Whether non-tribal can acquire title over land of tribal by invoking Doctrine of Adverse Possession?

Held, acquisition of title in favour of a non-tribal
by invoking the Doctrine of Adverse Possession over the
immovable property belonging to a tribal, is
prohibitated by law and cannot be countenanced by the
Court. On other words a default or inaction on the part
of a tribal which results in deprivation or deterioration
of his rights over immovable property would amount to
dealing’ by him with such property, and hence a
transfer of immovable property. It is so because a tribal
is considered by the legislature not to be capable of
protecting his own immovable property. A provision has
been made by para 3A of the 1956 Regulations for
evicting any unauthorized occupant, by way of trespass
or otherwise, of any immovable property of the member
of the Scheduled Tribe, the steps in regard to which
may be taken by the tribal or by any person interested
therein or even suo motu by the competent authority.
The concept of locus standi loses its significance. The
State is the custodian and trustee of the immovable
property of tribals and is enjoined to see that the tribal
remains in possession of such property. No period of
limitation is prescribed by Para 3A. The prescription of
the period of 12 years in Art.65 of the Limitation Act
becomes irrelevant so far as the immobile property of a
tribal is concerned. The tribal need not file a civil suit

which will be governed by law of limitation, it is enough
if he or any one of his behalf moves the State or the
State itself moves into action to protect him and
restores his property to him. To such an action neither
Art. 65 of Limitation Act nor S.27 thereof would be
attracted.
THE HIGH COURT OF ORISSA : CUTTACK
O.J.C. No.3194 of 1993

Jogendra Panda

-Versus-
Collector, Kalahandi & Others

P R E S E N T:
THE HON’BLE MR. JUSTICE INDRAJIT MAHANTY.
Date of Judgment : 19.06.2014
Citation;AIR 2014 Orissa 167

In this writ application, the petitioner-Jogendra Panda has
sought to challenge the order dated 09.07.1990 passed by the
2
Revenue Officer, Dharamgarh in R.M.C. No.490 under Section 23-A of
the Orissa Land Reforms Act, 1960 (In short ‘the O.L.R. Act’) directing
issue of restoration warrant of the schedule land in favour of the legal
heirs of the recorded tenant i.e. the present private opposite party
Nos.3 to 5, who are admittedly belong to ‘Sabara’ community and
have been listed as Scheduled Tribes. The present petitioner, who is a
‘Brahmin’ by caste sought to challenge the said order before the
A.D.M.(L.R.), Kalahandi, Bhawanipatna in O.L.R. Appeal No.23 of
1990 and the said appeal came to be allowed by order dated
28.11.1990, whereby, the A.D.M., Kalahandi set aside the order
passed by the Revenue Officer. The predecessors in interest of the
private opposite party Nos.3 to 5 challenged the order passed in
appeal in the Court of the Collector, Kalahandi in O.L.R. Revision
Case Nos.1/91 and 2/91 and the said revisions came to be allowed by
the learned Collector, Kalahandi by order dated 26.03.1993 setting
aside the order passed in appeal and reaffirming the order passed by
the Revenue Officer by declaring the transaction vide R.S.D. No.1538
dated 07.05.1964 between Padman Sabar and Joginder Panda as void
and with the further finding that the present writ petitioner (opposite
party therein) had not perfected his title by way of adverse possession
and, consequently, directed the land to be restored in favour of the
successors in interest of the suit land i.e. the present private opposite
party Nos.3 to 5. Therefore, being aggrieved, the present writ
3
petitioner-Jogendra Panda has sought to challenge the order passed
by the Revenue Officer under Annexure-1 and the order passed by the
Revisional Authority under Annexure-4 by way of filing the present
writ petition.
2.
