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2017 DIGILAW 602 (ORI)

Mangru Oram v. Abdul Razak (dead), his LRs.

2017-05-19

D.DASH

body2017
JUDGMENT : 1. These two appeals arise out of the judgment and decree passed by learned Subordinate Judge, Rourkela (as it was then) in Title Suit No. 29 of 1979. 2. It is pertinent to mention at this stage:- (I) The appellant nos. 3 to 5 in the appeal under above Item (A) are the defendant nos. 3 to 5 in the trial court. The legal representatives of original defendant no.2 already on record are also the appellants. One of them i.e. appellant no. 2 has died during pendency of this appeal. Since her legal representatives are already on record, her name has been expunged as dead. Those legal representatives of original defendant no. 2 had been brought on record during the trial of the suit. The original plaintiff who had been arraigned as respondent no. 1 in this appeal having died during the pendency of this appeal now his legal representatives are the respondent nos. 1(a) to 1 (f). Appellant no. 4 was the defendant no. 4 in the trial court and he having died during this appeal, his legal representatives are on record as appellant nos. 4(a) to 4(e). Appellant no. 5 having died during pendency of this appeal, his legal representatives have been brought on record as respondent nos. 5(a) to 5 (d). Respondent no. 2 having also died during pendency of the appeal, his legal representatives have been substituted as respondent nos. 2(a) to 2(c). The original defendant no. 6 who had been arraigned as respondent no. 4, has also died during the appeal and his legal representatives are respondents 4(a) to 4 (d). (B) The appeal under above item (B) has been filed by the original defendant no. 6 and he having died during the appeal, his legal representatives are now pursuing the same. There is thus, commonality of the parties, the dispute as well as the questions of law in both the appeals. For this reason, these appeals were heard analogously and are being disposed of by this common judgment. 3. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 4. The suit has been filed for declaration of title, confirmation of possession, in the alternative for recovery of possession with further prayer for issuance of permanent injunction restraining the defendant nos. 4. The suit has been filed for declaration of title, confirmation of possession, in the alternative for recovery of possession with further prayer for issuance of permanent injunction restraining the defendant nos. 7 to 9 from evicting the plaintiff from the suit land and further restraining the other defendants from taking possession of the suit property. The suit has been decreed declaring the title of the plaintiff and permanently injuncting the defendants by restraining them from taking over the possession of the suit property and with further direction to defendant nos. 5 and 6 to give up possession of their respective purchased land within a time frame and on failure, the plaintiff to be at liberty to take possession through the process of the court. 5. The plaintiff’s case is that the suit property described in the schedule of the plaint originally belonged to one Marchia Oram, the defendant no. 2. It is stated that he had alienated the same in favour of the plaintiff on 22.3.51 for a consideration of Rs.95/- and had delivered possession of the same to the plaintiff purchaser. It may be stated that this document projected by the plaintiff for the purpose of establishing his claim of acquisition of title and coming into possession over the suit land has been proved and marked as Ext.1. So the plaintiff claims to have acquired title through said transaction and also by remaining in possession over the suit property as such since then as its owner by exercising all such rights of ownership thereof. In view of that in the alternative, title over the suit land is said to have been perfected by way of adverse possession. It has been pleaded that in the prefinal stage of the hal settlement operation in the ‘Parcha’, the name of the plaintiff had been indicated in the relevant column meant for the owner. But ultimately, the plots have gone to be recorded in the name of Marchia Oram along with three others, namely Surendra Singh, Bakshi Singh and original defendant no.5. Said Surendra Singh and Bakshi Singh are not parties to the suit. But ultimately, the plots have gone to be recorded in the name of Marchia Oram along with three others, namely Surendra Singh, Bakshi Singh and original defendant no.5. Said Surendra Singh and Bakshi Singh are not parties to the suit. The plaintiff has further pleaded that after entering into possession of the suit land, he demolished the cowshed standing over it in the year 1959 and constructed a pucca building consisting of ten shop rooms and let those out on rent to different persons by inducting them as tenants therein. Respondent no. 7 who is the Sub-Divisional Officer of the area initiated a suo-moto proceeding under Odisha Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (in short, hereinafter, called as “the Regulation-2 of 1956”). This initiation of the suo-moto proceeding was on the ground that the plaintiff has been in illegal possession over the suit property belonging to Marchia Oram who is a member of the Scheduled Tribe in contravention of the provisions of the Regulation-2 of 1956. Finally, in the said proceeding, on 6.9.66, the order of eviction was passed (this order has been admitted in evidence and marked Ext. 2 same as Ext.C/1). The plaintiff assails this order saying that it has been passed ex parte without affording the opportunity of hearing. So when it came to the knowledge on 28.3.78, he moved for rehearing of the case by recalling the ex parte order. That move did not succeed. The plaintiff then carried Revenue Appeal No. 16/78 which also stood dismissed. The plaintiff though thereafter had knocked the door of the High Court in OJC No. 889 of 1979, it was ultimately withdrawn. When the position stood thus, the plaintiff came to file the suit asserting the said transfer of suit land by Marchia Oram to be prior to the coming into force of the Regulation- 2 of 1956 and on that basis it is stated that the proceeding lacked legal foundation and thus vitiated. Further claim has been made that ‘Oram’ being not a member of the Scheduled Tribe, the orders of said proceeding are nonest in the eye of law being without authority as the initiation of the proceedings were bad and those had no legs to stand. 