Hitnarayan Das vs Sagra Khedia and Others

R.N. Misra, J.—Petitioner challenges the order of evection passed against him by the competent authority under Orissa Regulation 2 of 1956 (hereinafter referred to as the ''Regulation'') as upheld in appeal by opposite party No. 4.

Opposite parties 1 and 2 made an application before the competent authority u/s 3 of the Regulation alleging:

That, in the year 1961, there was a talk of sale of the land by the Petitioner No. 1 and his mother with the members of the opposite party for which they applied for identification of the land vide Misc. Case No. 629/60-61 and accordingly an amin identified the land measuring an area of Ac. 4 03 decimals of land out of khata No. 64 in their possession, but as permission for sale of the land could not be obtained, as the Petitioners have less land and there was objection, the permission petition was disallowed and they used to cultivate the same till the attachment of the A schedule and mentioned below under Misc. Crl. Case No. 225/75 of 1969 initiated in this Court, but subsequently disposed of on 21-5-1971 by Sri R.K. Misra, M.F.C., Sundergarh, declaring possession of the 1st party members in that case and opposite party member in this case.

From the narration of events in the application forming the foundation of the proceeding, it is clear that though there was an agreement for sale, possession had not been made over to the Petitioner pursuant thereto and when the permission petition was disallowed, opposite parties 1 and 2 remained in possession as before and continued to be in such possession until the lands came to be attached io a proceeding u/s 145 of the Code of Criminal Procedure, which eventually terminated against opposite parties 1 and 2 leading to their dispossession and delivery of possession to the Petitioner. On the pleading of opposite parties 1 and 2, there is no scope to hold that there was a transfer of the property as defined in Section 2(f) of the Regulation. There is no dispute before us that unless there be transfer of possession pursuant to a transfer of the property as envisaged in the aforesaid clause, there could be no proceeding under the Regulation. The statutory authorities, both original and appellate, have overlooked the pleading and have without justification come to hold that the Petitioner had been given possession pursuant to a contract. The finding runs counter to the pleading by the opposite parties as indicated above and must be taken to be a third case made out by the forums below without justification.

On our finding that there was no transfer of possession pursuant to a transfer of the property and the Petitioner had been put into possession in a proceeding u/s 145, Code of Criminal Procedure, by the same competent authority in exercise of another jurisdiction, as pleaded in the petition of the opposite patties, the proceeding under the Regulation was not maintainable and no jurisdiction vested in the competent authority to direct dispossession in exercise of powers vested under the Regulation. The order as made by the competent authority and upheld in appeal by the opposite party No. 4 must accordingly be quashed. The writ application is allowed and the impugned orders are vacated.

As there is no appearance by opposite parties 1 and 2 who contested the proceeding in the forums below, there will be no order for costs.

N.K. Das, J.

I agree.

Petition allowed.