The learned counsel appearing for the petitioner submitted
that the writ petitioner is admittedly a Non-Scheduled Caste or Tribe
person and belongs to Brahmin caste and had purchased Ac2.40
decimals of land in village Jharkundamal, in Khata No.40, Plot No.380
on payment of consideration amount accompanied by delivery of
possession from opposite party Nos.3 & 4, who belong to Scheduled
Tribe, by way of a Registered Sale Deed No.1538 dated 07.05.1964. It
is further submitted that opposite party No.3 & 4 filed R.M.C. No.11 of
1990 before opposite party No.2 (Revenue Officer, Dharamagarh) for
recovery of possession of the case land under Section 23-A of the
O.L.R. Act, inter alia, on the allegation that the petitioner was in
unauthorized possession since the date of purchase. It is submitted
that the Revenue Officer relying on an erroneous decision of the Board
of Revenue reported in 56(1983) C.L.T. 17, allowed the claim of the
opposite party Nos.3 & 4 by his order dated 09.07.1990 under
Annexure-1 which is impugned herein.
3.
The learned counsel for the petitioner further submitted that
challenge to the aforesaid order had been made by the writ petitioner
in O.L.R. Appeal No.23 of 1990 before the Additional District
4
Magistrate, Kalahandi. In the said proceeding, the appellate court
came to a finding that the decision of the Board of Revenue relied
upon by the Revenue Officer was no longer good law in view of the
decision of this Court in the case of Anadi Mohanta & others
vs.
State of Orissa and Others, 68(1989) C.L.T. 1 and consequently, the
appeal filed by the writ petitioner had come to be allowed. The
opposite party Nos.3 & 4 as well as opposite party No.5 filed separate
revision before opposite party No.1-Collector, Kalahandi and it is
alleged by the petitioner that the revision came to be allowed on the
basis of a mis-interpretation of the aforesaid decision rendered by this
Court in the case of Anadi Mohanta (Supra) and consequently, the
revision cases were allowed with a finding that the period of limitation
would be 30 years to the transfers effected without necessary
permission under the Orissa Merged States (Laws) Act, 1950.
Learned counsel for the petitioner asserted that whereas the
period of limitation under Section 23 of the O.L.R. Act, 1960 was
originally 12 years with relation to unauthorized occupation for a
proceeding under 23-A, it is only on 01.05.1991 an amendment was
carried out to the aforesaid provision and period of limitation stood
extended to 30 years by Orissa Act 8 of 1991. Therefore, it is
contended on behalf of the petitioner that since the petitioner’s
possession was on the basis of the sale deed executed in his favour in
the year 1964, was contrary to Section 7(b) of The Orissa Merged
5
States (Laws) Act, 1950. The petitioner acquired title by way of
adverse possession on 07.05.1976 i.e. on completion of 12 years from
07.05.1964. Therefore, the petitioner having perfected his title to the
property by way of adverse possession, the initiation of a proceeding
for recovery of the land by the private opposite parties in the year
1990 was barred by limitation.
4.
Learned counsel for the opposite parties, on the other hand,
admitted that opposite party Nos.3 & 4 had executed a sale deed in
favour of the writ petitioner on 07.05.1964, but the said sale was in
contravention of Section 7(b) of the Orissa Merged States (Laws) Act,
1950. It is further submitted that the O.L.R. Act, 1960 came to be
notified on 25.09.1965 (excepting Chapters-III & IV) and came into
force with effect from 01.10.1965. Chapters III & IV came into force
with effect from 09.12.1965 and 07.01.1972 respectively. Sections 22
& 23 being part of Chapter-II of the O.L.R. Act came into force since
01.10.1965. The said provision prohibits transfer of land by a
Scheduled Tribe member to a Non-Scheduled Tribe member without
permission in non-scheduled areas. In other words, while Section 22
restricted the alienation of land belonging to Scheduled Tribes and
declared that any transfer of holding belonging to a Scheduled Tribe
shall be void unless under Sub-section(3) there of written permission
of the Revenue Officer was duly obtained and under Section 23, in the
case of any transfer in contravention of Section 22(1), the Revenue
6
Officer was authorized either on his own motion or on the application
of any interested person to conduct an enquiry and make a necessary
declaration either suo motu or on an application of interested parties
to cause restoration of the property to the transferer or his heirs and
for such purpose to take such necessary steps for compliance of the
said order. Apart from the above, Section 23-A came to be inserted in
the O.L.R. Act, 1960 by Orissa Act No.44 of 1976 whereby the
Revenue Officer was authorised to direct eviction of all persons in
unauthorized occupation of property either on his own motion or at
behest of an interested party after giving notice to the parties likely to
be affected thereof. Admittedly Section 23-A was incorporated by
amendment on 25.10.1976.
