SMT. SURJYOMANI BHOTTO Vs. DOINU NAIKO AND ORS.
LAWS(ORI)-1973-11-18
HIGH COURT OF ORISSA
Decided on November 28,1973

Smt. Surjyomani Bhotto Appellant
VERSUS
Doinu Naiko And Ors. Respondents

JUDGEMENT

B.K.Patra, J. - (1.) THIS is an application under Articles 226 and 227 of the Constitution praying for the issue of a writ of certiorari quashing the order dated 30 -9 -1972 passed by the Collector, Koraput in O.S.A.T. 1. P.R. Appeal No. 13 of 1971.
(2.) OPPOSITE party No. 1 Doinu Naik, is a member of the scheduled tribe. The Orissa Scheduled Areas Transfer of Immoveable Property (By Scheduled Tribes) Regulation. 1956 (Orissa Regulation No. 2 of 1956)(hereinafter referred to as the Regulation) provides in Clause 3(1) thereof that notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area, by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority. On 17 -1 -1959, opposite party No. 1 executed a sale deed in favour of the Petitioner herein, who admittedly is not a member of a Scheduled Tribe, in respect of 16.80 acres of land for a consideration of Rs. 4000/ -. It is not disputed before us that before executing the sale deed, he had obtained the necessary permission from the Revenue Divisional Officer, Nowrangpur who is the competent authority. Out of the 16.80 acres of land covered by the sale deed, possession in respect of 8.75 acres of land was delivered to the Petitioner and possession in respect of the balance 8.05 acres of land was not given. The Petitioner, therefore, instituted a suit on 27 -7 -1959 in the Court of the Munsif, Jeypore being Title Suit No. 41 of 1959 against opposite party No. 1 and his brother Bhagaban Naiko praying for declaration of his title in respect of the aforesaid 8.05 acres of land and for recovery of possession thereof, or, in the alternative, for recovery of Rs. 2,000/ - from opposite party No. 1. On 2 -2 -1961. a compromise petition was filed in Court signed by the Petitioner as Plaintiff and by opposite party No. 1 and his brother Bhagaban Naiko who were Defendants in the suit. Annexure -1 is the compromise petition. To the compromise petition is appended a schedule. Schedule (a) consists of three plots with a total area of 8.75 acres, said to be in possession of the Plaintiff in the suit. Schedule (b) consists of three plots with a total area of 4.76 acres said to be in possession of Defendant No. 2 Bhagaban Naiko. Schedule (c) consists of three plots with a total area of 3.29 acres said to be in possession of Defendant No. 1 Doinu Naiko. Obviously after the execution of the sale deed, the Petitioner was given possession of the lands mentioned in Schedule (a) above, but was not given possession of the lands mentioned in Schedules (b) and (c), and the suit filed by him was to recover possession of the (b) and (c) schedule lands, having a total area of 8.05 acres. Under the compromise, the Defendants agreed to pay Rs. 2,000/ - to the Plaintiff (Petitioner) on or before 1 -5 -1961 and in default thereof to deliver to the Plaintiff the disputed lands. There was a further clause in the compromise petition that if after payment of Rs 2,000/ - referred to above, a further sum of Rs. 2,500/ - was paid to the Plaintiff by the Defendants before the Phalguna Pumima of 1962, the sale deed executed by Defendant No. 1 on 13 -1 -1959 in favour of the Plaintiff would stand cancelled in which event the Plaintiff would deliver back to the Defendants the 8.75 acres of land of which he had already taken possession. Admittedly, the Defendants did not pay to the Plaintiff (Petitioner) the sum of Rs. 2,000/ - and therefore on 10 -5 -1961 the Petitioner took delivery of the 8.05 acres of land through Court. Thereafter, in the year 1970, Dainu Naiko (opposite party No. 1) filed a petition under Clause 3(2) of the Regulation before the Sub -Divisional Officer praying for restoration to him of the 16.80 acres of land on the ground that the land had been transferred to the Petitioner without necessary permission from the competent authority. The Sub -Divisional Officer, it seems, on 16 -11 -1971 held inter alia that opposite party No. 1 had obtained permission from the competent authority to sell 16.80 acres of land to the Petitioner and that consequently he was not entitled to any relief. Against the order passed by the Sub -Divisional Officer, opposite party No. 1 filed an appeal before the Collector. He, in agreement with the Court below, held that prior to the execution of the sale deed, Dainu : Naiko had obtained necessary permission from the competent authority to execute the sale deed. But he found that out of the 16.80 acres of land covered by the sale deed, Dainu Naiko was entitled to and was in possession of only 12.04 acres of land and that the remaining 4.76 acres of land belonged to his brother Bhagaban Naiko who was in possession thereof. It may be mentioned here that the 4.76 acres of land correspond to the lands mentioned in Schedule (b) of the compromise petition - Annexure 1. He, therefore, allowed the appeal in part and ordered restoration of the 4.76 acres of land. Although it is not clear from the order as to whom the lands were to be restored, it is the admitted case of the parties that the 4.76 acres of land were restored to opposite party No. 1.
(3.) SEVERAL contentions were raised in the writ petition. It is stated firstly that the Collector erred in coming to the conclusion that the 4.76 acres of land belonged to Bhagaban Naiko. Secondly assuming that Bhagaban was the owner of the land, his title was extinguished by reason of the Civil Court decree Annexure 2 which remained unchallenged. In any case, the Collector had no jurisdiction to order restoration of the 4.76 acres of land in the absence of any application by Bhagaban himself.;


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