http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13

CASE NO.:

Appeal (civil) 11483 of 1996

PETITIONER:

Amrendra Pratap Singh

RESPONDENT:

Tej Bahadur Prajapati & Ors.

DATE OF JUDGMENT: 21/11/2003

BENCH:

R.C. LAHOTI & ASHOK BHAN.

JUDGMENT:

J U D G M E N T

R.C. Lahoti, J.

The suit property consists of a piece of agricultural land

situated in Sundergarh area of Mouza Durgapur, Rourkela. Prior to

the year 1962, the property belonged to Chand Oram and Pera Oram.

Both of them belong to oraon tribe, which is a scheduled tribe in the

State of Orissa as notified vide the Constitution Schedule Tribe Order,

1950 issued in exercise of the power conferred by clause (1) of Article

342 of the Constitution of India. On 21.12.1962 Chand and Pera

transferred their right and interest in 0.75 decimals of land in favour

of one Mangal Singh Manki. The said Mangal Singh Manki was also

a person belonging to a scheduled tribe. Mangal Singh Manki, after

obtaining the permission of the Sub-Divisional Officer, Pamposh, sold

0.40 decimals of land by a registered deed of sale dated 7.4.1964

executed in favour of one Ratnamani Mohapatra, and on the same day

by another registered deed of sale transferred the remaining 0.35

decimals of land to one Harihar Pradhan. On 6.9.1975 Dr.

Amarendra Pratap Singh, the plaintiff-appellant purchased 0.195

decimals of land out of 0.40 decimals from Ratnamani Mohapatra. It

is this land purchased by the plaintiff-respondent which forms the

subject-matter of dispute. This land belonging to the plaintiff has

come to be numbered as plot no. 1147/1.

According to the plaintiff he raised construction in the year

1965 over 0.05 decimal area out of the land purchased by him. When

he proposed to raise construction over the remaining area, he was

obstructed in doing so by Harihar Pradhan, the owner of the adjoining

land, whereupon the plaintiff got in touch with his predecessor in-title

Smt. Ratnamani Mohapatra. It was detected that in the map attached

with the Sale Deed dated 6.9.1965 there was some error in description

of the land forming the subject-matter of sale. Smt. Ratnamani

Mohapatra executed a deed of rectification dated 31.8.1968 in favour

of the plaintiff-appellant, after having the land demarcated by Amin.

During the course of demarcation proceedings it was found

that the defendant-respondent no.1 had also purchased some land

under a registered deed of sale dated 25.4.1967 from Chand and Pera

and constructed two buildings thereon. However, the defendant-

respondent no.1 who had purchased land plot no.1119 (new plot no.

957), had also encroached upon some portion of land of plot no.1147

(new plot no.956) belonging to the plaintiff-appellant.

The dispute between the parties led to the initiation of

proceedings under Section 145 of the Code of Criminal Procedure. In

the year 1970 the plaintiff-appellant filed a suit for declaration of title,

recovery of possession and issuance of permanent preventive

injunction against the defendants. The defendant nos. 1 to 3, who are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13

the principal contesting defendants, denied the title of the plaintiff

and pleaded their title by way of adverse possession over the suit land.

The Trial Court decreed the suit and directed possession over the suit

property to be restored to the plaintiff after demolition of the

construction of the defendant no.1 standing on the suit land. The

defendant no.1 preferred an appeal to the High Court. The High Court

found the title of the plaintiff-respondent no.1 to be proved but at the

same time held the defendant no.1 to have been in adverse possession

over the property for the prescribed statutory period of 12 years, and

therefore held the plaintiff-respondent no.1 not entitled to a decree in

the suit. The High Court reversed the judgment and decree of the

Trial Court and directed the suit to be dismissed. Feeling aggrieved,

the plaintiff has filed this appeal by special leave.

