has been enunciated in AIR 2004 (SC) 3782 , no claim by way of adverse possession is maintainable in respect of land belonging to a Tribe. Thus, the claim of the petitioner that he has acquired right by way of adverse possession is also not legally permissible. 6. Now coming to decide the question of eviction for petitioner’s possessing the land unlawfully and having raised certain construction over the disputed land, this Court is now to proceed for appropriate relief in the matter. Thus, the claim of the petitioner that he has acquired right by way of adverse possession is also not legally permissible. 6. Now coming to decide the question of eviction for petitioner’s possessing the land unlawfully and having raised certain construction over the disputed land, this Court is now to proceed for appropriate relief in the matter. In deciding similar issue Hon’ble Apex Court in the case in between Amrendra Pratap Singh vs. Tej Bahadur Prajapati and others and as reported in AIR 2004 (SC) 3782 while holding claim of right by way of adverse possession as against a Scheduled Tribe is impermissible but however, considering that there has been some development in between in paragraph 32 directed as follows :- “32. The appeal is allowed. The judgment of the High Court is set aside. The case is remanded to the trial Court for decision in accordance with the following directions:- (1) The trial Court shall find if an undisputed or proved map of the land belonging to the plaintiff-appellant demarcating the area encroached upon by defendant-respondent No.1 is available on record, and if so, the same shall be accepted and made a part of the decree; if not, the trial Court shall appoint an Advocate-Commissioner assisted by a person proficient in survey to draw up a map of the plaintiff-appellant’s land and demarcate specifically therein the area encroached upon by defendant-respondent No.1. (2) The trial Court shall determine, after hearing the learned counsel for the parties and if necessary by recording additional evidence, whether a decree for demolition of the construction, made by defendant-respondent No.1, and specific restoration of possession to the plaintiff-appellant, is called for. In the alternative the trial Court shall determine if, in spite of the encroachment having been proved, a decree for the award of suitable compensation in lieu of demolition and restoration of possession would be more appropriate relief. (3) In the event of the trial Court forming an opinion in favour of awarding compensation the same shall be assessed by reference to the date of this judgment. The payment of compensation, as quantified by the trial Court, shall be a condition precedent for condoning the encroachment and unauthorized construction of the defendant-respondent No.1.” 7. (3) In the event of the trial Court forming an opinion in favour of awarding compensation the same shall be assessed by reference to the date of this judgment. The payment of compensation, as quantified by the trial Court, shall be a condition precedent for condoning the encroachment and unauthorized construction of the defendant-respondent No.1.” 7. Under the circumstances, even though this Court is inclined to interfere in the impugned judgments passed by the Appellate Authority as well as the Revisional Authority fully but taking into consideration the direction of the Hon’ble Apex Court in such contingency to the limited extent of declaring the eviction of the petitioner from the land over which construction is already made though illegal but following the direction given by the Hon’ble Apex Court in the judgment supra, directs the Tahasildar to demarcate the area encroached upon by the present petitioner by undertaking construction and residing thereon and to pass suitable order for compensation to the private opposite party to be paid by the petitioner for his occupying the land after undertaking necessary construction. The compensation shall be confined to the extent of land engaged in the constructed area with passage and balance area if any, shall be recovered and restored to the possession of the private opposite party. It is also made clear that the payment of suitable compensation shall be a condition precedent for condoning the encroachment and unauthorized construction of the petitioner. The entire exercise as directed hereinabove, be completed within a period of four months from the date of communication of this order. Parties undertake to co-operate the Tahasildar in adjudicating the matter in terms of direction contained hereinabove. 8. Petitioner is directed to serve certified copy of this order before the Tahasildar within a period of ten days from today for his proceeding in the matter. 9. The writ petition stands allowed partly to the extent indicated hereinabove. Parties to bear their own cost. In view of disposal of this petition, all the pending Misc. Cases arising out of this petition stand disposed of accordingly.