6. The defendant nos. Further claim has been made that ‘Oram’ being not a member of the Scheduled Tribe, the orders of said proceeding are nonest in the eye of law being without authority as the initiation of the proceedings were bad and those had no legs to stand. 6. The defendant nos. 2 to 4 in their written statement while traversing the plaint averments have pleaded that the suit land belonged to the ancestors of defendant nos. 1 to 4 and on partition amongst them, it had fallen to the share of the father of defendant no. 2. On his death, the property came to be devolved upon Marchia Oram, the defendant no. 2 and then it is said to have so come to the hands of the defendant nos. 2(a) to 2 c). The factum of alienation of suit property in favour of the plaintiff as pleaded in the plaint as also the delivery of possession, pursuant to the said transaction by executing document Ext. 1, have been specifically denied. The claim of title of the plaintiff founded upon Ext. 1 and also in the alternative by way of adverse possession has thus been refuted. It is further stated that Marchia Oram, the defendant no. 2 being an illiterate adivasi since most of the time used to remain in a drunken state, he had been exploited by the plaintiff in deceitfully and fraudulently obtaining/creating the document. The ‘parcha’ initially issued during hal settlement operation is also attacked as to have been so created by the plaintiff surreptitiously with the help of others associated in the process and when that mischievous act of the plaintiff came to be known, suitable steps being taken, the said land has been finally recorded as it presently stands and thus the illegal move got foiled. Defendant no. 1 claims to have been in possession of the suit land and kachha house standing over it which was constructed by him through its user as a cowshed. Next, it is specifically pleaded that in the year 1959, the plaintiff being permitted by Marchia Oram had constructed the shop rooms over the suit land for being let out on rent by inducting tenants therein. The understanding was that the plaintiff would induct tenants and collect monthly rent on behalf of the defendant no.2 as he would be constructing those shop rooms. The understanding was that the plaintiff would induct tenants and collect monthly rent on behalf of the defendant no.2 as he would be constructing those shop rooms. It is however alleged that the plaintiff started misappropriating the rent by collecting the same from the tenants and did never produce any account either showing the expenses that he met for the purpose of the constructions put in place or the details of the collection of rent from the tenants. In this way, it is again stated that the plaintiff cheated the defendant no. 1. Allegations have remained that the plaintiff had managed to obtain some receipts from Marchia Oram, with his LTI being put over there by duping him. In the said written statement entertainment of the suit has been questioned in saying that it is barred by the provisions of Regulation 2 of 1956. It is placed that on the face of the eviction orders of the competent authority in exercise of power under Regulation 2 of 1956, those are no more open to challenge in a suit whose cognizance is said to have been impliedly barred. These defendants have then supported the case of defendant nos. 5 and 6 that they have purchased the portion of the suit land with due permission of the competent authority under the Regulation 2 of 1956. It is stated that those defendant nos. 5 and 6 have constructed their residential house over the respective land which they have purchased. 7. The defendant nos. 5 and 6 sail in the same ship with the above defendants and assert their claim over the suit property by virtue of their purchase from the owner with prior permission of the competent authority as required under the Regulation 2 of 1956. They while reiterating the stand taken by defendant nos. 2 to 4, finally want to fix the anchor of the ship at the bay. 8. The defendant nos. 7 to 9 in their written statement have urged that the Civil Court lacks jurisdiction in entertaining the suit and it has no power to sit over to judge the legality and propriety of the order passed in the proceeding under Regulation 2 of 1956, which is barred under law. 8. The defendant nos. 7 to 9 in their written statement have urged that the Civil Court lacks jurisdiction in entertaining the suit and it has no power to sit over to judge the legality and propriety of the order passed in the proceeding under Regulation 2 of 1956, which is barred under law. They have also taken the plea of limitation standing in the way of entertaining the suit which is said to have been filed after expiry of tweleve years since the order of eviction. They have asserted that the plaintiff had been given sufficient opportunity in raising his claim and to thwart the order of eviction passed in the said proceeding under the Regulation 2 of 1956 and then also, he having taken recourse of challenging the said orders in appeal and by carrying other proceeding has failed. Therefore, the suit as laid for the reliefs claimed is attached as not maintainable in the eye of law. 9. The trial court in view of such rival pleadings has framed in total seventeen issues which are as under:- “1. Whether the order of eviction of the plaintiff from the suit land and premises in Revenue Misc. Case No. 7 of 66 before the court of the SDO is illegal and without jurisdiction and there is violation of natural justice? 2. Whether the plaintiff has title over the suit schedule ‘A’ land? 3. Is the suit maintainable? 