R.C.Lahoti, J. - (1.) THE suit property consists of a piece of agricultural land situated in Sundergarh area of Mouza Durgapur, Rourkela. Prior to the year 1962, the property belonged to Chand Oram and Pera Oram. Both of them belong to oraon tribe, which is a scheduled tribe in the State of Orissa as notified vide the Constitution Schedule Tribe Order, 1950 issued in exercise of the power conferred by clause (1) of Article 342 of the Constitution of India. On 21.12.1962 Chand and Pera transferred their right and interest in 0.75 decimals of land in favour of one Mangal Singh Manki. THE said Mangal Singh Manki was also a person belonging to a scheduled tribe. Mangal Singh Manki, after obtaining the permission of the Sub-Divisional Officer, Pamposh. sold 0.40 decimals of land by a registered deed of sale dated 7.4.1964 executed in favour of one Ratnamani Mohapatra, and on the same day by another registered deed of sale transferred the remaining 0.35 decimals of land to one Harihar Pradhan. On 6.9.1975 Dr. Amarendra Pratap Singh, the plaintiff-appellant purchased 0.195 decimals of land out of 0.40 decimals from Ratnamani Mohapatra. It is this land purchased by the plaintiff-respondent which forms the subject-matter of dispute. This land belonging to the plaintiff has come to be numbered as plot No. 1147/1.
(2.) ACCORDING to the plaintiff he raised construction in the year 1965 over 0.05 decimal area out of the land purchased by him. When he proposed to raise construction over the remaining area, he was obstructed in doing so by Harihar Pradhan, the. owner of the adjoining land, whereupon the plaintiff got in touch xvith his predecessor in- title Smt. Ratnamani Mohapatra. It was detected that in the map attached with the Sale Deed dated 6.9.1965 there was some error in description of the land forming the subject-matter of sale. Smt. Ratnamani Mohapatra executed a deed of rectification dated 31.8.1968 in favour of the plaintiff-appellant, after having the land demarcated by Amin. During the course of demarcation proceedings it was found that the defendant-respondent No.l had also purchased some land under a registered deed of sale dated 25.4.1967 from Chand and Pera and constructed two buildings thereon. However, the defendant-respondent No. 1 who had purchased land plot No. 1119 (new plot No. 957), had also encroached upon some portion of land of plot No. 1147 (new plot No. 956) belonging to the plaintiff-appellant. The dispute between the parties led to the initiation of proceedings under Section 145 of the Code of Criminal Procedure. In the year 1970 the plaintiff-appellant filed a suit for declaration of title, recovery of possession and issuance of permanent preventive injunction against the defendants. The defendant Nos. 1 to 3, who are the principal contesting defendants, denied the title of the plaintiff and pleaded their title by way of adverse possession over the suit land. The Trial Court decreed the suit and directed possession over the suit property to be restored to the plaintiff after demolition of the construction of the defendant No. 1 standing on the suit land. The defendant No. 1 preferred an appeal to the High Court. The High Court found the title of the plaintiff-respondent No. 1 to be proved but at the same time held that defendant No. 1 to have been in adverse possession over the property for the prescribed statutory period of 12 years, and therefore held the plaintiff-respondent No. 1 not entitled to a decree in the suit. The High Court reversed the judgment and decree of the Trial Court and directed the suit to be dismissed. Feeling aggrieved, the plaintiff has filed this appeal by special leave.
(3.) ON behalf of the plaintiff-appellant the correctness of the finding as to defendant No. 1-respondent being in adverse possession of the property and having perfected his title by being in continuous and uninterrupted possession of the property for a period exceeding 12 years' time was seriously disputed, however, we are not inclined to enter into any revaluation of evidence and dislodge the finding of fact arrived at by the High Court. We would therefore proceed on an assumption that the defendant-respondent No. 1 has remained in possession of the property for a period of more than 12 years before the date of the institution of the suit. The real question is - whether he can be said to have perfected his title by way of adverse possession? This question assumes significance because of the fact that the original owners of the land, namely, Chand and Pera, were persons belonging to a scheduled tribe and their successor-in-title Mangal Singh Manki was also a person belonging to the scheduled tribe. The Orissa Merged States' Laws Act, 1950 was enacted by the Legislative Assembly of Orissa for the purpose of extending certain Acts and Regulations to certain areas administered as part of the State of Orissa. It received the assent of the Governor on 26.2.1950, which was published in the Orissa Gazette on 3.3.1950 and on that date the Act came into force. Section 7 of the Act, in so far as is relevant for our purpose, provided as under: "7. Modification of Tenancy Laws in force in the merged States Notwithstanding anything contained in the tenancy laws of the merged States as continued in force by virtue of Article 4 of the States Merger (Governor's Provinces) Order, 1949- (b) an occupancy tenant shall be entitled- (i) to freely transfer his holding subject to the restriction that no transfer of a holding from a member of an aboriginal tribe to a member of a non-aboriginal tribe shall be valid unless such transfer is made with the previous permission of the Sub-divisional Officer concerned; (ii) to have full right over all kinds of trees standing on his holding: (iii) to use the land comprised in the holding in any manner which does not materially impair the value of land or render it unfit for the purposes of the tenancy: (iv) to the benefit of the presumption by any Court that the rent for the time being payable by him is fair and equitable until the contrary is proved; Explanation (i) An 'occupancy tenant' means tenant or a raiyat having occupancy right in his holding under the tenancy laws continued in force in the merged States; (ii) an 'aboriginal tribe' means any tribe that may from time to time be notified as such by the State Government; ;