S.K.MISHRA, J. W.P.(C) NO.11415 OF 2010 (Dt.15.11.2011) JOGENDRA JENA & ANR. … …..Petitioners. .Vrs. KRUSHNA JENA & ANR. ………Opp.Parties. ORISSA CONSOLIDATION OF HOLDINGS AND PREVENTION OF FRAGMENTAION OF LAND ACT,1972 (ACT NO.21 OF 1972) – S.35 (2). For Petitioners - M/s. Prahallad Kar, G.D.Kar, A.K.Mohanty, J.Behera. For Opp.Parties - M/s. P.K.Rath & his associates. S.K. MISHRA,J. In this writ petition the petitioners assail the correctness of the order passed by learned Collector, Bhadrak on 28.05.2010 in OCH & PFL Misc. Case No.4 of 2009, wherein it was ordered that the petitioners be evicted from the land in question and the same be restored to the opposite party no.1 under Section 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, herein after referred to as ‘the OCH and PFL Act’ for brevity. 2. The facts of the case are not disputed though the opposite party no.1 claims that he has mortgaged a piece of land measuring Ac. 0.20 decimals of land out of Ac 0.58 pertaining to plot no.261, holding no.70 to the petitioners, it has been established before the court below that the opposite parties have, in fact, executed a registered sale deed bearing no.2815 dated 06.09.1985 in favour of the petitioners. It is not disputed at the same time that the area, i.e. Basudevepur Mouza, was under consolidation operation. It is also not disputed the fact that the opposite party no.1 did not seek permission from the consolidation authorities for transferring the fragment of land in favour of the petitioners. Thus, the opposite parties initiated a proceeding under Section 35(2) of OCH and PFL Act and prayed to declare the mutation order in favour of the petitioners to be illegal and to evict the petitioners from the disputed land. It is also not disputed that the petition under Section 35 of the OCH and PFL Act was filed about 25 years after execution of the registered sale deed. Thus, the only question that arises in this writ petition is whether the application filed by opposite party no.1 against the petitioners is barred by limitation and if the petitioners have perfected title by way of adverse possession. 3. The learned Collector came to the conclusion that the limitation will not run against the opposite party no.1 as the document is a void document. On the basis of the same the petitioners cannot claim any right to have accrued in their favour due to limitation. Therefore, the learned Collector declared the sale deed executed in favour of the petitioners to be void and ordered that the petitioners be evicted from the land in question and the possession thereof be restored to the opposite party no.1. Such order is assailed in this writ petition. 4. In course of hearing the learned counsel for the petitioners submits that since Section 57 of the OCH and PFL Act provides that the provisions of Limitation Act except Sections 6, 7, 8, 9, 18 and 19 shall apply to all applications, appeals, revisions and other proceedings under the Act, the case should be covered under Article 137 of the Limitation Act, 1963. In other words, the learned counsel for the petitioners submits that as there is no specific provision guiding the limitation for such applications, Article 137 of the Limitation Act shall be applicable to the case, which provides that the limitation for any application for any relief, for which no period of limitation has been made in the Limitation Act, shall be three years. Alternatively, he submits that even if the petition is held to be for possession of land in question, then the petition is barred by limitation as it has filed much after expiry of 12 years from the date of execution of the deed and, hence, the petitioners have perfected their title by way of adverse possession. 5. Mr. Rath, learned counsel for opposite party no1, on the other hand, submits that since the document is void abinitio, it is not required to be set aside or cancelled the same and, therefore, the provisions like Articles 65 or 137 of the limitation Act will not be applicable to the case. He relies on the reported case of Rankanidhi Sahu vs. Nandakishore Sahu, AIR 1990 Orissa 64. The learned counsel for the opposite party no.1 further submitted, relying upon the reported case of Abdul Gani Ansari and another Vs. Addl. District Magistrate and others, 2005 (II) OLR-633, that in case of a void document, which contravenes the provisions like Section 3 of Regulation II of 1956, the plea of adverse possession is not available to be taken against the execution of the sale deed. On such submissions, the learned counsel for the opposite party no.1 prayed that the writ petition is without merit and the same be dismissed. 6. No doubt, the provisions as contained in Regulation II of 1956 provide that any transfer made by a scheduled tribe without seeking permission of the competent authorities is void. Therefore, taking into consideration the special status of the scheduled tribes, the Supreme Court in Amrendra Pratap Singh vs. Bahadur Prajapati and others reported in AIR 2004 SC 3782, has held as follows: “ Acquisition of title in favour of a non-tribal by invoking the doctrine of Adverse Possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the Court. In other words a default or in action on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to ‘dealing’ by him with such property and hence, a transfer of immovable property. It is so because a tribal is considered by the legislature not to be capable of protecting his own immovable property. A provision has been made by para 3A of the 1956 Regulations for evicting any unauthorized occupant, by way of trespass or otherwise, of any immovable property of the member of the scheduled tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. The State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3A. The prescription of the period of 12 years in Art. 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. The tribal need not file a civil suit 2 which will be governed by law of limitation, it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such an action neither Art.65 of Limitation Act nor Section 27 thereof would be attracted.” (emphasis supplied) From a plain reading of the reasonings resorted to by the Hon’ble Supreme Court in the aforesaid case leaves no doubt in the mind of the Court that such a special treatment is meted out to the tribals because of the fact that the tribals are considered by the legislature not to be capable of protecting their immovable property. Such a reasoning is not applicable to this case. It is not the case of the opposite party no.1 that he is incapable of protecting his own property neither he pleads that he is illiterate and do not understand the process of registration etc. The basic object of prohibition of transfer of a fragment of land in the Act is to prevent fragmentation of consolidable lands, which is the main object of the Act. Such a prohibition of transfer is not intended to protect any class of persons, which is considered to be incapable of taking care of their own property. On the contrary, law of limitation requires that the parties should be vigilant to protect their right and that they should not sleep over the matter indefinitely. Such inaction and afflux of time in fact creates a right in favour of the purchaser or the party against whom a legal action is brought out. 7. In this case, it is admitted that 25 years has elapsed before the opposite party no.1 filed application to the Collector for restoration of the land in question. Thus, the initial starting point of limitation shall be date of execution sale deed and the court of law cannot but give a finding that the petitioners have perfected their title by way of adverse possession and, therefore, this Court comes to the conclusion that the petition filed by opposite party no.1 before the Collector is hopelessly barred by limitation as it has not been filed within 12 years as required under Article 65 of the Limitation Act. Accordingly the writ petition is allowed. The order impugned dated 28.05.2010 in OCH and PFL Misc. Case No.4 of 2009 passed by the learned Collector, Bhadrak is hereby quashed. No costs. Writ petition allowed. 3