4. Whether the D-2 sold the suit land to the plaintiff on 22.3.1951? 5. Whether the sale deed dtd. 22.3.51 is fabricated and invalid? 6. Whether the plaintiff has perfected his title over the suit land by adverse possession? 7. Whether the D-6 has title over 0.05 acres of suit land after purchasing the same from D-5? 8. Whether D-5 purchased 0.10 acres of suit land from D-2 by means of registered sale deed? 9. Whether this court has no jurisdiction to try the suit? 10. Is there any cause of action? 11. Is the suit barred by limitation? 12. It is suit under valued? 13. To what relief, if any, the plaintiff is entitled? 14. Whether the sale deed on the plaintiff’s favour is genuine or fraudulent? 15. Whether the sale deed of suit property in plaintiff’s favour is illegal or invalid due to contravention of regulation II of 56? 16. Whether the suit is barred by res judicata? 17. 13. To what relief, if any, the plaintiff is entitled? 14. Whether the sale deed on the plaintiff’s favour is genuine or fraudulent? 15. Whether the sale deed of suit property in plaintiff’s favour is illegal or invalid due to contravention of regulation II of 56? 16. Whether the suit is barred by res judicata? 17. Whether the suit is bad for non-joinder of necessary parties? 10. Parties have led both oral and documentary evidence in support of their respective case and to establish their claims. The trial court first has taken up for decision in proceeding to answer four issues together and those concern with the claim of title over the suit land as projected by the plaintiff; the genuineness and then the validity or otherwise of the purported document of sale dtd. 22.3.51 (Ext.1); the alternative case projected by the plaintiff as regards perfection of title over the suit land by way of adverse possession. The course adopted is found to be right in view of the fact that those are intertwined. 11. The trial court has held that Ext. 1, the document proved from the side of the plaintiff does not go to confer title over the suit land in favour of the plaintiff and as such does not clothe him with the ownership rights thereof after having held Ext. 1 to be not a fabricated document negating the challenge to it on that ground by the defendants. However, while holding that the terms etc. of such document are not admissible in view of the provision of section 91 of the Evidence Act, it has of course been held that the same having been impounded and stamp duty etc. having been paid, its use is legally permissible to the extent of being looked into for collateral purpose when the plaintiff is estopped from explaining away ambiguity, if any, in that Ext. 1. 12. As regards the Civil Court’s jurisdiction, in facts and circumstances of the case as to whether the order of eviction as has been passed would stand in the way of entertainment of the suit; the plea of limitation taken by the defendant no. 7 to 9, the answers have been recorded in favour of the plaintiff. 1. 12. As regards the Civil Court’s jurisdiction, in facts and circumstances of the case as to whether the order of eviction as has been passed would stand in the way of entertainment of the suit; the plea of limitation taken by the defendant no. 7 to 9, the answers have been recorded in favour of the plaintiff. Finally, the trial court has found the plaintiff to have acquired title over the suit land by virtue of adverse possession having remained in possession of the suit land from the year 1951 onwards and that the prescribed period to be even getting completed by the time the suo moto eviction proceeding had come to be initiated. In view of that, the trial court has held the defendant nos. 5 and 6 to have not been clothed with any title in respect of the suit land by virtue of their later purchases as they claim. The legal objection that the suit is barred by non-joinder of necessary party i.e. other purchaser namely, Surender Singh and Bakshi Singh has been over ruled. Specific finding has been recorded that the plaintiff has perfected his title over the suit land by way of adverse possession in answer to the issue no. 6. The separate issue on the point of limitation has been negatived. Upon extensive and detail analysis of evidence as is seen, the trial court at its wisdom has also arrived at a satisfaction that the plaintiff had no opportunity to defend the proceeding under the Regulation 2 of 1956 and stake his claim for which those orders have been taken as vulnerable being passed in violation of fundamental principle of justice. 13. Issue nos. 7 and 8 relating to the purchase of the land measuring Ac. 0.10 decimals by defendant no. 5 and Ac.0.05 decimal by defendant no. 6 from out of the suit land have been answered against them and in favour of the plaintiff. The challenge to the valuation of the suit to be on a lower side and thus meant to serve oblique purpose has been whittled down and lastly the trial court has found the cause of action to have so arisen for filing of the suit. The suit has accordingly been decreed. The challenge to the valuation of the suit to be on a lower side and thus meant to serve oblique purpose has been whittled down and lastly the trial court has found the cause of action to have so arisen for filing of the suit. The suit has accordingly been decreed. The order in the judgment (as relevant for the purpose) is as follows:- “xx xx xx xx xx xx xx xx The title in respect of suit land is declared in favour of the plaintiff and defendant nos. 7 to 9 are hereby permanently restrained from evicting the plaintiff from the suit land and defendants 1, 2(a) to D-6 are also hereby permanently restrained from taking possession of the suit land from the plaintiff. Defendants No. 5 and 6 to give to their possession of the respective lands and houses in favour of the plaintiff within two months hence, failing which the plaintiff to taken possession of the same through court.” 