JUDGMENT
P.C. Misra, J.
1. This writ application arises out of a proceeding under the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 (Regulation 2 of 1956) (hereinafter referred to as the “Regulation”). The petitioners have been aggrieved by the order of the Officer on Special Duty (Annexure 4) directing restoration of possession in respect of Ac. 3.750 decimals of land in favour of the present opp. parties of which the petitioners had been continuing in possession. The aforesaid order of the Officer on Special Duty has been confirmed by the Additional District Magistrate. Chhatrapur exercising appellate jurisdiction in Annexure-7. The prayer in the writ application is to quash Annexures 4 and 7.
2. The brief facts leading to the present case are as follows:
The petitioners are the legal heirs of Raghunath Gouda who had purchased the disputed properties some in 1959 and the rest
in 1961. The present opp. party No. 1 initiated a proceeding under Regulation 2 of 1956 before the Officer on Special Duty. Parlakhemundi for restoration of possession thereof on the self same allegations, but the same was dismissed by order dated 27-11-1972 in R.M.C. No. 84/72. The opp. party No. 1 again filed an application in 1979 praying for the very same relief out of which the present writ petition arises. It has been alleged that the application filed in 1979 was barred by the principle of res judicata as restoration of possession was sought for in respect of the very same land which was the subject matter in the earlier proceeding and relief was prayed for on identical grounds. The Officer on Special Duty after considering the evidence led by both parties dismissed the said application by order dated 31-10-1980, copy of which is Annexure-1 to the writ application. The present opp. party No. 1 carried up the Matter in appeal (Regulation Appeal No. 1/81) and the Additional District Magistrate after hearing both parties did not agree with the finding of the Officer on Special Duty that the proceeding is barred by res judicata and remanded the case for fresh enquiry and disposal by the Officer on Special Duty vide Annexure-2. On remand the Officer on Special Duty allowed the application of the present opp. party No. 1 with a finding that the transfer in favour of Raghunath Gouda was void and since the period of limitation necessary to acquire valid title is 30 years as per S. 7-D of the Regulation, neither the transferee nor his legal heirs could acquire title by adverse possession in respect of the properties covered by the sale deed. He, therefore, directed restoration of possession in respect of Ac.3.750 decimals of land and also imposed a penalty of Rs. 75/- which, if not paid within thirty days from the date of the order, would be realisable as arrears of land revenue, vide Annexure-4. Raghunath Gouda preferred an appeal before the Additional District Magistrate which was registered as Regulation Appeal No. 2/84 challenging the aforesaid order of the Officer on Special Duty. The appellate authority confirmed the same by his order dated 17-8-1988. Vide Annex.-7. The present petitioners being
the legal hairs of late Raghunath Gouda have filed this writ application challenging the legality of the orders of the Officer on Special Duty and that of the appellate authority (Annexures 4 and 7 respectively) mainly on the following grounds:
(i) That the present proceeding under Regulation 2 of 1956 initiated in the year 1979 was barred by res judicata inasmuch as restoration of possession of the self same properties was refused in an earlier proceeding reference of which has been given earlier.
(ii) That Regulation 2 of 1956 was amended by Regulation 1 of 1975 introducing Section 7-D thereby amending Article 65 of the Limitation Act in its application to the scheduled areas and substituting the period of 12 years occurring in that Article by 30 years in relation to immovable properties belonging to Scheduled Tribes. The aforesaid amendment was given retrospective effect from 2nd October, 1973 by Regulation 1 of 1976. It has, therefore, been contended that Section 7-D of the Regulation shall have no application in the present case inasmuch as Raghunath Gouda, the predecessor in interest of the present petitioners had already prescribed title in respect of the disputed land before initiation of the proceeding.
(iii) That the application by opp. party No. 1, copy of which has been annexed to the writ application as Annexure-3 prayed for recovery of possession in respect of Ac.2.50 decimals of land and, therefore, the orders of the Officer on Special Duty as well as that of then appellate authority directing restoration of possession of Ac.3.750 decimals of land are in excess of the prayer made.
We would proceed to examine each of the points in seriatim.
