LINCAI GAMANGO AND ORS. versus DAYANIDHI JENA AND ORS.

Citation: [2004] SUPP. 2 S.C.R. 825 · Decided: 31-05-2004 · Supreme Court of India · Bench: BRIJESH KUMAR · Disposal: Dismissed

Judgment (excerpt)

LINCAI GAMANGO AND ORS. 
V. 
DAY ANIDHI JENA AND ORS. 
MAY 31, 2004 
[BRIJESH KUMAR AND ARUN KUMAR, JJ.] 
Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled 
Tribes) Regulations, 1956; Sections 2(/), 3(1) & 5(2) : 
A 
B 
Immovable property/land-Allegedly forcibly occupied by respordents, C 
non-tribals-Owners, belonging to tribal community, filed petition claiming 
possession-Allowed by Competent Authority-Appellate authority 
remanded the cases to trial Court for further enquiry-Trial Court 
dismissed the petition holding that since the suit land was in possession 
of the respondents for more than the prescribed period of limitation, D 
provisions of the Regulation not attracted-Reversed by Appellate Court 
restoring back possession of the land to owners-Challenge to-Allowed 
by High Court-On appeal, Held : Disputed land falls within scheduled 
area in possession of respondents, non-tribals-A non-tribal would not 
acquire right and title on the basis of adverse possession-High Court E 
ought to have dealt with the issues regarding possession and ownership 
of the land with reference to burden of proof before arriving at its finding-
Hence finding of the High Court not sustainable-Matter remanded to 
High Court for fi'esh hearing and decision. 
Appellants-owners of the suit land, belonging to a scheduled tribe F 
community, filed petitions before the Competent Authority"claiming 
possession over the suit land on the ground that the respondents had 
taken over possession of the disputed land forcibly. The Authority 
decided in favour of the petitioners-owners and directed respondents 
to hand over possession to them. Appellate authority remanded the G 
matter to trial Court for further enquiry. In the meantime, the State 
Government promulgated Orissa Scheduled Area Transfer of 
Immovable Property (By Scheduled Tribes) Regulations, 1956 in terms 
thereof the disputed land falls in scheduled area. Trial Court dismissed 
the petition holding that since the suit land was in possession of the H 
825 
826 
SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R. 
A respondents for more than 30 years, it would not attract the provisions 
of the Regulations. Appellate Court found that since the appellants 
were deprived of possession over the disputed land forcibly by the 
respondent, they were entitled to get back possession in terms of the 
Regulations. Aggrieved, respondents filed a writ petition which was 
B allowed by the High Court. Hence the present appeals. 
Allowing the appeals, the Court 
HELD : 1.1. Generally subject to certain exceptions, alienation of 
C immovable property by a tribal to a non-tribal is impermissible and 
it is invalid, null and void. [828-GJ 
1.2. It is clear that a non-tribal would not acquire right and title 
on the basis of adverse possession. Hence, the ground for setting aside 
the order passed by the Appellate Court falls through, other factual 
D aspect about the possession of the respondents over the disputed land 
and entries in their favour may also not be of much consequence. In 
any case, this aspect of the matter has to be sel!n and considered afresh 
in the light of other facts and circumstances of the case. [832-8-C-D) 
E 
Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors., JT (2003) 
F 
9 SC 201; Madhavrao Waman Saundalgekar & Ors. v. Raghunath 
Venkatesh Deshpande & Ors., AIR (1923) P.C. 205 and Karimullakhan 
s/o. Mohd. Jshaqkhan & Anr. v. Bhanupratapsingh, AIR 36 (1949) 
Nagpur 265, relied on. 
Madhiya Nayak v. Arjuna Pradhan & Ors., 65 (1988) C.L.T. 36, 
distinguished. 
1.3. The question of acquisition of right and title by adverse 
possession by non-tribal over the land in the scheduled area belonging 
G to a member of the Scheduled Tribe does not arise. The finding of the 
High Court on this point is not sustainable; the whole matter needs a 
fresh look by the appellate authority. If necessary, other relevant 
evidence on the record as sought to be pointed out by the appellants 
may also have to be seen in the light of the provisions of Regulation 
H No. 2 of 1956. The implications of the claim of the respondents for 
LINCAI GAMANGO v. DA YANIDHI JENA [BRIJESH KUMAR, J.] 827 
allegedly having perfected their rights by adverse possession may also A 
have to be examined. Hence, the matter is remanded to the High Court 
for fresh hearing and decision. (832-H; 833-A-B-C-D) 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 868-74 of 
1998. 
From the Judgment and Order dat

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