5.
Learned counsel for the opposite parties contend that the
order of the Revenue Officer under Annexure-1 as affirmed by the
Collector, Kalahandi in the revisional order under Anenxure-4 clearly
indicates that the present petitioner though claim to have purchased
the property by way of a registered sale deed on 07.05.1964, clearly
admitted that the said sale deed was void on account of violation of
Section 7(b) of the Orissa Merged States (Laws) Act, 1950 and
consequently, the only basis on which the writ petitioner seeks to
establish his right over the land in dispute is essentially his claim of
“adverse possession”.
7
Admittedly,
the
sale
transaction
was
conducted
on
07.05.1964 i.e. prior to the coming into force of the provisions of the
O.L.R. Act. It is the further finding of the Revenue Officer that Section
7(b) to the Orissa Merged States (Laws) Act, 1950 puts a bar on
transfer of land by persons belonging to aboriginal tribe without the
necessary permission of the competent authority and the private
opposite party belong to the Sabar caste which was declared as an
aboriginal tribe under notification dated 22.05.1962. Therefore, the
Revenue Officer held that any sale transaction of land belonging to an
aboriginal tribe without the permission of the competent authority
would be hit by the provisions of the Orissa Merged States (Laws) Act,
1950 and, accordingly, he decided that as per provisions of Section 23
of the O.L.R. Act, the sale transaction having been effected without
the necessary permission of the competent authority, the said
transaction is void and the land was directed to be recorded in the
name of the petitioner therein (opposite parties and their legal heirs
herein).
6.
Insofar as the claim of limitation of 12 years adverse
possession is concerned, the Revenue Officer came to a finding that
the said period has not matured by 02.10.1973, the limitation for
adverse possession of land belonging to Scheduled Tribe category
persons was extended to 30 years from the said date and, therefore,
by the date the petitioner claims to have perfected his title by way of
8
adverse possession, the period of limitation was no longer 12 years
but had stood extended to 30 years and consequently initiation of the
proceeding under Section 23-A of the O.L.R. Act, 1960 in the year
1990 was not beyond the period of limitation prescribed by the
necessary statutes. Though the writ petitioner succeeded in appeal,
the revisional authority i.e. the Collector, Kalahandi under Anenxure-
4 set aside the said appellate order affirming the order of the Revenue
Officer. Insofar as the plea of limitation is concerned, the revisional
authority came to hold that the period of limitation came to be
amended by Orissa Act 9 of 1974 which came into force from
02.10.1973 amending the period of limitation from 12 years to 30
years and, therefore, since admittedly the void sale transaction took
place on 07.05.1964 and the original period of 12 years would have
only lapsed in 07.05.1976 and there having been amendment of law
prior thereto i.e. on 02.10.1973 extending the period of limitation from
12 years to 30 years, no claim of the petitioner for having perfected
his title by way of adverse possession on completion of 12 years post
amendment could be accepted.
7.
In the light of the submissions as recorded hereinabove, the
only issue that arises for consideration in the present case is that
until 07.05.1964, the land was owned by the private opposite parties,
who were admittedly members of the aboriginal tribe and belong to
Scheduled Tribe. On 07.05.1964 the land came to be transferred to
9
the writ petitioner (who is a Brahmin, “a person not belonging any
aboriginal tribe”). Admittedly, in the present case, the private opposite
parties initiated a proceeding under Section 23-A of the O.L.R. Act in
the year 1990 before the Revenue Officer. Therefore, the question that
arises as to whether by the time of filing of the Revenue Misc. Case
before the Revenue Officer, period of limitation had expired or not. A
further question that needs to be determined in the present case is
what is the present period of limitation that would be applicable in the
fact and circumstance of the present case. In the case at hand, the
date of sale deed is admitted to be 07.05.1964. The period of
limitation originally prescribed for initiation of proceeding was 12
years and amendment was carried out to the O.L.R. Act by Act 9 of
1974 which came into force from 02.10.1973 enhancing the limitation
period to 30 years. Admittedly, by the date of the said amendment
since the period of 12 years had not lapsed by then, no question of
writ petitioner perfecting his title by way of adverse possession can or
does arise. Consequently, with the amendment from 02.10.1973, the
period of limitation was enhanced to 30 years and the proceeding
under Section 23-A of the O.L.R. Act has been commenced by the
opposite parties in the year 1990. The initiation of such proceeding
was definitely within the period prescribed for limitation and
consequently was duly maintainable. Therefore, the supplementary
10
issue as noted herein above is answered in favour of the private
opposite parties and against the writ petitioner.
