Acknowledgment of title by the person in possession breaks the continuity of adverse possession.

V. A. MOHTA, C. J.

( 1 ) IN this writ petition under Articles 226 and 227 of the Constitution, the Full Bench is called upon to record an answer to the following question:-";whether the petitioners, who were in possession of the land in question from 25-3-1961 under an unregistered sale deed though the value of the land was Rs. 1,400/- and thereafter registered sale deed was executed the same vendor and vendee on 11-11-1967 without prior permission of the competent authority under Section 22 of the Act, though the vendor was a Scheduled Tribe member and vendees were Non-Scheduled Tribe Members, who continued in possession from the date of the unregistered sale deed, have perfected their title by adverse possession. In other words, whether the second registered sale deed in between the parties which was also void ab initio interrupted continuance of the adverse possession which started from 25-3-1961. ";

( 2 ) BASIC factual background is: linga Bariha (O. P. No. 5) - a Scheduled Tribe person - filed on 10-2-1983 an application under Section 23 of the Orissa Land Reforms Act (";the Act";) - brought into force from 1-10-1965 - for restoration of possession of his land from Trilochan Dandsena and another (the petitioners) - the non-Scheduled Tribe persons. The basis was that the registered sale deed dated 11-11-1967 executed by C. P. No. 5 in favour of the petitioners transferring the land for a consideration of Rs. 1,400/- was void and inoperative in law being in contravention of Section 22 of the Act, as it was obtained without permission of the Revenue Officer. The petitioners defended the possession on the ground that they are in possession of the property with effect from 25-3-1961 on the basis of an unregistered sale on paying the full consideration of Rs. 1,400/and had acquired title by adverse possession before 2-10-1973 from which date Section 23b (inserted by Act No. 44 of 1976) was brought into force. By Section 23-B, two changes are brought about (1) the period of 12 years contemplated by Article 65 of the Limitation Act has been enhanced to 30 years for the limited purposes of proceedings under Section 23 of the Act, and (2) burden to prove the transaction as valid is placed on the transferee. No party led any oral evidence. The Sub-Divisional Officer rejected the defence and ordered restoration of possession. The Additional District Magistrate, however, allowed the appeal filed by the petitioners. The Collector reversed the order passed by the appellate authority and restored the order of the S. D. O.

( 3 ) AGGRIEVED by the order of the Collector, the petitioners filed this writ petition and in course of hearing relied upon a Division Bench decision of this Court in the case of Ranjit Sahu v. Chintamani Sethi, (1990) 1 Orissa LR 289, in which claim of acquisition of title by adverse possession on the basis of two transactions, one of unregistered sale dated 1-4-1962 and the other of a registered sale deed 15-1-1966, but in contravention of Section 22 of the Act, was upheld. The learned Judges bearing the present matter expressed doubts about the correctness of the ratio of that decision and hence this reference to Full Bench was made.

( 4 ) HAVING heard learned counsel for the parties and examined the record with their assistance, it seems to us that the answer to the question has to be against the petitioners.

( 5 ) IN the first place, we are unable to see how the acquisition of title by adverse possession would be possible in the cases of this type specially when no evidence whatsoever is led by the party claiming title. Adverse possession is essentially a question of fact. In any case it is a mixed question of law and fact. The starting point of limitation begins from the expression of hostile animus amounting to denial of title of the real owner to his knowledge. This must continue for uninterrupted period of 12 years. Merely on the basis of possession under a void transaction -- and nothing more - title by a