3. So far as the first point relating to the question of res judicata is concerned, the materials on record are not sufficient to reach at a conclusion either way. The principle of res judicata which is based on the need of coming to a finality to judicial decisions is embodied, in relation to suits, in Section 11 of the Civil Procedure Code; but even where Section 11 does not in terms apply, the principle of
res judicata has been applied by courts for the purpose of achieving finality in the litigation (vide AIR 1960 SC 941). But in order that the said principle is to be made applicable, it must be shown that the former litigation was between the same parties or between parties under whom they or any of them claim litigating under the same title and the issues arising for decision in the subsequent litigation were directly or substantially in issue in the former one. The necessary documents such as the application of the earlier litigation and objection, if any, filed thereto, the order of the Officer on Special Duty indicating its decision on the question which arose for consideration, are necessary for determining as to whether the principle of res judicata would apply in the present proceeding. Except quoting the order passed by the Officer on Special Duty in the earlier proceeding (R.M.C. No. 84/72) in the writ application, nothing further has been filed by the petitioners. In the subsequent proceeding initiated in the year 1979 the plea of res judicata was taken up at the first instance and in order to substantiate the same, the decision of a previous case (R.M.C. No. 133/72) was produced and relied upon and not the decision in R.M.C. No. 84/72 reference of which has been made in the present writ application. In view of the aforesaid discrepancy and in the absence of materials, we do not find any force to sustain the plea of res judicata. It is well settled in law that the onus of proof lies on the party relying on the theory of res judicata, and since the same had not been discharged, the appellate authority rightly remanded the matter for fresh enquiry and to decide the case on merits. The first point is, therefore, answered against the petitioners.
4. The next contention of the learned counsel for the petitioners is that they having been in possession of the disputed property for more than the statutory period, they have acquired valid title by adverse possession for which reason they cannot be evicted in a proceeding under Section 3 or 3-A of the Regulation. Admittedly Raghunath Gouda, the predecessor in interest of the petitioners had purchased the disputed properties some in the year 1959 and the rest in the year 1961 without
previous consent in writing of the competent authority. It is not in dispute that the purchaser Raghunath Gouda was not a member of Scheduled Tribe whereas the opp. party No. 1 the vendor, belongs to that Tribe. According to the provisions contained in S. 3 of the Regulation which came into force with effect from 21-9-1956, permission was necessary for transfer of a land by a member of the Scheduled Tribe situated within the scheduled area in favour of a person not belonging to the same Tribe. The properties in question situated within the scheduled area and, therefore, the transfers by opp. party No. 1 in favour of Raghunath Gouda in the year 1959 and in 1961 were invalid. Section 3 of the Regulation specifically provides that such transfer shall be absolutely null and void and of no force or effect whatsoever. Raghunath Gouda after having purchased the disputed property remained in possession thereof by virtue of the void transactions which also stands admitted in the very application of opp. party No. 1 before the Officer on Special Duty for which reason he prayed for recovery of possession under the provisions of the Regulation. The question for consideration is what would be the nature of such possession.
The expression ‘adverse possession’ means hostile possession i.e. possession which is expressly or impliedly in denial of title of the true owner. This principle has been recognised in numerous decisions though expressed in different ways. Where the acts of the person in possession of a property are irreconcilable with the rights of the true owner, it has been often held that such acts of the person in possession would constitute ‘adverse possession’ as against the true owner. The alienee under a void transaction acquires no title to the property conveyed in his favour and his possession is, therefore, wrongful from the very inception. In a decision reported in AIR 1951 SC 469 (Collector of Bombay v. Municipal Corporation of the City of Bombay) their Lordships held that a person having no legal title but nevertheless holding possession of the land under the colour of an invalid grant being not referable to any legal title, it was prima facie adverse to the owner of the land. The same view was approved and
followed in the decision reported in AIR 1970 SC 1778 (State of West Bengal v. The Delhousie Institute Society). This Court while considering the nature of possession under a deed of mortgage which was invalid, held that such possession is prima facie adverse to the lawful owners of the land, from the very moment such person took possession of the land.
The sale deeds by virtue of which Raghunath Gouda came into possession of the disputed property were void from the very inception and thus his possession was not referable to any lawful right or title. From the very nature of the land and its possession, it must be held to be open and in denial of the legal title of the owner of the land. The possession of such an alienee must therefore be deemed to be adverse from the very inception and it continues to be so until the same was challenged in the proceeding under the Regulation for the first time in 1972.