14. Assailing the finding recorded by the trial court as unsustainable both in law and fact, Mr.R.K.Mohanty, learned Counsel for the appellants has argued at length. According to him, in deciding the appeal, the focus has to be on the following points:- (a) the maintainability of the suit under section 9 of the Code of Civil Procedure by the Civil Court to decide the correctness of the order passed by the competent authority under the Regulation 2 of 1956; (b) legal scanning of the correctness of the finding of the trial court in holding that the eviction proceeding initiated and culminated under the provisions of Regulation 2 of 1956 to be having no such impact in the matter of decision of the suit in answering the claim of the plaintiff which finding of the trial court; whether the same is contrary to the parameters laid down and if so it successfully passes through the tests laid down by the Full Bench decision of this Court in case of Mangulu Jal and others v. Bhagban Rai :AIR 1975 Orissa 219 favouring the view taken by the trial court; (c) whether it is permissible to hold in favour of the claim of the plaintiff as laid; even holding the eviction proceeding to be null and void on the basis of the finding since it admits of no mistake that Ext. 1 even though taken as merely a source of title, it cannot go to confer any such right in respect of the property in question upon the plaintiff; and (d) the correctness of the finding of the trial court in holding the plaintiff to have perfected his title by way of adverse possession. 15. Mr. A.K.Sahu, learned counsel for the respondent nos. 1(a) to 1 (f) in this connection places that much of focus need not be given upon the points at (a) & (b), if his contention of axing the very root of those proceedings under the Regulation 2 of 1956 questioning its initiation both touching basic facts and law leading to say that the proceedings are nonest in the eye of law would so stand accepted by this Court. 16. Learned Senior Counsel for the appellants submits as follows:- (I) the trial court having came to a conclusion that Ext. 1, the so-called unregistered sale deed has not conferred title in respect of the suit land upon the plaintiff and the terms and conditions embodied therein cannot be taken into consideration being in-admissible under section 91 of the Evidence Act, it has misdirected itself in considering the same again for collateral purpose right from looking at the factum of delivery of possession of the suit land by defendant no. 1 to the plaintiff and his continuance in possession, pursuant to the same; (II) the exercise of the trial court in going to decide the validity of Ext. 1 is a futile one, in the facts and circumstances of the case as even accepting it to be genuine, the same has nothing to do with the transfer of title concerning the suit land. The finding of the trial court in discarding the orders of eviction passed in the proceeding under Regulation 2 of 1956 which have attained their finality from consideration by sitting over those as if upon appeal is erroneous. The trial court could not have gone to decide the legality and propriety of those orders in so assuming the jurisdiction. The finding of the trial court in discarding the orders of eviction passed in the proceeding under Regulation 2 of 1956 which have attained their finality from consideration by sitting over those as if upon appeal is erroneous. The trial court could not have gone to decide the legality and propriety of those orders in so assuming the jurisdiction. The facts and circumstances of the case being taken into account in their proper perspective, they do not successfully pass through any of the acid tests as laid down by the Full Bench of this Court in case of Mangulu Jal (supra) favouring maintainability of the suit by overcoming the legal bar either express or implied; the jurisdiction in any event is impliedly barred and also the decision of the competent authority passing orders under the provision of Regulation 2 of 1956 operates as res judicata in view of the Explanation VIII to Section 11 of the Code and hence the finding of the trial court on that score is thus untenable; (III) the suit being barred by limitation even if computed from the time the plaintiff came to know about the order of eviction, the finding of the trial court is unsustainable; and (IV) the trial court’s finding that the plaintiff has perfected his title over the suit land by adverse possession does not stand to scrutiny both factually and in law. The plaintiff has not pleaded the required ingredients for said doctrine of adverse possession coming to the aid of his possession of the suit land since 1951 to 1966 in perfecting title. All those ingredients having not been pleaded and satisfactorily proved, there cannot be a finding in favour of perfection of title over the suit land by the plaintiff and the answer recorded by the trial court is erroneous which has to face the reversal going against the plaintiff, being set at naught. 17. Learned counsel for the respondent no. 1 (a) to 1 (f) supporting all the findings of the trial court as also reiterating the reasons assigned thereto as well as the ultimate decision in decreeing the suit, granting the reliefs as aforestated further submits that:- (i) the defendant no. 1 being not a member of Scheduled Tribe, the trial court ought not to have held that Ext. 1 (a) to 1 (f) supporting all the findings of the trial court as also reiterating the reasons assigned thereto as well as the ultimate decision in decreeing the suit, granting the reliefs as aforestated further submits that:- (i) the defendant no. 1 being not a member of Scheduled Tribe, the trial court ought not to have held that Ext. 1 did not confer the title in respect of the suit land upon the plaintiff when it has arrived at a satisfaction with regard to its genuineness and delivery of possession pursuant to it upon just and proper analysis of evidence. According to him, the terms and conditions of Ext. 1 under the available circumstances ought not to have been held to be in- admissible. The provision of the Regulation 2 of 1956 having got absolutely no application to the case so as to term the possession of the