8.
Insofar
as
the
applicability
of
the
Limitation
Act
is
concerned, the issues are no longer res integra in view of the
judgment of the Hon’ble Supreme Court in the case of Amrendra
Pratap Singh vs. Tej Bahadur Prajapati and Others, AIR 2004
Supreme Court 3782. The relevant portions of the said judgment are
quoted hereunder.
“The law does not intend to confer any premium
on the wrong doing of a person in wrongful possession.
It pronounces the penalty of extinction of title on the
person who though entitled to assert his right and
remove the wrong doer and re-enter into possession,
has defaulted and remained inactive for a period of 12
years, which the law considers reasonable for attracting
the said penalty. Inaction for a period of 12 years is
treated by the Doctrine of Adverse Possession as
evidence of the loss of desire on the part of the rightful
owner to assert his ownership and reclaim possession.
The nature of the property, the nature of title vesting in
the rightful owner, the kind of possession which the
adverse possessor is exercising, are all relevant factors
which enter into consideration for attracting
applicability of the doctrine of Adverse Possession. The
right in the property ought to be one which is alienable
and is capable of being acquired by the competitor.
Adverse possession operates on an alienable right. The
right stands alienated by operation of law, for it was
capable of being alienated voluntarily and is sought to
be recognized by doctrine of adverse possession as
having been alienated involuntarily, by default and
inaction on the part of the rightful claimant, who
knows actually or constructively of the wrongful acts of
the competitor and yet sits idle. Such inaction or
default in taking care of one’s own rights over property
is also capable of being called a manner of ‘dealing’
with one’s property which results in extinguishing one’s
11
property which results in extinguishing one’s title in
property and vesting the same in the wrong doer in
possession of property and thus amounts to transfer of
immovable property’ in the wider sense assignable in
the context of social welfare legislation enacted with the
object of protecting a weaker section.
(Paras 22, 23)
In instant case until 7-4-1964 the land was
owned by three members of an aboriginal tribe and a
Scheduled Tribe. On 7-4-1964 the land came to be
transferred to defendant a person not belonging to any
aboriginal tribe. Proceeding on the premise that in the
year 1970, on the date of the filing of the suit the
defendant No.1 had been in possession of the property
for a period of more than 12 years. Can it be said that
he had perfected his title by adverse possession or that
the suit filed by the plaintiff had become barred by time
on account of having been filed 12 years after the date
when the possession of the defendant became adverse
to the plaintiff or his predecessors in-title ?
Held, acquisition of title in favour of a non-tribal
by invoking the Doctrine of Adverse Possession over the
immovable property belonging to a tribal, is
prohibitated by law and cannot be countenanced by the
Court. On other words a default or inaction on the part
of a tribal which results in deprivation or deterioration
of his rights over immovable property would amount to
dealing’ by him with such property, and hence a
transfer of immovable property. It is so because a tribal
is considered by the legislature not to be capable of
protecting his own immovable property. A provision has
been made by para 3A of the 1956 Regulations for
evicting any unauthorized occupant, by way of trespass
or otherwise, of any immovable property of the member
of the Scheduled Tribe, the steps in regard to which
may be taken by the tribal or by any person interested
therein or even suo motu by the competent authority.
