K ADIKANDA PATRA Vs. GANDUA

JUDGEMENT

(1.) This is an application for a writ of certiorari to quash the proceeding initiated against the petitioners under Orissa Regulation No. 2 of 1956 directing restoration of possession of the properties to opposite parties Nos. 1 to 3 by ejecting the petitioners therefrom.

(2.) The disputed land known as 'Jholla Billa' measuring about 10 acres is situated in village Tadakasahi within Ramagiri police station of Parlakhemundi Sub-division in the district of Ganjam. Boisomo Pradhano, father of opposite parties Nos. 1 to 3, had borrowed money from late K. Kasi Patra, father of petitioners Nos. 1 to 6. Money Suit No. 16 of 1958 was filed in the court of the Munsif, Berhampur for realisation of the debt. The suit was decreed in favour of late K. Kasi Patra and Execution Case (E. P. No. 205 of 1959) was filed for executing the decree. During the pendency of the execution proceeding K. Kasi Patra died and the proceeding was carried on by his legal representatives. The disputed land was put to court auction on 27-3-1961. The petitioners being the highest bidders were declared as auction purchasers. The sale was confirmed on 13-5-1961 and, the certificate of sale was issued on 16-7-1961 and the petitioners took delivery of possession of the disputed land. In the year 1971 opposite parties Nos. 1 to 3 and their late father Boisomo Pradhano started creating trouble in the disputed land and a proceeding under Section 145 Cr. P. C. was started in which the petitioners were found to be in possession of the same by order dated 28-12-1971, Thereafter opposite parties Nos. 1 to 3 filed Title Suit No. 6 of 1972 before the Munsif, Parlakhemundi (which was subsequently renumbered as Title Suit No. 31 of 1973 and was taken to the file of the Subordinate Judge, Parlakhemundi) against the petitioners and their father Boisomo Pradhano for a declaration of right, title and interest over the suit land. In the said suit it was alleged, inter alia, that the plaintiffs (opp. parties 1 to 3) are members of Scheduled Tribe and that the sale of the suit land in court auction without previous permission of the competent authority is absolutely null and void in view of the provisions of Orissa Regulation No. 2 of 1956 (hereinafter referred to as the 'Regulation'). The learned Subordinate Judge held that the suit land is situated in the scheduled area, but it is doubtful if the plaintiffs (opp. parties 1 to 3) are members of the Scheduled Tribe. It was further held that the suit is barred by constructive res judicata. So the suit was dismissed with costs. Thereafter Title Appeal No. 40 of 1974 was preferred against the judgment and decree passed by the Subordinate Judge before the? District Judge, Ganjam-Boudh which is sub judice. During the pendency of the Title Appeal Boisomo Pradhano, father of opp. parties Nos. 1 to 3, died. During the pendency of the Title Suit, on 29-9-72 opposite parties Nos. 1 to 3 filed an application against the petitioners and their father Boisomo Pradhano under Sections 3 (2), 6 and 7 of the Regulation before the Officer on Special Duty (opposite party No. 5) praying for restoration of the suit land alleging that they belong to Scheduled Tribe and were in possession of the suit land till the same were put under attachment in the proceeding under Section 145 Cr. P. C. and that the sale of the disputed land in court auction to the auction purchasers who are not members of Scheduled Tribe without the previous consent in writing of the competent authority is in contravention of the provisions of the Regulation. The Officer on Special Duty (Opp. Party No. 5) by his order fin R. M. C. No. 109/ 72) observed that the petitioners therein (Opp. Parties 1 to 3) are members of Scheduled Tribe. He held that as no prior permission from the competent authority was obtained as contemplated under Section 3 (1) of the Regulation, the sale in execution of the money decree was directly hit under Section 6 of the Regulation. He however held that though several opportunities were available to raise such a question either in the Money Suit or in the execution proceeding the petitioners (Opp. Parties 1 to 3) having not availed of the opportunities are debarred from raising such a plea at this stage under the principles of constructive res judicata and accordingly dismissed the application by his order dated 30-4-74 (Annexure-3). Against the aforesaid, order in Annexure-3 opp. parties Nos. 1 to 3 preferred Regulation Appeal No. 3 of 1974 under Section 3(3) of the Regulation before the District Magistrate (Opp. Party No. 4), who allowed the same by his order dated 21-9-77.

(3.) Mr. Ratho, learned counsel for the petitioners, submitted that admittedly opp. parties Nos. 1 to 3 claimed to be "Jarasavar" and in the Presidential Order of 1950 (hereinafter referred to as the 'Order') so far as Orissa is concerned there is no classification as "Jarasavar" and it was not for the opposite parties Nos. 4 and 5 to construe the entry "Savar" (in Entry No. 59) and say that "Savar" would be the same class as "Jarasavar". In support of his above contention he cited some decisions reported in AIR 1965 SC 1269, 1557; AIR 1969 SC 597; AIR 1971 SC 2533; AIR 1980 SC 150; 1973 (2) Cut WR 990; (1969) 35 Cut LT 55 : AIR 1969 Ori 220; 1974 (2) Cut WR 962; and 1977 (2) Cut WR 681, and the decision in O. J. C. No. 263 of 1974 of this Court decided on 21-1-1976. On the other hand, Mr. Mohapatra, learned counsel appearing for opp. parties Nos. 1 and 2, relies on the decisions reported in AIR 1971 SC 2533 (referred to by Mr. Ratho), AIR 1978 SC 1820 and (1980) 49 Cut LT 47 : (1979 Lab IC 1438).