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Lincai Gamango And Others v. Dayanidhi Jena And Others
Factual and Procedural Background
The appellants, members of the Scheduled Tribe residing in Khariaguda village (a notified Scheduled Area in the State of Orissa), instituted seven Revenue Miscellaneous Cases (Nos. 150-156 of 1976) before the Project Administrator, ITDA, Parlakhemundie under the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 (“Regulation 2 of 1956”). They alleged that certain non-tribal Pano Christians from the adjoining village of Asharyaguda had forcibly occupied their land.
On 28-2-1979, the Project Administrator ordered restoration of the land to the appellants. The Additional District Magistrate, however, remanded the matter for identification of the precise parcels. After remand, and following a Revenue Inspector’s report, the Project Administrator dismissed the appellants’ claims on 25-3-1987, relying principally on the Inspector’s cross-examination and the 1927 kabala.
The appellants filed Regulation Appeals Nos. 1-7 of 1987. The Collector-cum-District Magistrate allowed the appeals, rejected the Inspector’s evidence, and directed immediate restoration of possession to the appellants, emphasising the protective object of Regulation 2 of 1956.
The non-tribal respondents then filed a writ petition. The High Court set aside the appellate order on two grounds: (i) absence of evidence proving the appellants’ title, and (ii) respondents’ acquisition of title by adverse possession, allegedly perfected before the 1975 amendment that extended the limitation period from 12 to 30 years.
The present Supreme Court appeals challenge the High Court’s judgment.
Legal Issues Presented
- Whether a non-tribal occupant of land situated in a Scheduled Area can acquire title by adverse possession against a member of a Scheduled Tribe in the face of Regulation 2 of 1956.
- Whether the High Court erred in holding that the appellate authority’s finding of tribal ownership and possession was unsupported by evidence.
Arguments of the Parties
Appellants (Scheduled Tribe Landholders)
- The land lies in a Scheduled Area; any transfer to non-tribals is void under Sections 3 and 5 of Regulation 2 of 1956.
- The respondents’ plea of adverse possession is legally untenable because Regulation 2/1956 bars such acquisition by non-tribals.
- The appellate authority correctly found forcible dispossession and ordered restoration.
Respondents (Non-Tribal Occupants)
- They have been in open, continuous possession since 1958 and perfected title by adverse possession after 12 years, well before the 1975 amendment extended the limitation period.
- The appellate authority lacked evidentiary basis to conclude that the appellants ever owned or possessed the disputed parcels.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Amrendra Pratap Singh v. Tej Bahadur Prajapati (2004) 10 SCC 65 | A non-tribal cannot acquire title by adverse possession over land belonging to a tribal in a Scheduled Area. | Relied upon to reject the High Court’s conclusion that the respondents perfected title by adverse possession. |
| Madhia Nayak v. Arjuna Pradhan (1988) 65 Cut LT 360 | Earlier Orissa High Court view that adverse possession could mature before the 1975 amendment. | Distinguished; the Supreme Court noted the case did not address the bar on non-tribals acquiring title in Scheduled Areas. |
| Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande AIR 1923 PC 205 | Inalienable grants (inam/watan) cannot be lost by adverse possession. | Cited illustratively to reinforce that where alienation itself is prohibited, adverse possession cannot confer title. |
| Karimullakhan v. Bhanupratapsingh AIR 1949 Nag 265 | Similar principle that statutory non-alienability defeats claims by adverse possession. | Used, along with the Privy Council decision, to support the bar on non-tribal adverse possession. |
Court's Reasoning and Analysis
Justice Brijesh Kumar held that both grounds on which the High Court interfered were legally flawed:
- Adverse Possession: Relying on Amrendra Pratap Singh, the Court reaffirmed that the doctrine of adverse possession operates only where the right is alienable. Because Regulation 2 of 1956 renders transfers by tribals to non-tribals “absolutely null and void,” a non-tribal cannot initiate or perfect adverse possession against a tribal in a Scheduled Area. Consequently, the High Court’s reliance on adverse possession was misplaced.
