JUDGMENT
S.K. Mohanty, J.
1. This is an application under Art. 226 of the Constitution of India for quashing Annexure-11, the appellate order passed by the Additional District Magistrate, Mayurbhanj, declaring transaction of sale in favour of petitioner No 2 as void, being hit by Section 3 (1) of the Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 (Orissa Regulation No. 2 of 1956) and directing ejectment of petitioners.
2. Facts of the case lie in a small compass.
Petitione No. 2 Labanyamani purchased four Manas and odd of lands spread over eight plots in mouza Nuagaon from one Sankhala Majhi, a member of Scheduled Tribe by registered sale deed dated 20-9-1957. On the same day, Sankhala applied before the S. D. O., Baripada, for permission to sell the aforesaid lands in favour of petitioner No. 2 and the same was allowed on 16-12-1957. Thereafter on 23 2-1981, opp. party No. 1 Shibu Majhi, claiming tn be the successor of Sankhala, prayed for restoration of possession alleging illegal possession by petitioner No. 1, the husband of petitioner No. 2. The prayer was opposed by both the petitioners. By Annexure-9, the Revenue Officer came to find that the transfer in question having taken place without previous consent of competent authority was void Under Section 3’1) of Regulation 2 of 1956, but the continuity of possession of the lands in question by the petitioner from 1957 till 1973 conferred title on her. In appeal, Additional District Magistrate, Mayurbhanj, by Annexure-11 has reversed the finding of title by adverse possession and passed the impugned order of ejectment.
3. Counsel for the petitioners did not challenge the finding that the transaction of sale being in favour of petitioner No. 2, who was not a member of Scheduled Tribe, was null and void having been entered into without prior consent in writing of competent authority but contended that she having entered into possession of the lands in question on the strength of the sale deed and remained in possession for more than 12 years, perfected her title by adverse possession and the learned Additional District Magistrate erred in law in reversing this finding.
4. The petitioner’s assertion in this proceeding that they are in continuous, uninterrupted and peaceful possession of the lands in question since their purchase on 20-9-1957 is not denied in the counter filed by opp. party No. 1. The Revenue Officer has categorically found that the petitioners were in continuous possession of the lands in question from 1957 till 1973, The learned Additional District Magistrate has observed at one stage that to pass the decision in the matter of perfection of title by way of adverse possession is the competency of the Civil Courts. He has reiterated at a subsequent stage that the perfection of title by adverse possession has not been established by a Court of competent jurisdiction and the mere fact that opp. party No. 1 admitted possession of petitioner No 1 is not sufficient to prove adverse possession. Thus the Additional District Magistrate has discarded the petitioners’ case of title by adverse possession only because there did not exist a decision of the Civil Court on this point. Patently he has committed an error of law. In the facts of the case, the Revenue Officer was quite competent under the law two decide the question of adverse possession.
5. Regulation 1 of 1975, introduced Section 7-D to Orissa Regulation 2 of 1956 giving limited retrospective operation, that is with effect from 2-10-1973. Section 7-D enlarged the period of limitation prescribed in Art. 65 of the Limitation Act from 1?. years to 30 years in respect of immovable property belonging to a member of Scheduled Tribe. This provision would not cover cases where title stood extinguished by 12 years of adverse possession under the general law. It has been so held in Madhia Naik v. Arjuna Pradhan : 65(1988) CLT 360. Applying this legal position to the facts of the case, there is no escape from the conclusion that in fact the petitioner No. 2 was in adverse possession continuously for more than 12 years long before Section 7-D came into effect and there was extinguishment of right of Sankhala and his successors to case land in view Section 27 of the Limitation Act. When no action for possession by Sankhala or any of his successors could have been maintained after expiry of 12 years from 1957 in view of limitation under Art. 65 of the Limitation Act, there was no scope for eviction of petitioners under Regulation 2 of 1956. This conclusion also finds support from following two decisions of this Court. In Indramani Jena v. Dandasi Paik : 50( I980) CLT 368, restoration of possession was prayed for under Regulation 2 of 1956. The prayer was disallowed on a finding that the opponents had perfected their title by being in possession for more than 12 years by 1971 when the prayer for restoration was made, In Dama Meher v. Champeswar Bentkar : 1988 (I) OLR 164, (1987) CLT 516, at page 622, it has been held that possession pursuant to invalid sale through sale deed dated 30-3-1964 would be adverse by the time Section 23-A of the Orissa Land Reforms Act came into force and defendant would be held to have prescribed title by being in possession for more than 12 years and therefore the Revenue Officer will not be in a position to restore possession to plaintiffs in the case Under Section 23-A of the said Act. Provisions of Section 23-A of Orissa Land Reforms Act and Orissa Regulation 2 of 1956 are in petti materia.
6. In the premises aforesaid, the writ application is allowed. Annexure-11 is quashed and the impugned order of ejectment is set aside. There shall be no order as to costs,