On behalf of the plaintiff-appellant the correctness of the

finding as to defendant no.1-respondent being in adverse possession

of the property and having perfected his title by being in continuous

and uninterrupted possession of the property for a period exceeding 12

years' time was seriously disputed, however, we are not inclined to

enter into any revaluation of evidence and dislodge the finding of fact

arrived at by the High Court. We would therefore proceed on an

assumption that the defendant-respondent no.1 has remained in

possession of the property for a period of more than 12 years before

the date of the institution of the suit. The real question is _ whether he

can be said to have perfected his title by way of adverse possession?

This question assumes significance because of the fact that the

original owners of the land, namely, Chand and Pera, were persons

belonging to a scheduled tribe and their successor-in-title Mangal

Singh Manki was also a person belonging to the scheduled tribe.

The Orissa Merged States' Laws Act, 1950 was enacted by the

Legislative Assembly of Orissa for the purpose of extending certain

Acts and Regulations to certain areas administered as part of the State

of Orissa. It received the assent of the Governor on 26.2.1950, which

was published in the Orissa Gazette on 3.3.1950 and on that date the

Act came into force. Section 7 of the Act, in so far as is relevant for

our purpose, provided as under :

"7. Modification of Tenancy Laws in force in

the merged States \026 Notwithstanding

anything contained in the tenancy laws of

the merged States as continued in force by

virtue of Article 4 of the States Merger

(Governor's Provinces) Order, 1949 \026

xxx xxx xxx xxx

(b) an occupancy tenant shall be entitled-

(i) to freely transfer his holding subject to

the restriction that no transfer of a holding

from a member of an aboriginal tribe to a

member of a non-aboriginal tribe shall be

valid unless such transfer is made with the

previous permission of the Sub-divisional

Officer concerned;

(ii) to have full right over all kinds of trees

standing on his holding;

(iii) to use the land comprised in the holding

in any manner which does not materially

impair the value of the land or render it unfit

for the purposes of the tenancy;

(iv) to the benefit of the presumption by any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13

Court that the rent for the time being

payable by him is fair and equitable until the

contrary is proved;

Explanation-(i) An 'occupancy tenant' means

tenant or a raiyat having occupancy right in

his holding under the tenancy laws

continued in force in the merged States;

(ii) an 'aboriginal tribe' means any tribe

that may from time to time be notified as

such by the State Government;

xxx xxx xxx xxx"

Article 244 of the Constitution provides for the provisions of

the Fifth Schedule being applicable to the administration and control

of the scheduled areas and scheduled tribes in any State other than the

State of Assam, Meghalya, Tripura and Mizoram. Para 5 of the Fifth

Schedule provides inter alia for the Governor to make regulations

which may prohibit or restrict the transfer of land by or among the

members of the Scheduled Tribes in such area and/or to regulate the

allotment of land to members of the Scheduled Tribes in such area.

In exercise of the powers conferred by sub-para 2 of paragraph

5 of the Fifth Schedule to the Constitution, the Governor of Orissa

promulgated regulations known as The Orissa Scheduled Areas

Transfer of Immovable Property (By Scheduled Tribes) Regulations,

1956 (hereinafter referred to as the 'Regulations', for short). The

assent of the President was received on 21.09.1956 and published in

the Orissa Gazette Extraordinary on 4.10.1956, on which date the

Regulations came into force. The Preamble to the Regulations speaks

that the same were promulgated as it was considered expedient to

control and check transfer of immovable property by the scheduled

tribes in the scheduled areas of the State of Orissa. Clause (f) of para

2 of the Regulations defines 'transfer of immovable property' to mean

'mortgage with or without possession, lease, sale, gift, exchange or

any other dealing with such property not being a testamentary

disposition and includes a charge or contract relating to such property'

(emphasis supplied). Regulation 3 provides as under :

3. Transfer of Immovable property by

a member of the Scheduled Tribe \026 (1)

Notwithstanding anything contained in any

law for the time being in force any transfer

of immovable property situated within a

Scheduled Area by a member of a

Scheduled Tribe shall be absolutely null and

void and of no force or effect whatsoever

unless made in favour of another member of

a Scheduled Tribe or with the previous

consent in writing of the competent

authority :

Provided that nothing in this sub-

section shall apply to any transfer by way of

mortgage executed in favour of any public

financial institution for securing a loan

granted by such institution for any

agricultural purpose :

Provided further that in execution of

any decree for realization of the mortgage

money no property mortgaged as aforesaid

shall be sold in favour of any person not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13

being a member of the Scheduled Tribes

without the previous consent in writing of

the competent authority.