plaintiff to be in contravention of the provisions of the Regulation 2 of 1956 conferring jurisdiction to the competent authority to initiate the suo-moto proceeding for eviction, the orders passed therein are nullity being without jurisdiction and authority. Banking upon that it is contended that an order being nullity and thus not having the force whatsoever in the eye of law can be so set up at any stage by the party/parties, feeling aggrieved by it and who has not accepted or has just ignored the same. Therefore, it is said that in so far as the instant case is concerned, no such examination is called for to decide as to the principles of law laid down by the Full Bench of this Court in case of Mangulu Jal (supra) being applied and facts and circumstances of the case being so placed to undergo the tests laid down whether resultantly provide the answer in favour of assumption of jurisdiction by the Civil Court or its ouster. 18. The ouster of the jurisdiction of the Civil Court in hearing the present suit for its decision as is urged for standing in the way of granting the reliefs to the plaintiff is founded upon the prior orders passed in the matter of proceeding under the Regulation 2 of 1956 in those forums prescribed by the said Regulation. 18. The ouster of the jurisdiction of the Civil Court in hearing the present suit for its decision as is urged for standing in the way of granting the reliefs to the plaintiff is founded upon the prior orders passed in the matter of proceeding under the Regulation 2 of 1956 in those forums prescribed by the said Regulation. The suo moto proceeding under the Regulation-2 of 1956 had been initiated based on a report of unauthorized possession of the immovable property by the plaintiff belonging to the member of Scheduled Tribe in the Scheduled Area. In the present case, admittedly, the property belongs to Marchia Oram. It is said that he is a member of Scheduled Tribe. The point was not so seriously taken up before the trial court to make necessary examination as to whether ‘Oram’ comes within the list of Scheduled Tribe. The trial court has therefore not delved upon it and has proceeded in the direction to examine the legality of sale in view of Merged States (Laws) Act, 1950 providing a similar provision restricting transfer of immovable property by a member of aboriginal tribe which was then in force. Next assuming the proceeding under Regulation 2 of 1956 as legally tenable, it has gone to say that the order was in violation of fundamental principles of justice. The law holding the field has been declared by the Hon’ble Supreme Court in case of State of Maharashtra vrs. Milind and others: (2001)1 SCC 4 which is being consistently followed throughout the Country. It has been held that:- “A Caste is a Schedule Caste or Tribe is a Schedule Tribe only, if they are included in the President's Orders issued under Article 341 and 342 for the purpose of consideration in exercise of the power vested in him. The President has issued the Constitution (Schedule Caste) Order 1950 and the Constitution (Schedule Tribes) Order, 1950. Subsequently some Orders were issued under the said Articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued by Amendment Act passed by the Parliament”. Referring to the debate of the Constituent Assembly, the explanation of Dr. B.R Ambedkar has been quoted in extensio. Subsequently some Orders were issued under the said Articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued by Amendment Act passed by the Parliament”. Referring to the debate of the Constituent Assembly, the explanation of Dr. B.R Ambedkar has been quoted in extensio. All other decisions of the Apex Court rendered by then have also been considered and finally it has been said that such Orders must be read as it is. It is not even permissible to say that Tribe, part of group of any Tribe or tribal community is synonymous to the one mentioned in the Order, if they are not so specifically in it. 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 even any Tribe or Tribal community is included in the general name even though it is not specifically mentioned in the concerned entry in the Order. Para-36 of the judgment being relevant be also stated as under:- “In the light of what is stated above, the following position emerge: 1. 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 entry concerned in the Constitution (Scheduled Tribes) Order, 1950. 2. 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. 3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe nor tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by the Parliament by law and by no other authority. 4. In other words, any tribe nor tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by the Parliament by law and by no other authority. 4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342. 5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda vs. Anirudh Patar & others and Dina v. Narain Singh did not lay down law correctly in stating that the enquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in evidence can be let in, in the matter.” Tribe ‘Oram’ does not find mention in the list of Scheduled Tribe as spelt out in the notification issued under clause-1 of Article 342 of the Consitution. The entry contains ‘Oraon’ and to it later on ‘Dhangar’ & ‘Uran’ have come to be added in the year 2003. So examining the instant case through the legal spectrum as above, the very initiation of suo moto proceeding under the provision of Regulation-2 of1956 in respect of the land in question against the plaintiff is found to be without jurisdiction and authority. The first and foremost condition for initiation of a proceeding under the Regulation 2 of 1956 is that the immovable property must belong to a member of Scheduled Tribe so that the authority can proceed suo moto to recover the same from the possession of a person not belonging to Scheduled Tribe finding it to be unauthorized being in contravention of the provisions of Regulation 2 of 1956. The jurisdiction and authority only