Section 5 of the Orissa Regulation 2 of 1956 prohibits the surrender or relinquishment of a holding by a tenant who is a member of a Scheduled Tribe to a landlord unless the landlord settles the holding with another member of a Scheduled Tribe or retains it in his possession or settles it with any other person with the approval of the competent authority.

Judgement

JUDGMENT :- Defendant No. 1 is in second appeal against the affirming decision of the learned District Judge, Koraput in a suit for title recovery of possession or alternatively for recovery of the consideration money paid for the sale.

2. Defendant No. 1. plaintiff alleged, sold the land covered by plots numbers 267, 238, 239 and 482 appertaining to khata No. 137 of village Kenduguda to plaintiff under a registered sale deed dated 31-12-1962 (Ext. 1) for a consideration of Rs. 1,000/-. During the recent settlement operations, plaintiff claimed patta on the strength of his title and possession. Defendants 2 to 6 contested plaintiff s claim on the allegation that they were in possession before plaintiff got into possession and their surrender to defendant No. 1 s father-in-law for arrears of revenue was invalid and contrary to the provisions of Orissa Regulation 2 of 1956. The final record-of-rights was published in the names of defendants 2 to 6. After receiving the record of rights, defendants 2 to 6 forcibly entered into the property on 27-10-1965 and cut away the standing crop. A proceeding under Section 145 of the Code of Criminal Procedure was initiated which terminated in favour of the defendants. Plaintiff thereafter filed the suit on 8-7-1967.

3. Defendant No. 1 took the stand that plaintiff knew that the other defendants were not able to pay the dues and had given up cultivation and relinquished the land in favour of the land-holder Binayak Baxi and plaintiff had also made due enquiries and had come to learn that defendant No. 1 as pattadar was in possession of the land. Plaintiff had made due enquiries and was satisfied about the defendants title and thereafter had entered into the sale transaction. According to defendant No. 1. Orissa Regulation 2 of 1956 had no application because defendants 2 to 6 are not members of the Scheduled Tribes. Defendants 2, 3 and 6 who entered contest in a joint written statement took the stand that defendant No. 1 is the daughter-in-law of Binayak Baxi, the exintermediary of the inam village. Defendant No. 1 was not the pattadar of the suit property and had no right, title or interest to convey to plaintiff. The contesting defendants were Bhotras by caste and, therefore, belonged to the scheduled tribes and were entitled to the protection of Regulation 2 of 1956. The disputed property was never in khas possession of the ex-intermediary and the unregistered deed of relinquishment from the second defendant was invalid in law because no permission had been obtained as envisaged under the aforesaid Regulation. Even if there were a valid relinquishment, the fresh settlement had to be with the necessary permision; otherwise it is bound to be affected in view of the provisions of the Regulation. Defendants 4 and 5 laid no claim to the property.

4. The learned Trial Judge found that the inami estate vested with effect from 1-7-1954 under the provisions of the Orissa Estates Abolition Act; Binayak had no title to the disputed property and, therefore, defendant No. 1 acquired no title under the patta in her favour. While refusing to declare the title of plaintiff, the learned Subordinate Judge gave a decree for refund of the consideration money together with interest. He further recorded a finding that defendants 2 to 6 were Bhotras - a community covered by Orissa Regulation 2 of 1956.

5. The learned District Judge in appeal came to hold that the inamdar continued to have title to the property until 1-7-1963 on the basis of the compromise (Ext. K). He further found that defendants 2 to 6 were members of the Scheduled Tribes and therefore the Orissa Regulation had application to them. In the absence of the requisite permission the learned Appellate Judge held in agreement with the learned Subordinate Judge that the relinquishment under Ext. B by the second defendant in favour of the inamdar Binayak was invalid. He further found that the patta in favour of defendant No. 1 by Binayak was cont