Explanation \026 For the purposes of this

sub-section, a transfer of immovable

property in favour of a female member of a

Scheduled Tribe, who is married to a person

who does not belong to any Scheduled

Tribe, shall be deemed to be a transfer made

in favour of a person not belonging to a

Scheduled Tribe.

(2) Where a transfer of immovable

property is made in contravention of Sub-

section (1) the competent authority may,

either on application by any one interested

therein or on his own motion and after

giving the parties an opportunity of being

heard order ejectment against any person in

possession of the property claiming under

the transfer and shall cause restoration of

possession of such property to the transferor

or his heirs. In causing such restoration of

possession the competent authority may take

such steps as may be necessary for securing

compliance with the said order or preventing

any breach of peace :

Provided that if the competent

authority is of the opinion that the

restoration of possession of immovable

property to the transferor, or his heirs is not

reasonably practicable, he shall record his

reasons thereof and shall subject to the

control of the State Government settle the

said property with another member of

Scheduled Tribe or in the absence of any

such member, with any other person in

accordance with the provisions contained in

the Orissa Government Land Settlement

Act, 33 of 1962.

Explanation \026 Restoration of

possession means actual delivery of

possession by the competent authority to the

transferor or his heirs.

(3) Subject to such conditions as

may be prescribed an appeal if preferred

within thirty days of the order under Sub-

section (2) shall, if made by the Collector lie

to the Board of Revenue and if made by any

other competent authority to the Collector or

any other officer specially empowered by

the State Government in this behalf.

(4) Subject to the provisions of

Sub-section (3) the decision of the

competent authority under Sub-section (2)

shall be final and shall not be challenged in

Court of law.

(underlining by us)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13

Under Regulation 3A where a person is found to be in

unauthorized occupation of any immovable property of a member of

the scheduled tribes by way of a trespass or otherwise, the competent

authority may either on application by the owner or any person

interested therein, or on his own motion, and after giving the parties

concerned an opportunity of being heard, order ejectment of the

person so found to be in unauthorised occupation and shall cause

restoration of possession of such property to the said member of the

scheduled tribe or to his heirs.

In the year 1975 by Orissa Regulation No.1/1975 para 7-D was

inserted by way of amendment along with a few other amendments.

Para 7-D reads as under :

"7-D Amendment of the Limitation Act,

1963 in its application to the Scheduled

Areas \026 In the Limitation Act, 1963 in its

application to the Scheduled Areas in the

Schedule, after the words "twelve years"

occurring in the second column against Art.

65, the words "twelve years" and figure "but

30" years in relation to immovable property

belonging to a member of a Scheduled Tribe

specified in respect of the State of Orissa in

[the Constitution (Scheduled Tribes) Order,

1950 as modified from time to time, shall be

added)."

This amendment was given retrospective operation with effect

from 02.10.1973.

Para 9 of the Regulations partially repealed the Orissa Merged

States (Laws) Act, 1950. The relevant extracts is as under:

"9. Repeal \026

(1) on and from the date of commencement of this

regulation shall stand repealed, namely;

(a) xxx xxx xxx

(b) The enactments mentioned in column 2 of the

Schedule to the extent specified in column 3

thereof in so far as they are in force in the

Scheduled Areas.