The concept of locus standi loses its significance. The
State is the custodian and trustee of the immovable
property of tribals and is enjoined to see that the tribal
remains in possession of such property. No period of
limitation is prescribed by Para 3A. The prescription of
the period of 12 years in Art.65 of the Limitation Act
becomes irrelevant so far as the immobile property of a
tribal is concerned. The tribal need not file a civil suit
12
which will be governed by law of limitation, it is enough
if he or any one of his behalf moves the State or the
State itself moves into action to protect him and
restores his property to him. To such an action neither
Art. 65 of Limitation Act nor S.27 thereof would be
attracted. The period upto 6.4.1964 during which the
land belonged to the tribals, has to be excluded from
calculating the period of limitation. Undoubtedly, on
07.04.1964 the land having been sold by a tribal to a
non-tribal defendant with the previous permission of
the Sub-Divisional Officer, the possession of defendant
over the land on and from that date shall be treated as
hostile. In the suit filed by the plaintiff-appellant tribal
in the year 1970 the period of limitation shall have to
be calculated by reference to Art. 65 of the Limitation
Act. By that time only a period of 6 years i.e. between
1964 and 1970 had elapsed. The suit was not barred
by limitation.”
The aforesaid judgment has been reaffirmed once again by
the Hon’ble Supreme Court in the case of Lincai Gamango and
Others vs. Dayanidhi Jena and Others, AIR 2004 Supreme Court
3457. It would be most relevant to take note of paragraphs-7 & 9 of
the said judgment which are quoted hereunder.
“7. We find both these reasons given by the High
Court are not sustainable. Coming first to the second
point, we find that there is a decision of this Court
direct on the point. It is reported in 2003(9)JT (SC) 201,
Amrendra Pratap Singh v. Tej Bahadur Prajapati and
others. The matter related to transfer of land falling in
tribal area belonging to the Scheduled Tribes. The
matter was governed by Regulations 2, 3 and 7-D of the
Orissa Scheduled Areas Transfer of Immovable property
(by Scheduled Tribes) Regulations, 1956 viz. the same
Regulations which govern this case also. The question
involved was also regarding acquisition of right by
adverse possession. Considering the matter in detail, in
the light of the provisions of the aforesaid Regulation,
this Court found that one of the questions which falls
for consideration was “whether right by adverse
13
possession can be acquired by a non-aboriginal on the
property belonging to a member of aboriginal tribe”?
(para 14 of the judgment). In context with the above
question posed, this Court observed in para 23 of the
judgment as follows:
“.....The right in the property ought to be one
which is alienable and is capable of being acquired by
the competitor. Adverse possession operates on an
alienable right. The right stands alienated by operation
of law, for it was capable of being alienated voluntarily
and is sought to be recognized by doctrine of adverse
possession as having been alienated involuntarily by
default and inaction on the part of the rightful
claimant..........”
This Court then noticed two decisions one that of
the Privy Council reported in AIR 1923 PC 205,
Madhavrao Waman Saundalgekar and others v.
Raghunath Venkatesh Deshpande and others and
AIR(36) 1949 Nag 265, Karimullakhan S/o Mohd.
Ishaqkhan and another v. Bhanupratap Singh, holding
that title by adverse possession on inam lands, watan
lands and debutter was incapable of acquisition since
alienation of such land was prohibited in the interest of
the State. We further find that the decision in the case
of Madhiya Nayak (supra) relied upon by the High
Court was referred to before this Court and it is
observed that the question as to whether a non-tribal
could at all commence prescribing acquisition of title by
adverse possession over the land belonging to a tribal
which is situated in a tribal area, was neither raised
nor that point had arisen in the case of Madhiya
Nayak. It is further observed that the provisions of S. 7-
D of the Regulations are to be read in the light of the
fact that the acquisition of right and title by adverse
possession is claimed by a tribal over the immovable
property of another tribal but not where the question is
in regard to an non-tribal claiming title by adverse
possession over the land belonging to a tribal situate in
a tribal area. It is, therefore, clear in view of the
decision in the case of Amrendra Pratap Singh (supra)
that a non-tribal would not acquire right and title on
the basis of adverse possession. Therefore, the second
ground for setting aside the order passed by the
appellate Court falls through. Therefore, the other
factual aspect about the possession of the respondents
14
over the disputed land and entries in their favour may
also not be of much consequence, in any case, this
aspect of the matter has to be seen and considered
afresh in the light of other facts and circumstances of
the case.
9.
