Madhia Nayak v. Arjuna Pradhan & Others Opp. Parties.

R.C Patnaik, J.:— This is an application under Artic-les 226 and 227 of the Constitution of India for the quashing by issue of certiorari of an appellate decision, reversing the decision of the original authority and granting the application of the opposite party No. 1 for restoration of possession to him under the provisions of the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation (Orissa (Regulation 2 of 1956).

2. Opposite party No. 1 is a member of the Scheduled Tribe. He filed an application under section 3 of Regulation 2 of 1956 alleging that the disputed property which was situated in the scheduled area was transferred by him, by way of mortgage-a portion in favour of one Gahi Nayak transferred the land mortgaged with him to the petitioner. Gahi Nayak and the petititioner were not members of the Scheduled Tribe, Therefore, the transfer by opposite party No. 1 in their favour, without permission of the prescribed authority, was void and the possession of the petitioner of the disputed property was unauthorised. He sought restoration of possession under the provisions of the Regulation. The Special Officer (opposite party No. 2) upon a consideration of the materials placed before him by the parties rejected the application as per his decision in Annexure-1. On appeal, opposite party No. 3 set aside the decision of the original authority and remitted the matter to the latter for further enquiry vide Annexure-2. The special Officer visited the spot and in presence of the parties, recorded evidence of witnesses examined as Court witnesses. The peti-tioner and opposite party No. 1 declined to cross-examine the said witnesses. Upon a consideration of the evidence, the Special Officer again rejected the application filed by opposite party No. 1 by judgment dated 14-11-1977 as per Annexure-3. An appeal was carried by opposite party No. 1. By judgment dated 14-6-1978 in R.M.A No. 29/77 the appellate authority vacated the decision of the original authority and allowed the prayer of opposite party No. 1 for restoration of land to him vide Annexure-4. Mr. C.V Murty, the learned counsel for the peti-tioner, has contended that the decision of the appellate authority is vitiated by errors of record and the appellate authority has committed grave errors of procedure. The appellate authority proceeded more on the basis of conjectures and surmises than on evidence. Opposite party No. 1 has not entered appear-ance. The learned Additional Standing Counsel has canvassed the correctness of the judgment.

3. The first judgment of the original authority as per Annexure-1 was set aside by the appellate authority vide Annexure-2 and the matter was remitted for further enquiry and disposal. Hence, it is too elementary that the first decision of the original authority did not exist in the eye of law but copious reference has been made thereto by the appellate authority in the impugned judgment, Annexure-4. Even reliance has been placed on certain findings recorded in Annexure-1 which were not available to be referred to. I extract a few portions from the judgment of the appellate authority to drive home the point:

“I have gone through the evidence recorded by the learned lower Court at the first instance and the judgment passed on the basis of that evidence. From the evidence and also from the judgment of the learned lower Court it is clearly noticed that the suit land belonged to the petitioner-Adibasi which was mortgaged with Gahi Naik and the opposite party in different parcels. In the first judgment passed by the learned lower Court he has clearly recorded this fact in the very outset of his judgment, in the following terms………. I find that this conclusion of the learned lower Court is fully supported by the evidence recorded by him from the witnesses examined by him at the first instance. If this was so, there could be no possibility of the suit land becoming the ancestral property of Gahi Naik at a subsequent enquiry held by the learned lower Court on the direction of the appellate Court by examining some witnesses as Court witnesses and that in the absence of the petitioner. Once the suit land has been found to be the land belonging to an Adibasi which has been purchased by a non-Adibasi by putting up a middle man vendor Gahi Naik to hoodwink the provisions of law, it can-not subsequently be held that the transfer by the middle man vendor is valid as the petitioner never possessed the same……”

4. And again the appellate Court observed:

“…… With these facts of law in evidence the very first judgment of the learned lower Court deserved to be set aside and the claim of the Adibasi for restora-tion of his land accepted. But unfortunately, the matter was again referred to the lower Court by the appellate Court for taking fresh evidence. The learned lower Court while doing so, examined some more wit-nesses as Court witness in the absence of the petititioner and came to the conclusion that neither the petitioner nor his father ever enjoyed the land and hence his claim should be rejected. In coming to this conclusion he has not only wiped out the result of his conclusion on the basis of evidence formerly recorded by him……”

5. This was a grave error of procedure and ignorance of fundamenal principles. When the first judgment of the original authority was set aside and did not exist in the eye of law, no reliance could be placed on the findings recorded therein Nor could the decision given in appeal by the predecessor of opposite party No. 3 in office be criticised. By the earlier judgment as per Annexure-2 the appellate authority did not confirm the decision of the original authority in part, that is to say, did not uphold some findings while remitting the matter for fresh disposal by the original authority as regards the rest of the questions. The entire judgment was set aside and it was an open remand with a direction to take a fresh evidence. Hence, it was obligatory on appellate authority to reconsider the correctness of the judgment delivered by the original authority as per Annexure-3 with reference to the evidence on record. Therefore, the criti-cism of Mr, Murty that the appellate authority committed a fundamental error in its approach is unassailable.