(2) (a) to (d) xxx xxx

SCHEDULE

LIST OF ENACTMENTS REPEALED

(See Section \026 9)

Number and year

(1)

Short title

(2)

Extent of Repeal

(3)

1. xxx

xxx

xxx

2.Orissa Act IV of

1950

Orissa Merged

States' Laws Act,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13

1950

The words

"subject to the

restrictions that no

transfer of a

holding from a

member of an

aboriginal tribe to

a member of a

non-aboriginal

tribe shall be valid

unless such

transfer is made

with the previous

permission of the

Sub-divisional

Magistrate

concerned" in

item 1 of Clause

(d) of the section

shall be omitted.

3. xxx

xxx

Xxx

The position emerging from the facts of the case, found proved

or undisputed and the relevant position of law, as emerging from the

Act and the Regulations referred to hereinabove, may be summed up.

The original holders of the land, namely, Chand and Pera, were

persons belonging to an aboriginal tribe, i.e. Oraon. Sundergarh, the

area where the land is situated, is a tribal area. Chand and Pera Oram

held the land as occupancy tenants. They could not have transferred

their holding to a member of a non-aboriginal tribe though the transfer

of holding by a member of one aboriginal tribe to a member of the

same or another aboriginal tribe, was permitted. This restriction

continued to remain in force by virtue of Section 7-D of the Orissa

Merged States' Laws Act, 1950, from the year 1950 up to the year

1956. That restriction came to be deleted by Para 9 read with Entry 2

of the Schedule to the 1956 Regulations. But then the same restriction

came to be imposed independently by Para 3 of the Regulations.

While the 1950 Act imposed a restriction on the transfer of a holding

by a member of an aboriginal tribe to a non-member except with the

previous permission of the sub-divisional officer concerned, the 1956

Regulations enlarged the scope of the restriction by including, within

the purview of prohibition, any transfer of any immovable property

except with the previous consent in writing of the competent

authority. The immovable property, referred to in para 3 of the

Regulations, would obviously include a holding as well. The

Regulations define 'transfer of immovable property'. The definition

is very wide. Apart from the well-known modes of transfer such as

mortgage, lease, sale, gift and exchange, what has been included

therein is "any dealing with such property" which is non-testamentary.

Regulation 7-D has amended the provisions of the third column of the

Schedule to the Limitation Act, 1963. The effect of this amendment is

that the period of limitation prescribed for suit for possession of

immovable property or any interest therein in a suit based on title,

instead of being 12 years stands substituted by a period of 30 years, in

the Limitation Act, which period would begin to run from a point of

time when the possession of the defendant becomes adverse to the

plaintiff in its applicability to immovable property belonging to a

member of a Scheduled Tribe such as 'Oraon'. What is the scope of

Regulation 7-D and to what immovable properties it would apply,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13

shall be examined a little later.

It cannot be disputed that until 07.04.1964 the land was owned

by Chand and Pera and then by Mangal Singh, all the three being

members of an aboriginal tribe and a scheduled tribe. On 07.04. 1964

the land came to be transferred to a person not belonging to any

aboriginal tribe. Proceeding on the premise that in the year 1970, on

the date of the filing of the suit (the exact date not being ascertainable)

the defendant No.1 had been in possession of the property for a period

of more than 12 years. Can it be said that he had perfected his title by

adverse possession or that the suit filed by the plaintiff had become

barred by time on account of having been filed 12 years after the date

when the possession of the defendant became adverse to the plaintiff

or his predecessors-in-title? The period for which the defendant

claims to be in possession has to be divided into two parts: (i) the pre-

7.4.1964 period when the ownership of the land vested in the person

or persons who belonged to an aboriginal tribe; and (ii) post-7.4.1964,

when the ownership had come to vest in a person belonging to a non-

aboriginal tribe consequent upon a transfer made by the previous

permission of competent Authority. Two questions arise for

consideration: firstly, what is the meaning to be assigned to the

expression, 'transfer of immovable property' in relation to property

owned by a member of a scheduled tribe to whom the Regulations

apply; and secondly, whether right by adverse possession can be

acquired by a non-aboriginal on the property belonging to a member

of an aboriginal tribe. The 1956 Regulations have chosen to assign an

extended meaning to the expression 'transfer of immovable property'

so as to include within its meaning not only such methods of

testamentary disposition as are known to result in transferring an

interest in immovable property but also any 'dealing' with such

property as would have the effect of causing or resulting in the

transfer of interest in immovable property, is included therein.

