TRILOCHAN DANDSENA Vs. STATEFB

JUDGEMENT

(1.) In this writ petition under Articles 226 and 227 of the Constitution, the Full Bench is called upon to record an answer to the following question:-

(2.) Basic factual background is: Linga Bariha (O. P. No. 5) - a Scheduled Tribe person - filed on 10-2-1983 an application under Section 23 of the Orissa Land Reforms Act (";the Act";) - brought into force from 1-10-1965 - for restoration of possession of his land from Trilochan Dandsena and another (the petitioners) - the non-Scheduled Tribe persons. The basis was that the registered sale deed dated 11-11-1967 executed by C. P. No. 5 in favour of the petitioners transferring the land for a consideration of Rs. 1,400/- was void and inoperative in law being in contravention of Section 22 of the Act, as it was obtained without permission of the Revenue Officer. The petitioners defended the possession on the ground that they are in possession of the property with effect from 25-3-1961 on the basis of an unregistered sale on paying the full consideration of Rs. 1,400/and had acquired title by adverse possession before 2-10-1973 from which date Section 23B (inserted by Act No. 44 of 1976) was brought into force. By Section 23-B, two changes are brought about (1) the period of 12 years contemplated by Article 65 of the Limitation Act has been enhanced to 30 years for the limited purposes of proceedings under Section 23 of the Act, and (2) burden to prove the transaction as valid is placed on the transferee. No party led any oral evidence. The Sub-Divisional Officer rejected the defence and ordered restoration of possession. The Additional District Magistrate, however, allowed the appeal filed by the petitioners. The Collector reversed the order passed by the appellate authority and restored the order of the S.D.O.

(3.) Aggrieved by the order of the Collector, the petitioners filed this writ petition and in course of hearing relied upon a Division Bench decision of this Court in the case of Ranjit Sahu v. Chintamani Sethi, (1990) 1 Orissa LR 289, in which claim of acquisition of title by adverse possession on the basis of two transactions, one of unregistered sale dated 1-4-1962 and the other of a registered sale deed 15-1-1966, but in contravention of Section 22 of the Act, was upheld. The learned Judges bearing the present matter expressed doubts about the correctness of the ratio of that decision and hence this reference to Full Bench was made.