BHAGABAN JENA Vs. SHIBU MAJHI

JUDGEMENT

(1.) THIS is an application under Art. 226 of the Constitution of India for quashing Annexure -11, the appellate order passed by the Additional District Magistrate, Mayurbhanj, declaring transaction of sale in favour of petitioner No 2 as void, being hit by Section 3 (1) of the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 (Orissa Regulation No. 2 of 1956) and directing ejectment of petitioners.

(2.) FACTS of the case lie in a small compass. Petitione No. 2 Labanyamani purchased four Manas and odd of lands spread over eight plots in mouza Nuagaon from one Sankhala Majhi, a member of Scheduled Tribe by registered sale deed dated 20 -9 -1957. On the same day, Sankhala applied before the S. D. O., Baripada, for permission to sell the aforesaid lands in favour of petitioner No. 2 and the same was allowed on 16 -12 -1957. Thereafter on 23 2 -1981, opp. party No. 1 Shibu Majhi, claiming tn be the successor of Sankhala, prayed for restoration of possession alleging illegal possession by petitioner No. 1, the husband of petitioner No. 2. The prayer was opposed by both the petitioners. By Annexure -9, the Revenue Officer came to find that the transfer in question having taken place without previous consent of competent authority was void Under Section 3'1) of Regulation 2 of 1956, but the continuity of possession of the lands in question by the petitioner from 1957 till 1973 conferred title on her. In appeal, Additional District Magistrate, Mayurbhanj, by Annexure -11 has reversed the finding of title by adverse possession and passed the impugned order of ejectment.

(3.) THE petitioner's assertion in this proceeding that they are in continuous, uninterrupted and peaceful possession of the lands in question since their purchase on 20 -9 -1957 is not denied in the counter filed by opp. party No. 1. The Revenue Officer has categorically found that the petitioners were in continuous possession of the lands in question from 1957 till 1973, The learned Additional District Magistrate has observed at one stage that to pass the decision in the matter of perfection of title by way of adverse possession is the competency of the Civil Courts. He has reiterated at a subsequent stage that the perfection of title by adverse possession has not been established by a Court of competent jurisdiction and the mere fact that opp. party No. 1 admitted possession of petitioner No 1 is not sufficient to prove adverse possession. Thus the Additional District Magistrate has discarded the petitioners' case of title by adverse possession only because there did not exist a decision of the Civil Court on this point. Patently he has committed an error of law. In the facts of the case, the Revenue Officer was quite competent under the law two decide the question of adverse possession.