According to the Chambers Twentieth Century Dictionary (New

Edition, 1983) 'deal' as a verb means to divide, to distribute; to throw

about; to deliver and 'deal with' means to have to do with, to treat of,

to take action in regard to. One of the meanings to the word 'deal'

assigned in Black's Law Dictionary (6th Edition) is 'to traffic'.

Dictionaries can be taken as safe guides for finding out meanings of

such words as are not defined in the statute. However, dictionaries are

not the final words on interpretation. The words take colour from the

context and the setting in which they have been used. It is permissible

to assign a meaning or a sense, restricted or wider than the one given

in dictionaries, depending on the scheme of the legislation wherein the

word has been used. The court would place such construction on the

meaning of the words as would enable the legislative intent being

effectuated. Where the object of the legislation is to prevent a

mischief and to confer protection on the weaker sections of the society

the court would not hesitate in placing an extended meaning, even a

stretched one, on the word, if in doing so the statute would succeed in

attaining the object sought to be achieved. We may refer to Principles

of Statutory Interpretation by Justice G.P. Singh (Eighth Edition,

2001) wherein at pp. 279-280 the learned author states\026 ". . . . .in

selecting one out of the various meaning of a word, regard must

always be had to the context as it is a fundamental rule that 'the

meanings of words and expressions used in an Act must take their

colour from the context in which they appear'. Therefore, 'when the

context makes the meaning of a word quite clear, it becomes

unnecessary to search for and select a particular meaning out of the

diverse meanings a word is capable of, according to lexicographers'. .

. . . . Judge Learned Hand cautioned 'not to make a fortress out of the

dictionary' but to pay more attention to 'the sympathetic and

imaginative discovery' of the purpose or object of the statute as a

guide to its meaning."

Tribal areas have their own problems. Tribals are historically

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13

weaker sections of the society. They need the protection of the laws

as they are gullible and fall pray to the tactics of unscrupulous people,

and are susceptible to exploitation on account of their innocence,

poverty and backwardness extending over centuries. The Constitution

of India and the laws made thereunder treat tribals and tribal areas

separately wherever needed. The tribals need to be settled, need to be

taken care of by the protective arm of the law, and be saved from

falling prey to unscrupulous device so that they may prosper and by

an evolutionary process join the mainstream of the society. The

process would be slow, yet it has to be initiated and kept moving. The

object sought to be achieved by the 1950 Act and the 1956

Regulations is to see that a member of an aboriginal tribe indefeatably

continues to own the property which he acquires and every process

known to law by which title in immovable property is extinguished in

one person to vest in another person, should remain so confined in its

operation in relation to tribals that the immovable property of one

tribal may come to vest in another tribal but the title in immovable

property vesting in any tribal must not come to vest in a non-tribal.

This is to see and ensure that non-tribals do not succeed in making in-

roads amongst the tribals by acquiring property and developing roots

in the habitat of tribals.

In support of the proposition that the expression 'transfer of

immovable property' is capable of being assigned an extended

meaning depending on the context and the setting in which it has been

used so as to include therein such transactions as would not otherwise

and ordinarily be included in its meaning, we may refer to a few

decided cases.

The Maharashtra Agricultural Lands (Ceiling on holdings) Act,

1961, imposed a ceiling on holding land and to effectuate the purpose

sought to be achieved by the legislation, imposed restrictions on the

transfer or partition of any land on or after the appointed date.

