JAHNA SATAPATHY Vs. SATYABADI BEHERA AND ANOTHER

JUDGEMENT

(1.) Aggrieved by and dissatisfied with the order dated 7.12.1996 passed by the Commissioner of Consolidation, Orissa, Bhubaneswaropposite party no.2 in Revision Case No.3038 of 1993, under Annexure-5, the petitioner has filed this writ application. By the said order, opposite party no.2 allowed the application filed by opposite party no.1 under Section 37 (1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 and held that alienation of land made by opposite party no.1 in favour of the petitioner under Section 22(5) of the Orissa Land Reforms Act is void and directed to prepare the record in favour of opposite party no.1.

(2.) Bereft of unnecessary details, the short facts of the case of the petitioner are that he had purchased a piece of land appertaining to sabik khata no.138, sabik plot no.182, measuring an area AO.38 dec, mouzaKharagaon, P.S.Gop in the district of Puri from opposite party no.1 by means of a registered sale deed no.460 dated 24.2.1976 for a consideration of Rs.500/-, which corresponds to hal khata no.135, hal plot no.579, area AO.33 dec. In the sale deed opposite party no.1 mentioned that he does not belong to scheduled caste and that he belongs to the caste 'Kaibarta'. The consolidation record of right was published in favour of the petitioner. While the matter stood thus, opposite party no.1 filed an application under Section 37(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as "the Act") before the Commissioner of Consolidation, Orissa, Bhubaneswar-opposite party no.2 being R.C.No.3038 of 1993 stating therein that he intended to mortgage the land in question to the petitioner by a registered sale deed no.460 dated 24.2.1976, but the same was styled as sale deed. He is a member of scheduled caste. Without obtaining the prior permission from the authorities under the Orissa Land Reforms Act (hereinafter referred to as "the OLR Act"), the sale deed was executed and as such the same is void. It was further stated that basing on the said deed, the consolidation authorities prepared the record of right in favour of the petitioner and directed to correct the record. Pursuant to issuance of notice, the petitioner entered appearance and submitted that at the time of execution of sale deed, opposite party no.1 endorsed therein that he does not belong to scheduled caste. In the Mutation Proceeding, he reiterated the same. At the time of execution of sale deed on 24.2.1976, the caste 'Kaibarat' to which opposite party no.1 belongs to, was not included in the list of scheduled caste. The sale deed was executed for valid consideration and he is in peaceful possession over the land. Opposite party no.2 came to hold that the caste of opposite party no.1 is Kaibarta. In view of decision of this Court, Kaibarta is part of Dewar Caste. Since it is clarificatory in nature, it has retrospective effect. Further as per Section 22 (5) of O.L.R. Act, transfer by a member of scheduled caste to non-scheduled caste is void. Adverse possession in such cases arises after 30 years. Thus question of prescriptive title does not arise. Mutation by Tahasildar does not alter the legal position. Held so, opposite party no.2 allowed the application on 7.12.1996 and directed to prepare the record in the name of the petitioner.

(3.) Heard Mr.G.C.Mohapatra, learned counsel for the petitioner and Ms. Sanjivani Mishra, learned Additional Standing Counsel for opposite party no.2. None appeared for opposite party no.1.