comes then. In view of above, the orders thus passed in those proceedings being held nullity, the conclusion becomes that the authorities could not have been seized of the proceeding because of lack of jurisdiction as the provisions of law under which the jurisdiction had been so assumed were not at all coming into play in respect of the subject matter. In such a situation the orders being without jurisdiction and authority of law, are nonest. In such a situation the orders being without jurisdiction and authority of law, are nonest. Therefore, such invalidity going to the root of inherent jurisdiction can be set up in any proceeding whenever it is sought to be enforced or is being acted upon as a foundation of a right or when the affected person so feels of being used or so pressed into service detrimental to his claim, right or interest. This practically puts an end to the controversy relating to the lack of jurisdiction or ouster of the jurisdiction of the Civil Court as urged by learned senior counsel for the appellants to entertain the suit as laid by the plaintiff for declaration of his right, title and interest. Without even now going to examine further as to the sustainability of the reasons assigned by the trial court in holding that the jurisdiction of the Civil Court is not ousted and without addressing the matter as to whether the tests laid down in case of Mangulu Jal (supra) are satisfied in the facts and circumstances of the case in hand, the answer to the issue no. 1 comes out in favour of assumption of the jurisdiction by Civil Court. 19. Going to examine the sustainability of the findings rendered by the trial court in respect of issue nos. 2, 4, 5 and 14 taken up together for decision, there remains no disagreement on the point that upon these findings the fate of the suit hangs in view of the fact that the defence of ouster of the jurisdiction of the Civil Court has been nagated. The claim of title over the suit land by the plaintiff is founded upon a document which is a deed of sale found embodied on a plane paper admitted in evidence and marked Ext. 1 which is dated 22.3.1951. The plaintiff claims title over the suit land to have been conferred upon him by virtue of this document coupled with possession of the suit land which is said to have been delivered pursuant to the same. The trial court appears to have rightly taken the view that by this Ext. 1 itself, the title over the suit land cannot be said to have been conferred upon the plaintiff. The trial court appears to have rightly taken the view that by this Ext. 1 itself, the title over the suit land cannot be said to have been conferred upon the plaintiff. Nonetheless, it has said that the said document though does not confer title in respect of the suit land upon the plaintiff, it can be looked into for collateral purposes. The contention of learned Senior Counsel for the appellants against the said view is that the trial court in saying so has misdirected itself that when the document cannot be looked into for the purpose for which it is projected; how is that it can be looked into for any other purposes happening consequential thereto and pursuant to the same. The consideration involved in the said transaction as claimed by the plaintiff, to be a sum of Rs.95/-. Provision of section 54 of the Transfer of Property Act states that in case of transfer of tangible immovable property of the value of less than Rs.100/- such transfer may be made either by registered instrument or by delivery of the property. In this case the sale is claimed under the plane paper deed, Ext.1 and then it is said that pursuant to it, the possession had been delivered. So when the sale is not merely by delivery of property on receipt of agreed consideration, an instrument being taken to evidence the same, the said instrument has to be a registered one. In the instant case, reading Ext.1 reveals as if the property has been transferred by way of sale through the same. Section 49 of the Registration Act however provides that when document is required under the Act to be registered, sale will not have any effect over the immovable property concerned therein unless it has been registered, provided that an unregistered document having the affect over the immovable property which is required to be registered in view of the provision of the Transfer of Property Act may be received as evidence of any collateral transaction not required to be effected by registered instrument. Thus, when Ext. 1 in the case cannot be looked into for the purpose of conferring the title over the suit land upon the plaintiff, nonetheless it can be looked into for collateral purposes meaning thereby any purpose except those of creating, declaring, assigning, limiting or extinguishing right to immovable property. Thus, when Ext. 1 in the case cannot be looked into for the purpose of conferring the title over the suit land upon the plaintiff, nonetheless it can be looked into for collateral purposes meaning thereby any purpose except those of creating, declaring, assigning, limiting or extinguishing right to immovable property. It has been the settled position of law that terms and conditions as indicated in the document are not collateral purposes within the meaning of the provision of section 49 of the Registration Act. In that view of the matter, I find that the trial court has not misdirected itself in holding that this document Ext. 1 can be looked into for collateral purposes after having said it to have not created title in respect of the suit land and thus in finally holding that the factum of delivery of possession as is claimed under this Ext. 1 followed by its continuance can be accepted if so corroborated by other evidence and there arises no bar for deliberating upon the same and delving on that aspect. 