In our view, the order passed by the High
Court is not sustainable. The question of acquisition of
right and title by adverse possession by non-tribal over
the land in the scheduled area belonging to a member
of the Scheduled Tribe does not arise. Since the finding
of the High Court on this point is not sustainable, in
our view, the whole matter needs a fresh look
considering the facts as indicated in details in different
orders passed at different stages namely, the first order
passed by the Project Administrator which matter was
later on remanded in appeal by order dated 8.4.1982
and thereafter the facts as mentioned in the
subsequent orders including one passed in appeal
which has been set aside by the High Court by means
of the impugned order. If necessary, other relevant
evidence on the record as sought to be pointed out by
the learned counsel may also have to be seen in the
light of the provisions of the Regulation No.2 of 1956
before holding that there is no evidence or material
supporting ownership, title or possession of the
applicants viz. the tribals. The implications of the claim
of the respondent for allegedly having perfected their
rights by adverse possession may also have to be
examined.”
9.
In the light of the judgments rendered by the Hon’ble
Supreme Court referred hereinabove both in the case of Amrendra
Pratap Singh (Supra) as well as Lincai Gamango and Others
(Supra), what is most important to note herein is that, the question of
acquisition of right and title by way of adverse possession by a non-
tribal over the land belonging to a member of the Scheduled Tribe
does not arise since it is now been well settled that law does not intent
to confer any premium on the wrong doing of a person in wrongful
15
possession. It has been categorically held by the Hon’ble Supreme
Court that acquisition of title in favour of a non-tribal by invoking the
Doctrine of Adverse Possession over the immovable property belonging
to a tribal is prohibited by law and cannot be countenanced by the
court. This is so since a tribal has been considered by the legislature
not to be capable of protecting his own rights over immovable property
and consequently where law has been enacted by legislature
protecting such rights and in violation of such laws a transaction of
sale is effected. The object of such legislation itself would be lost if any
other interpretation is given to a person claiming adverse possession
as held in the aforesaid decision.
Insofar as the law of limitation is concerned, it pronounces
the penalty of extinction of title on a person who though entitled to
assert his right and remove the wrong doer and re-enter into
possession, has defaulted and remained inactive for the period of
limitation prescribed
which the law
prescribes reasonable for
attracting the penalty. Therefore for a person to lose his title to
someone else on the ground of the doctrine of adverse possession, the
nature of the right in the property has to be one which is alienable
and is capable of being acquired by the competitor where legislature
itself has put a bar and/or a precondition to such alienation, no
question of alternate plea of adverse possession by a person who
claims to have purchased the said land and come into possession of
16
the said land on the basis of a void purchase which had been
admittedly made in violation of Section 7(b) of the Orissa Merged
States (Laws) Act since it would effectively amount to conferring
premium on the wrong doer for his wrongful possession which has
been specifically laid down by the Hon’ble Supreme Court. For better
appreciation Section 7(b(i) of the Orissa Merged States (Laws) Act is
quoted hereunder.
“7. Modification of Tenancy Laws in force in
the merged States-
(b) an occupancy tenant shall be entitled-
(i) to freely transfer his holding subject to the
restriction that no transfer of a holding from a member
of an aboriginal tribe to a member of a non-aboriginal
tribe shall be valid unless such transfer is made with
the previous permission of the Sub-divisional Officer
concerned;”
10.
Although various judgments of this Court referred to by
various parties, in view of the judgments of the Hon’ble Supreme
Court which are cited above, no reference need be made thereto since
the same have become redundant in view of the authoritative
pronouncement of the Hon’ble Apex Court on the subject.
11.
In view of the aforesaid reasons and the judgments referred
to hereinabove, after analyzing the facts and pleadings of the parties, I
find no justification in entertaining the writ application or any
challenge to the orders passed by the Revenue Officer, Dharamgarh
under Annexure-1 and by the Collector, Kalahandi under Annexure-4.
Consequently, while directing dismissal of this writ petition, further
17
direct the Revenue Officer concerned to take effective immediate
measures to comply with the direction of the revisional authority
forthwith. The interim order dated 15.03.1994 passed in Misc. Case
No.2848 of 1993 stands vacated.
..............................
I.Mahanty, J.
ORISSA HIGH COURT : CUTTACK
19th June, 2014 /PKP