5. The possession of the alienee Raghunath Gouda under the invalid deeds of transfer being adverse to the alienor opp. party No. 1, it has to be seen as to whether opp. party No. 1 had lost the right to recover possession thereof by virtue of lapse of time and conversely if the alienee and his successors have acquired title by adverse possession. In this connection a further dispute has been raised as to whether the period of limitation for acquisition of title by adverse possession would be 12 years according to the law of limitation or 30 years as has been amended by Regulation 1 of 1975 read with Regulation 1 of 1976. We have already noticed that Regulation 2 of 1975 was amended by Regulation 1 of 1975 introducing a new Section as Section 7-D by which Article 65 of the Limitation Act in its application to scheduled areas would require a period of 30 years in relation to immovable property belonging to the Scheduled Tribes. Section 7-D was given retrospective effect from 2nd October, 1973. It, therefore, follows that if the period required for acquisition of title by adverse possession under the law as it existed before Section 7-D became operative was not complete by such date, the period of 30 years would be required for the purpose of adverse
possession. Where, however, the right to property has been lost by virtue of the provisions contained in the general Limitation Act, by the time Section 7-B of the Regulation came into operation, such rights cannot be revived. In the present case the purchaser having been in possession of the properties purchased under the sale deed of the year 1959, the period of 12 years was complete by the date when Section 7-D was to operate, ft is, however, in doubt as to whether such period was complete in respect of the latter sale. Though the sale deed was of the year 1961, it cannot be ascertained as to whether the period of 12 years was complete by 2-10-1973 from which day Section 7-D was given retrospective effect. This is because the date of the sale deed had not been disclosed by the petitioners. The burden of proving that the petitioners have acquired title by adverse possession being squarely on them, it is bound to be held that they have not been able to prove that they have completed their possession for the requisite period by the aforesaid date. That apart, the opp. party No. 1 prayed for recovery of possession under the Regulation for the 1st time in the year 1972. Assuming that the period of limitation applicable to such a case was 12 years, the purchaser did not complete the said period in respect of the properties purchased in the year 1961 by the time when opp. party No. 1 filed the earlier proceeding under the Regulation in the year 1972. Thus our conclusion is that the petitioners had acquired valid title by adverse possession with respect to the properties covered by the sale deed before 1959 whereas they have not acquired title with respect to the properties covered by the latter sale deed.
In the aforesaid context, reference to Section 27 of the Limitation Act may further clarify the position. It provides that at the determination of the period prescribed under the Act for institution of a suit for possession of any property, the right of the person entitled to the property shall be extinguished. Applying the principle underlying the above mentioned section, the right of opp. party No. 1 to the property in respect of which the period of limitation for institution of a suit for recovery of possession had expired, stood extinguished and, therefore, he cannot maintain the proceeding under the Regulation.
6. It is true that opp. party No. 1 in his application filed before the Officer on Special Duty had prayed for recovery of possession of Ac.2.50 decimals of land without specifying the property by survey numbers. The Officer on Special Duty as well as the appellate court directed delivery of possession of Ac.3.750 decimals. The petitioners have urged that the aforesaid orders are liable to be quashed on that ground alone. Admittedly opp. party No. 1 was a member of the Scheduled Tribe who in his application has not given the survey numbers for identification of the property. The Regulation in Section 3(2) empowers the competent authority to initiate a proceeding under that Section either by application by any one interested thereunder or on his own motion. Therefore, even though the present opp. party No. 1 had not mentioned the correct area in respect of which he prayed for restoration of possession, it was within the powers of the competent authority to grant relief in respect of the real property in question, of course after giving opportunity to the other party of being heard. In the present case, the properties in respect of which we confirm the order of the competent authority for restoration of possession being less than the area mentioned in the application, the aforesaid objection is irrelevant.
7. In the result, the writ application is partly allowed to the extent that the orders in Annexures-4 and 7 directing restoration of possession in respect of the properties covered by the sale deed of the year 1959 are hereby quashed. But the opp. party No. 1 is entitled to be restored to possession in respect of the properties covered by the sale deed of 1961.
There shall be no order as to costs.
Hansaria, C.J.
8. I agree.