20. Coming to the genuineness of the document Ext. 1 which has also been attacked to be a fraudulent one, certainly the burden of proof is upon the parties who challenge the same more particularly viewing the fact that it is a thirty years old document. Fact remains that no such detail particulars have been pleaded in the written statement as is required under the provision of order 6 rule 4 of the Code of Civil Procedure. Moreover, the plaintiff being examined as a witness on his behalf although has been put to searching cross-examination, no such material has been brought out from his lips indicating any such instances of perpetration of fraud and practice of undue influence in the matter of creation of the document Ext. 1. The evidence of the plaintiff as per his case in support of Ext.1 stands corroborated by the evidence of P.W. 6 who is the scribe of the document. Besides the same, it has also been proved that two attesting witnesses who were the signatories to that Ext.1 are dead which has come as the explanation for their non-examination, thus leaving no room to draw any such adverse inference. The LTI of defendant no. 2 appearing in the Ext. Besides the same, it has also been proved that two attesting witnesses who were the signatories to that Ext.1 are dead which has come as the explanation for their non-examination, thus leaving no room to draw any such adverse inference. The LTI of defendant no. 2 appearing in the Ext. 1 is not said as forged in the written statement and on the contrary it is said that the document has been brought into being by taking advantage of the drunkenness of the executants. The trial court has repelled the submission of learned counsel for the defendants before it that the document is surrounded with suspicious circumstances. Firstly, it has been said that the attesting witnesses cannot be said to be strangers to the locality although there remains no such bar that the stranger to the locality where the land situate cannot be an attesting witness. The writing on Ext. 1 being made by unlicensed deed writer, the same has not been taken as a ground to entertain any suspicion over Ext. 1. This Court upon examination of evidence on the score finds all the reason to accord its agreement thereto. Let at this place, the next plea of the defendants be adverted to. It is stated that the defendant no. 2 was a drunkard and taking advantage of that, the document had been obtained. In evidence no such instance has even been cited. The ambiguity relating to the description of the property in Ext. 1 vis a vis other document is found to have been well explained and so also its non-production before other authority on prior occasion as alleged. The trial court as is seen from the judgment after elaborate discussion of evidence on record keeping in view the settled position of law has returned the finding that Ext. 1 is not a fraudulent one and it has not been obtained by undue influence or misrepresentation by overruling all those contentions raised even to entertain doubt finding those to be not of such significance for being taken note of for discarding Ext. 1. This Court also is unable to search out any such material on record to take a different view. 1. This Court also is unable to search out any such material on record to take a different view. Then going to the case of sale of the suit land for consideration of Rs.95/- followed by delivery of possession; when the plaintiff has so deposed on oath, despite lengthy cross-examination, no such material is found to have surfaced to demolish the said evidence. Corroboration on all the material particulars has come from the evidence of P.W. 2 who has stated about the possession of the property of the plaintiff since 1952. This witness has also stated the reasons as to how he could derive said knowledge. Evidence of P.W. 4 also stands to corroborate. The document proved in the case i.e. Ext. 19 which is Khatian prepared by the Rourkela Land Organization in the year 1955 goes to support the above factum of possession when in the said record the name of plaintiff finds place along with defendant no. 2 and his co-sharers. When another set of documents have been proved by the defendants showing that the name of the plaintiff does not so find place, attempt being made to ascertain the correct picture by calling for the original RLO khatian has failed since that document has been found to have been torn at the concerned place of entry. The plaintiff had obtained this document in the year 1979 whereas the document to challenge the same has been obtained in the year 1981-82 which is after the institution of the suit. Ext. 2 is the letter of permission given by the Executive Officer of the Notified Area Council (as it was then) in favour of the plaintiff to construct the building over the suit land which has been described therein. The plaintiff has proved though evidence of having the electric and water connection to the house standing over the suit land and has proved a number of holding tax receipts under Ext.22 series showing payment of holding tax. Besides all these, the parcha has been proved which had come prior to the publication of the final ROR. The ROR although shows that the land has not been recorded in the name of the plaintiff at the final stage, yet from ‘Parcha’ it is gatherable that till that stage, the plaintiff’s name was very much in the picture being so claimed. Admittedly, the subsequent record of right is under challenge. The ROR although shows that the land has not been recorded in the name of the plaintiff at the final stage, yet from ‘Parcha’ it is gatherable that till that stage, the plaintiff’s name was very much in the picture being so claimed. Admittedly, the subsequent record of right is under challenge. The possession of the plaintiff is found to have been reported way back in the year 1969 and a number of rent receipts have been proved which establish that the plaintiff was collecting the house rent from different tenants in respect of different portions of the houses standing over the suit land and under his occupation. The defendant no. 5 himself has stated that he had taken a shop room on rent from the plaintiff in the year 1964-65 on agreement of payment of monthly rate of Rs. 80/- and only thereafter the defendant no. 2 had come to