- Evidentiary Assessment: The High Court cursorily concluded there was no evidence of tribal ownership. The Supreme Court noted that the appellate authority had analysed earlier suits, settlement records, and long-standing litigation, and had found forcible dispossession. The High Court failed to grapple with these materials or with the burden of proof framework under the Regulation.
- Given these errors, the Supreme Court determined that a comprehensive reconsideration of the factual record, including the effect of previous orders and settlement operations, was necessary.
Holding and Implications
Appeals ALLOWED; High Court judgment set aside; matter remanded to the High Court for fresh hearing and decision.
Immediate consequence: the High Court must rehear the writ petition, taking full account of the protective provisions of Regulation 2 of 1956 and the Supreme Court’s clarification that non-tribals cannot acquire tribal land by adverse possession. No final adjudication of title has been made; rather, the Supreme Court has ensured that the statutory safeguards for tribals are properly applied in the forthcoming proceedings.
Brijesh Kumar, J. The proceedings of these appeals before this Court arise out of Revenue Miscellaneous Cases Nos. 150 to 156 of 1976 filed by the appellants separately against the separate respondents under the provisions of Orissa Regulation 2 of 1956 before the Project Administrator, ITDA, Parlakhemundie and the Additional District Magistrate, Ganjam in the State of Orissa. The cases were filed by the appellants who belong to the 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 Regulation 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 OSD, Parlakhemundie. On appeal, however, the Additional 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 TS No. 16 of 1961 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) Regulations, 1956, known as Orissa Regulation 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:
“2. (f) … mortgage with or without possession, lease, sale, gift, exchange or any other dealing 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)***”
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 coterminous with the boundary indicated in the kabala of 1927 and is to be accepted.”
The Project Administrator, ITDA, Parlakhemundie further observed that as per report of the Revenue Inspector the suit land had been recorded in the names of some of the second-and third-party respondents. It is also observed on the basis of the report of the Revenue Inspector that the petitioners, namely, appellants herein (the tribals) had not raised any objection at any stage of the settlement operation claiming the suit land. It is though not indicated which of the respondents are in possession of the suit land but it is observed that some of them are in possession as per kabala of 1927 for more than 30 years which is the limitation period according to Section 7-D. Therefore, it would not attract Section 3-A(1) of Orissa Regulation 2 of 1956. Accordingly, the trial court dismissed the petitions. The whole order seems to be based on the report of the Revenue Inspector.
5. Aggrieved by the order passed by the trial court, the appellants preferred appeals, separately, which have been numbered as Regulation Appeal No. 1 of 1987 to Regulation Appeal No. 7 of 1987. The Collector and District Magistrate, Ganjam, the Appellate Authority allowed the appeals setting aside the order dated 25-3-1987 passed by the trial court after remand with a direction to restore the possession to the appellants forthwith as per direction given by the trial court in its earlier order. The appellate court observed that the Additional District Magistrate, while remanding the case, only wanted the lower court to give a definite finding as to the identity of the lands with reference to RSD of 1927 entry in ROR and order of title suit of 1961. In this connection the appellate court observed that since the respondents admit possession of the land in dispute as claimed by the appellants, the question of identity in reference to the documents was not much relevant. Actual possession over the disputed land was not disputed. The appellate court then found that the trial court had non-suited the appellants relying upon the evidence of the Amin, whose deposition in cross-examination tallied with the documentary evidence of 1927, but while doing so the earlier report was not taken into consideration at all which supported the case of the appellants. It was observed that the order of the trial court relying on the cross-examination of the Amin was erroneous and incorrect. Thereafter, the appellate court observed that during the settlement operation, whosoever is found in possession, is so recorded accordingly. The respondents have admittedly been in forcible possession since 1958. Hence it was quite obvious that their names were recorded in the revenue records. Hence no reliance could be placed on such records since it is observed that litigation in respect of this land had been going on since long. Thus the appellate court ultimately found that since the appellants were deprived of their possession forcibly by the respondents, they were entitled to be restored back the possession, more particularly, in view of the fact that Regulation 2 of 1956 is meant to protect the rights and privileges of the downtrodden people of the tribal areas and to save them from exploitation by other classes.