6. The appellate authority has also committed an error of record when it observed that the evidence was recorded ex parte by the original authority after remand in the absence of opposite party No. 1. After remand the original authority posted the matter for enquiry at the spot on 6-9-1977. Both parties were present at the camp. In their presence the Court witnesses were examined and they did not like to adduce any further evidence. The Special Officer prepared a sketch-map at the spot. Signatures of the parties and other villagers who were present at the spot were taken. The sketch map prepared by the special Officer is at page 56 of the lower Court record. Signature of opposite party No. 1 appears at Sl No. 2 and that of the petitioner at Sl No. 1. Fourteen other persons had signed the said documents. It also transpires from the deposition of Court witnesses recorded by the Special Officer that day that both parties declined to cross-examine the said witnesses. It seems that the appellate authority did not care to verify the records while observing that opposite party No. 1 was absent at the enquiry after remand and evidence was recorded in his absence.

7. On merits also the appellate judgment is unsupportable. Opposite party No. 1 filed the application for restoration of land alleging transfer by him of his land in favour of Gahi Naik and the petitioner. Except his bare claim there was no acceptable evidence to support the same. The Court witnesses categorically stated that he was never in possession of the land. The land was in possession of Gahi Naik and thereafter of the petitioner. Even his own witnesses Anam Pradhan (witness No. 2 for the first party) deposed that he did not know if the suit land belonged to Gahi Naik and if opposite party No. 1 purchased it from Gahi Naik. The original authority upon a consideration of the evidence categorically recorded a finding that except the petitioner there was no other witnesses to corroborate the petitioner that he transferred the land. The appellate authority has not attempted to upset this finding with reference to evid-ence on record. It seems that the appellate authority has assumed that opposite party No. 1 had title to the property. Unless admitted by opposite party No. 1, the burden was on the appellant to establish that the property belonged to him and a person not being a member of the Scheduled Tribe was in possession pursuant to an invalid transfer or unauthorisedly. The appellate decision as per Annexure-4 is, therefore, not sustainable.

8. Assuming that opposite party No. 1 had title to the property, the petitioner is in possession of the same since 1958. What is the consequence in law. The appellate Court has recorded in the following manner:

“……The present transaction relates to the year 1958 which is hardly 20 years old, and hence even the question of adverse possession of Adibasi land by a non-Adibasi is out of question………”

9. The present proceeding was initiated in 1975; to be precise the application was filed on 26-7-1975. By then the petitioner was in possession of the land for more than 17 years. The appellate authority was probably under a mis-apprehension of law, namely, adverse possession of 30 years only could extinguish the title of a member belonging to the scheduled tribe under the provisions of Regulation 2 of 1956. Under the general law title stood extinguished by 12 years of adverse possession. By Orissa Regula-tion 1 of 1975 which received the presidential assent on 12th December, 1975 and published in the Orissa Gazette on 19th December, 1975. Section 7D was introduced substituting ‘30 years’ in place of ‘12 years’ in relation to immovable property belonging to a member of a Scheduled Tribe. That provision had limited retrospective operation i.e from 2-10-1973, and hence, would not govern cases where title stood extinguished by operation of law as it existed prior to the amendment by Orissa Regulation 1 of 1975. Under Section 27 of the Limitation Act, title of opposite party No. 1 having stood extinguished on the expiry of 12 years from the date of his dispossession, that is, around 1970. Section 7D Regulation 1 of 1975 which came into force with effect from 2-10-1973 does not revive title which was lost before that date. Therefore, the appellate authority was not right in holding that opposite party No. 1 did not lose title by the date of his application. In the result, we quash Annexure-4 and allow the writ application. Inasmuch as there was no appearance for opposite party No. 1, there would be no order for costs.

D.P Mohapatra, J.:— I agree.

10. Writ application allowed.