assert the ownership over said room in his occupation. This part of his evidence that the defendant no. 2 had come to claim ownership of the property has been an improvement during trial as has been duly noticed by the trial court. D.W.2 has clearly stated to have taken shop room standing over the suit land on monthly rent from the plaintiff. More important is his further evidence that in spite of claim of ownership being advanced by the defendant no. 2, he continued to pay rent in respect of said shop room in favour of the plaintiff which thus goes to show that he all along recognized the plaintiff as the owner-landlord notwithstanding the claim of defendant no.2 nor even going to make any verification. The trial court has discussed the evidence on record. For some portion of land, State having gone for acquisition, notice had gone to the successors of defendant no. 2. The trial court has found the same to have been getting explained from the record itself that the land under plot no. 461 was not the subject matter of the said acquisition proceeding and when the land under plot no. 451 comprises of 85 decimals in total, the plaintiff’s claim is only over 31 decimals. 2. The trial court has found the same to have been getting explained from the record itself that the land under plot no. 461 was not the subject matter of the said acquisition proceeding and when the land under plot no. 451 comprises of 85 decimals in total, the plaintiff’s claim is only over 31 decimals. Therefore, in the absence of acceptable evidence that the particular land acquired by the State by proving its identity is included in the purchased land of the plaintiff, the same has been held as no circumstance having any such significance in so far as the plaintiff’s claim over the suit land is concerned so as to infer against the plaintiff’s title that had it been the fact by his conduct of maintaining silence during land acquisition proceeding and accepting the payment of compensation to the defendant no.2, he has no more asserted the claim and that his possession was thus not on his own but for and on behalf of the owner. The defendants thus having failed to establish the nexus as aforesaid, there remains nothing to infer as aforesaid. In such state of affair in the pleading and evidence, the finding that the plaintiff has been in possession of the suit land by virtue of the so-called transfer by the defendant no. 2 in the year 1951 for a consideration of Rs. 95/- has been rightly recorded. With the finding that the plaintiff has been in possession of the suit land since in the year 1951 and that the vendor is not a member of Scheduled Tribe as on that day of the said transaction, the question next springs up as to whether such long and continuous possession would enure to the benefit of the plaintiff in recording a finding of acquisition of title by adverse possession. The basic ingredient for the purpose is that the possession of the property in question must commence by asserting as that of its owner and that is established in the case through evidence and other circumstances emanating from evidence providing support. The possession stands undenied at the time of initiation of the proceeding under the Regulation 2 of 1956 in the year 1966-67 and so also thereafter. Besides oral and documentary evidence, further support to the above fact is derived when it is seen that the defendant no. The possession stands undenied at the time of initiation of the proceeding under the Regulation 2 of 1956 in the year 1966-67 and so also thereafter. Besides oral and documentary evidence, further support to the above fact is derived when it is seen that the defendant no. 2 does not deny the factum of possession of the suit land by the plaintiff. Now viewing the case of the defendant no.2 that the plaintiff had been permitted to construct shop rooms and let out those to the tenants to collect the rent and pay to him, it occurs to mind first that ordinarily, such permission like this as the plaintiff is thereby asked to put up permanent constructions over the suit land is not expected and not per se conceivable without evidence of any such compelling circumstance or situation demanding as such. It may be so in the case where parties are close relations but not where they have no such close relationship or dealings. That too the defendant no.2 is not stating further as to whether all such constructions had been permitted or some out of it. He is silent about any of those matters relating to the dealing with said property and especially over the matter of inducting tenant, fixing rent, quantum etc. Its merely said after lapse of long period that the plaintiff did not show anything towards the utilization of the property as promised and its manner of enjoyment. In such state of affair, the presumption as regards the nature of possession has to be that the same was as that of owner. Under the circumstances, the burden of proof is heavily upon the defendants to establish that the possession of the plaintiff was permissive so as to negate the effect of above presumption which is found to have not been discharged. In that view of the matter, the finding on that issue has to run in favour of the plaintiff that he has acquired title over the suit land by adverse possession. The trial court’s finding thus is found to be well in order. 21. The answers to the above issues pave the way for acceptance of the finding returned by the trial court on issue nos. 7 and 8 that the defendant no. The trial court’s finding thus is found to be well in order. 21. The answers to the above issues pave the way for acceptance of the finding returned by the trial court on issue nos. 7 and 8 that the defendant no. 5 and 6 have not acquired any title by virtue of their purchase of portions from out of the suit land after having held the title of the Vendor to have by then been extinguished having no subsisting title to pass on. 22. In the result, the appeals under items (A) and (B) fail. In the facts and circumstances of the case, no order as to cost is passed.