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2017 DIGILAW 1452 (ORI)

Janaka Kuar v. Nabin Chandra Naik

2017-12-14

A.K.RATH

body2017
JUDGMENT : A.K. RATH, J. 1. This is a defendants’ appeal against reversing judgment. 2. Plaintiff-respondent instituted the suit for declaration of right, title, interest and recovery of possession, in the event he has been dispossessed during pendency of the suit. The case of the plaintiff was that he purchased Ac.0.36 dec. of land appertaining to Hamid Settlement Plot No. 682 from the father of the defendants by means of an unregistered sale deed on 20.01.1964 for a consideration of Rs.100/-. He had also purchased plot no.549 measuring Ac.0.43 dec. and plot no. 551 measuring Ac.0.31 dec. for a consideration of Rs.2,000/-by means of an unregistered sale deed on 04.05.1964 from the father of the defendants. After sale, possession of land was duly delivered to him. The suit lands had been mutated in his name in Mutation Case No. 387/70. In the M.S. R.O.R., the suit land has been recorded in his name. The defendants, who have no semblance of right, title and interest over the suit land, trespassed into the suit land. With this factual scenario, he instituted the suit seeking the relief mentioned supra. 3. The defendants entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendants was that their father had not alienated the suit land to the father of the plaintiff. Plaintiff was not in possession of the suit land at any point of time. The specific case of the defendants was that they are members of the scheduled tribe. The father of the plaintiff is a nonscheduled tribe. Any transaction was void ab initio due to want of permission from the competent authority. 4. Stemming on the pleadings of the parties, the learned trial court struck four issues. Both the parties led evidence, oral and documentary, to substantiate their cases. Learned trial court came to hold that for want of permission from the competent authority under Sec.46 of the Central Provinces Tenancy Act, the sale deeds vide Exts.1 and 2 could not confer any title on the plaintiff as the vendors were the members of the scheduled tribe and the vendee was the member of the non-scheduled tribe. It further held that the plaintiff has not perfected title by way of adverse possession. Held so, it dismissed the suit. It further held that the plaintiff has not perfected title by way of adverse possession. Held so, it dismissed the suit. The plaintiff filed T.A. No.6 of 1994 before the learned District Judge, Sambalpur, which was subsequently transferred to the court of the learned Additional District Judge, Sambalpur and renumbered as T.A. No. 6/1 of 1994-96. The learned appellate court held that the plaintiff has perfected title by way of adverse possession. Held so, it allowed the appeal. 5. The Second Appeal was admitted on the following substantial questions of law enumerated in the ground nos. B and E of the appeal memo:- “(B) Whether the suit is maintainable in view of the bar under Sec.67 of O.L.R. Act ? (E) Whether it was proper on the part of the lower appellate court to hold that the period of limitation in case of scheduled tribes was 12 years and not 30 years ?” 06. Heard Mr. Budhiram Dash, learned advocate on behalf of Mr. N.C. Pati, learned advocate for the appellants. None appears for the respondent. 7. Mr. Dash, learned advocate for the appellants submits that the defendants belong to the scheduled tribe. The plaintiff is a nonscheduled tribe. The father of the defendants had not alienated the suit land in favour of the plaintiff. No permission whatsoever was accorded by the competent authorities under the Orissa Land Reforms Act (in short, ‘the O.L.R. Act’) to alienate the suit land. As such, sale deeds were void. He further contends that in one of the sale deeds, valuation of the property was more than Rs.2,000/-. Under Sec.17 of the Registration Act, the registration is compulsory. He further contends that the suit for adverse possession against the property of a non-scheduled tribe is not maintainable. 8. Exts.1 and 2 are unregistered sale deeds. With Regard to Ext.2, the valuation of property was more than Rs.100/-. Thus registration is compulsory under Sec.17 of the Registration Act. Further no permission was accorded by the authorities under Sec.22 of the O.L.R. Act to alienate the suit land. The sale deeds are void. The father of the defendants had initiated a proceeding under Sec.23 of the O.L.R. Act before the Revenue Officer, Jharsuguda. The same was allowed vide Ext.A. The said order has attained the finality. 9. Further no permission was accorded by the authorities under Sec.22 of the O.L.R. Act to alienate the suit land. The sale deeds are void. The father of the defendants had initiated a proceeding under Sec.23 of the O.L.R. Act before the Revenue Officer, Jharsuguda. The same was allowed vide Ext.A. The said order has attained the finality. 9. Sec.58 of the O.L.R. Act provides that any person aggrieved by an order passed by the Revenue Officer under Sec.23-A may prefer an appeal to the prescribed authority. A hierarchy forum was provided on the Statue. Sec. 67 of the O.L.R. Act provides that no Civil Court shall have jurisdiction to try and decide any suit or proceedings so far as it relates to any matter which any officer or other competent authority is empowered by or under this Act to decide. Notwithstanding the bar contained in Sec.67 of the O.L.R. Act, the Civil Courts have jurisdiction to examine into the cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure as held in Secretary of State v. Mask & Co., AIR 1940 Privy Council 105. But in the instant case there is no such prayer. 10. In Amrendra Pratap Singh (Supra), the apex Court held that:- “22. What is adverse possession? Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition 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 and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. 23. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, 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. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, 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 property and thus amounts to 'transfer of immovable property' in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section. 28. xxx xxx xxx A tribal may acquire title by adverse possession over the immovable property of another tribal by reference to Para 7-D of the Regulations read with Article 65 and Se. 27 of the Limitation Act, 1963, but a non-tribal can neither prescribe nor acquire title by adverse possession over the property belonging to a tribal as the same is specifically prohibited by a special law promulgated by the State legislature or the Governor in exercise of the power conferred in that regard by the Constitution of India. A general law cannot defeat the provisions of a special law to the extent to which they are in conflict; else an effort has to be made at reconciling the two provisions by homogenous reading.” 11. The ratio in the case of Amrendra Pratap Singh (Supra) applies with full force to the facts of this case. On an anatomy of pleadings and evidence, both oral and documentary, learned trial court held that the plaintiff has not perfected title by way of adverse possession. But then, the learned appellate court did not delve into the matter and came to an abrupt conclusion that the plaintiff has perfected title by way of adverse possession. The finding of the learned appellate court is perverse. The substantial questions of law are answered accordingly. 12. A priori, the judgment and decree of the learned appellate court are set aside. The appeal is allowed. Consequentially, the suit is dismissed. There shall be no order as to costs.