IMPORTANT POINT
Non-tribal cannot acquire title on basis of adverse possession of tribal land transfer of which such land is prohibited by statute.

Headnote:Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956 (Orissa Regulation No. 2 of 1956)-Sections 2(f) and 3-Transfer of any immovable property by a member of a Scheduled Tribe to any one not belonging to Scheduled Tribes to be null and void except where it was with previous consent in writing of competent authority-Appellants, belonging to Scheduled Tribe filed suits that suit land was occupied by respondents forcibly who were non-Scheduled Tribe-Suit dismissed by trial Court on basis of report of Revenue Inspector that petitioner-appellants had not raised objection at the stage of settlement operation-Appellate authority set aside trial Court judgment and decreed suit-High Court held that finding that land belonged to members of Scheduled Tribe was without any evidence or material and that respondents had perfected title by adverse possession as they were in occupation of land since 1958-Appeal-Title by adverse possession of land situated in tribal village by non-trible was impermissible since alienation of such land was prohibited-High Court, without considering all those aspects as considered by appellate Court, concluded about possession and ownership of land in favour of appellants-Impugned order was liable to be set aside and matter remanded. (Paras 7 to 9)

JUDGMENT

Brijesh Kumar, J.-The proceedings of these appeals before this Court arise out of the Revenue Miscellaneous Cases No. 150 to 156 of 1976 filed by the appellants separately against the separate respondents under the provisions of Orissa Regulation No.2 of 1956 before the Project Administrator, I.T.D.A., Parlakhemundie and Addl. District Magistrate, Ganjam in the State of Orissa. The cases were filed by the appellants who belong to Scheduled Tribe of Khariaguda village in Gumma block whereas the respondents who have been impleaded as opposite parties in different cases are Pano Christians of Asharyaguda village. It appears that the land in dispute falls in village Khariaguda which is a scheduled area under the provisions of the Regulation No. 2 of 1956. The claim of the appellants who filed different cases is that the land belongs to them but it has been forcibly occupied by the respondents. The cases were decided in favour of the appellants with a direction for restoration of suit land to them vide order dated 28.2.1979 passed by O.S.D., Parlakhemundie. On appeal, however, the Addl. District Magistrate, Ganjam, Chatrapur, remanded the cases for further inquiry with an observation that the identity of the suit land was to be ascertained in reference to kabala of 5.5.1927 T.S.No. 16/61 with assignment of plot numbers etc. in the said settlement.

2. Before further proceeding with the matter, it would be relevant to mention that the State of Orissa promulgated the Regulation in exercise of power conferred by sub-para (2) of para 5 of the Fifth Schedule to the Constitution, known as the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulation, 1956, known as the Orissa Regulation No. 2 of 1956, to be referred to as such hereinafter. According to clause (f) of Section 2, "Transfer of immovable property" has been defined to mean:

"mortgage with or without possession, lease, sale, gift, exchange or any other dealings with such property not being a testamentary disposition and includes a charge or contract relating to such property."

Section 3 of the Regulation provides that transfer of any immovable property by a member of a Scheduled Tribe to anyone not belonging to a Scheduled Tribe shall be absolutely null and void except where it is with previous consent, in writing, of the competent authority. Sub-section 2 of section 3 also provides that the competent authority may on his own motion order for ejectment of a person in possession in contravention of sub-section (1) of Section 3. Sub-section (1) of Section 3 reads as under:

"3.(1) Notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area, by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority.

(2) xxx xxx xxx"

3. We further find that under sub-section 2 of section 5 even a surrender or relinquishment is deemed to be a transfer of property within the meaning of the Regulation with certain exceptions. It is thus clear that generally subject to certain exceptions, alienation of immovable property by a tribal to a non-tribal is impermissible and it is invalid, null and void.

4. Coming back to the facts of this case, we find that after the remand, the matter was heard and it also transpires that some other parties were also allowed to intervene. The Revenue Inspector who was assigned the job of identification of the plots, submitted his report and also entered into the witness box for his cross-examination. The Trial Court, on considering the report of the Revenue Inspector, observed as under: "....From the above it can be seen that the boundaries indicated by the Revenue Inspector in his cross-examination is nearly co-terminus with the boundary indicated in the kabala of 1927 a

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2004 Supreme(SC) 662

IMPORTANT POINTNon-tribal cannot acquire title on basis of adverse possession of tribal land transfer of which such land is prohibited by statute.

Cases Referred (2)

IMPORTANT POINT
Non-tribal cannot acquire title on basis of adverse possession of tribal land transfer of which such land is prohibited by statute.