6. Aggrieved by the order passed by the appellate court, the respondents filed a writ petition which has been allowed and the order passed by the appellate court has been set aside. The High Court formulated two questions on the basis of which the order of the appellate court was challenged. Firstly, the finding that the land belonged to the members of a Scheduled Tribe was without any evidence or material to sustain any such finding and secondly, since the respondents have been admittedly in possession of the disputed land, taken forcibly since 1958, as per the findings of the appellate court itself, the respondents had acquired title by adverse possession. It is further found that the amendment vide Orissa Regulation 1 of 1975 giving retrospective effect to the period of limitation enhancing it from 12 to 30 years for prescription of right by adverse possession became effective from 2-10-1973 whereas the respondents had already perfected their right on completion of 12 years from 1958 i.e much before 2-10-1973. In this connection, the High Court placed reliance upon a decision of the Orissa High Court in Madhia Nayak v. Arjuna Pradhan (1988) 65 Cut LT 360. Thus, the only two reasons given by the High Court for allowing the writ petition and to set aside the orders passed by the Appellate Authority in different appeals are that the Appellate Authority jumped to the conclusion that the disputed land had been owned and possessed by the appellant (Respondent 5 before the Appellate Authority) without there being any evidence in support of that conclusion and the other reason that the respondents had been in unauthorised occupation of the land in dispute and had perfected their rights by adverse possession.
7. We find that 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 directly on this point. It is in Amrendra Pratap Singh v. Tej Bahadur Prajapati (2004) 10 SCC 65, JT (2003) 9 SC 201. 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 Regulations, this Court found that one of the questions which falls for consideration was “whether right by adverse possession can be acquired by a non-aboriginal on the property belonging to a member of an aboriginal tribe”.( 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 recognised by the 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 in Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande AIR 1923 PC 205 and Karimullakhan v. Bhanupratapsingh AIR 1949 Nag 265, ILR 1948 Nag 978 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 Madhia Nayak (1988) 65 Cut LT 360 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 had that point arisen in the case of Madhia Nayak (1988) 65 Cut LT 360. It is further observed that the provisions of Section 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 a 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 (2004) 10 SCC 65, JT (2003) 9 SC 201 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 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.
8. Again so far as the other question is concerned, namely, the appellate court, according to the High Court, having jumped to the conclusion that the land in question was owned and possessed by the appellants without there being any material on the record, we feel that the High Court has dealt with this aspect very cursorily. There seems to be no dispute about the fact that the disputed land falls in the tribal area. The Appellate Authority, whose judgment has been set aside by the High Court in the writ petition, has dealt with and referred to orders passed in suits filed earlier by different parties and the effect of such orders. The respondents are in possession over the land in tribal area but the appellants pleaded their dispossession at the hands of the respondent non-tribals forcibly. The High Court, without considering all those aspects, as considered by the appellate court, came to the conclusion that the appellate court had jumped to the conclusion about the possession and ownership of the land in favour of the appellants without any evidence. The High Court would better have perused other orders passed by the authorities dealing with the point regarding possession and ownership of land in reference to question of burden of proof.
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 a 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 detail 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 Regulation 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 respondents for allegedly having perfected their rights by adverse possession may also have to be examined.
10. In the result, the appeals are allowed and the order and judgment passed by the High Court is set aside and the matter is remanded to the High Court for fresh hearing and decision after notice to the parties, in the light of the observations made in this judgment. Since the matter is hanging for long, the High Court may perhaps do well to consider for expeditious hearing and disposal of the case.
11. Costs easy.
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