Temburu Ramesh vs Collector, Gajapati

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Ori) 375

2008 (II) OLR — 812
SANJU PANDA, J.
Temburu Ramesh and another...Petitioners
Versus
Collector, Gajapati and others...Opp. Parties
O.J.C. No.11766 of 1998
Decided on 19th August, 2008.

Advocates:
For Petitioners:M/s. R. Behera, K. Mohammad and P. K. Patnaik
For Opp. Parties 1 & 2:Addl.Standing Counsel
For Opp. Party 3:M/s. N. C. Pati, A. K. Mohapatra, S. Mishra & S. Tripathy

Headnote:1. ORISSA SCHEDULED AREAS TRANSFER OF IMMOVABLE PROPERTIES (BY SCHEDULED TRIBES) REGULATIONS, 1956 - Sec. 3-A - If a person is in unauthorised occupation of a land belonging to a Scheduled Tribe person, the Revenue Officer after due enquiry can direct eviction of the unauthorised occupation of the disputed land by such person (who belongs to a General Category) - In the present case, the petitioners were not able to prove the point of time within the knowledge of O.P.No. 3 when they were in possession of his property claiming title adverse to him to attract the principle of adverse possession - They were not entitled to any right over the disputed property. (Para - 7)
       2. ADVERSE POSSESSION - Doctrine of adverse possession as having been alienated in voluntarily, by default and inaction on the part of the rightful claimant, who knows actually or con¬structively of the wrongful acts of the competitor and yet sits idle.
       To attract the claim of unauthorized occupation as adverse possession, the person has to prove the following principles. In law every possession is not adverse possession. The process of acquisitions 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 continues in possession setting up title in himself and adversely to the title of the owner, commences pre¬scribing title into himself. Such prescription having continued for a period of 12 years, he acquires title not his own but on account of the default or inaction on the part of the real owner, which stretched over 12 years results into extinguishing of the latter’s title and it is that extinguished title of the real owner which comes to vest in the wrong doers. The law does not intent to confer any premium on the wrong doing of a person in wrongful possession.
       (Para - 7)

Judgement Key Points

Key Points: - The petitioners were found in unauthorized occupation of land belonging to a Scheduled Tribe and were liable to eviction under Regulation 1956 Sec. 3-A after due enquiry (!) (!) . - Regulation 1956 Sec. 3-A authorizes eviction and restoration of possession to the ST member or his heirs after due hearing, with references to probative process and reporting to Grama Panchayat (!) (!) . - Adverse possession requires proof of possession started in a manner acknowledging owner’s title and lasting 12 years, which was not proven by petitioners in this case (!) (!) . - Documentary evidence like an unregistered sale deed or its Xerox copy is not a valid transfer document to show ownership or transfer in absence of original, impacting possession legitimacy (!) (!) . - The Collector’s order in Regulation Appeal No.1 of 1990 and subsequent findings were upheld, and writ petition was dismissed as devoid of merit (!) (!) .

What is the scope of the power of a Revenue Officer under Regulation 1956 Sec. 3-A to evict unauthorized occupation of land belonging to a Scheduled Tribe person and restore possession to the ST member?

What are the requirements to establish adverse possession as a defense to unauthorized occupation under the Regulation 1956 and related provisions?

What is the effect of documentary evidence (unregistered sale deed/Xerox copy) and prior possession dating from 1937 on entitlement to restoration under Regulation 1956?

JUDGMENT

S. PANDA, J. — In this writ petition challenge has been made to the order dated 19th November, 1994 passed by the Collector, Gajapati in Regulation Appeal No.1 of 1990 dismissing the appeal on the ground that the appellants and their successors-in-interest were found to be in unauthorized occupation of the schedule land and directing the Tahasildar to evict them from the disputed land and restore the possession to the present opposite party No.3 who is the successor-in-interest of the recorded land holder under the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (hereinafter referred to as “Regulation 1956”).

2. The facts of the case are as follows :

The disputed property measuring an area of Ac.2.320 decs. is situated in Plot No.413 under Khata No.13 in mouza Padmapur under Parlakhemundi P.S. in the district of Gajapati. Trinath Samal, the present opposite party No.3, filed RMC No.66 of 1988 for restoration of the disputed land to him as the transfer of the land was in violation of Section 3(2) of Regulation 1956. He further asserted that he belongs to Scheduled Tribe being “Saba¬ra” and the petitioners were Non-Scheduled Tribe person (General category). The petitioners stand was that the case land was re¬corded in their father’s name-Temburu Ekadasi. After his death, they being the legal heirs possessed the disputed land by virtue of an unregistered sale deed executed by the father of opposite party No.3. The Officer-on-Special Duty (L.R.) by order dated 31.7.1989 in RMC No.66 of 1988, on the application of opposite party No.3, issued notice to the petitioners and also received evidence from both the sides. After due enquiry, he came to the finding that in the year 1966 the case land of about Ac.0.80 decimals was mortgaged to the father of the respondent on ‘Khand¬iguta’ for ten years. According to the terms of ‘Khandiguta’, the land was to be given back to opposite party No.3’s father after ten years i.e. in the year 1975. The land was mortgaged for the repair of his house. The land was recorded in the name of the present petitioners who were respondents though Parcha was issued in the name of the present opposite party No.3. The respondents got the land recorded in their name by the Settlement Officer. Ext.1 is the Parcha issued in the name of the petitioner, (present opposite party No.3) as the owner of the case land. The respondents filed Ext.A, the so-called sale deed of the year 1937 executed for a sum of Rs.40/- which was a stamped unregistered document. They stated that the land was under their physical possession for the last 52 years. Ext.A was the Xerox copy of the sale deed. The said document was scribed by one Gopabandhu Dalai who was a teacher by that time. In his cross-examination, he denied the fact that he was a regular witness in police and other cases. He knew the contents of Ext.A but could not read it. On the above evidence, the Officer-on-Special Duty (L.R.) on the basis of the report of the Block Development Officer, Rayagada on preliminary enquiry held that the case land was under the cultiv¬able possession of the present petitioners since 1969. He further held that they were in unauthorized occupation of the disputed land by virtue of the mortgage deed locally known as ‘Khandigu¬ta’. As no permission was accorded for such mortgage, he restored the land to opposite party No.3 under Section 3(2) of the Regula¬tion-2 by imposing a penalty of Rs.200/- on the persons who unauthorizedly occupied the disputed land under Section 7(1) of Regulation-2. Being aggrieved by the said order, they filed Regulation Appeal No.1 of 1990 before the Collector & District Magistrate, Gajapati, Parlakhemundi. The appellate authority by order dated 19th November, 1994 confirmed the order of the Offi¬cer-on-Special Duty (L.R.) with a finding that the unregistered sale deed did not show the name of the buyer of the stamp paper from the stamp vendor and as it was a Xerox co

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