Transfer was defined to mean transfer by act of parties whether by

sale, gift, mortgage with possession, exchange, lease or any other

disposition (underlining by us) made inter vivos. This Court in

Sanjay Dinkar Asarkar Vs. State of Maharashtra & Anr., (1986) 1

SCC 83, placed an object-oriented interpretation on the term

'disposition' and held \026 "Though ordinarily the word 'disposition' in

relation to property would mean disposition made by a deed or will

but in the act it has to be given an extended meaning so as to include

therein any disposition made by or under a decree or order of the

Court."

In Pandey Orson Vs. Ram Chander Sahu & Ors., 1992

Supp.(2) SCC 77, the term 'transfer' as used in Section 71A of

Chhotanagpur Tenancy Act, 1908, came up for the consideration of

the Court. 'Transfer' was not defined in the Act. It was held that

considering the situation in which the exercise of jurisdiction is

contemplated, it would not be proper to confine the meaning of

'transfer' to transfer under the Transfer of Property Act or a situation

where 'transfer' has a statutory definition. What exactly is

contemplated by 'transfer' in Section 71A is where possession has

passed from one to another and as a physical fact the member of the

Scheduled Tribe who is entitled to hold possession has lost it and a

non-member has come into possession, would be covered by

'transfer'. Their Lordships observed \026 "The provision is beneficial

and the legislative intention is to extend protection to a class of

citizens who are not in a position to keep their property to themselves

in the absence of protection. Therefore when the legislature is

extending special protection to the named category, the Court has to

give a liberal construction to the protective mechanism which would

work out the protection and enable the sphere of protection to be

effective than limit by its scope." Their Lordship referred to three

earlier decisions of this Court, namely, Manchegowda Vs. State of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13

Karnataka, (1984) 3 SCR 502, Lingappa Pochanna Appelwar Vs.

State of Maharashtra, (1984) 2 SCR 224, Gamini Krishnayya Vs.

Guraza Seshachalam, (1965) 1 SCR 195, and a decision of House of

Lords in D (a minor) Vs. Bershire County Council, (1987) 1 All ER

20 (HL) laying down the proposition that a broad and liberal

construction should be given to give full effect to the legislative

purpose.

State of Madhya Pradesh Vs. Babu Lal & Ors., 1977 (2)

SCC 435, is an interesting case showing how this Court dealt with an

artistic device employed by a non-tribal to deprive a tribal of his land.

The M.P. Land Revenue Code, 1959, imposed restrictions on the

transfer of land by members of a Scheduled Tribe. Babu Lal, a non-

tribal, filed a suit for declaration against Baddiya, a Bhel \026 Notified

Scheduled Tribe, for declaration that his name be recorded in the

revenue record as Bhumiswami over the land of Baddiya. Baddiya

did not contest the suit and the parties filed a compromise conceding

to the claim of Babu Lal. The State Government intervened and filed

a petition in the High Court seeking a writ of certiorari, submitting

that the entire proceedings in the suit were in contravention of sub-

section (6) of Section 165 of the M.P. Land Revenue Code, 1959.

The judgment of the Civil Court based on compromise was sought to

be quashed. The High Court dismissed the petition holding that the

State could pursue the alternative remedy of filing a suit for

declaration that the decree was null and void. In appeal by special

leave, this Court set aside the judgment of the High Court and issued a

writ of certiorari to quash the judgment and decree passed in the civil

suit. It was held \026 'One of the principles on which certiorari is issued

is where the Court acts illegally and there is error on the face of

record. If the Court usurps the jurisdiction, the record is corrected by

certiorari. This case is a glaring instance of such violation of law.

The High Court was in error in not issuing writ of certiorari."

(underling by us).

The law laid down by this Court is an authority for the

proposition that the Court shall step in and annul any such transaction

as would have the effect of violating a provision of law, more so when

it is a beneficial piece of social legislation. A simple declaratory

decree passed by a civil court which had the effect of extinguishing

the title of a member of a Schedule Tribe and vesting the same in a

non-member, was construed as 'transfer' within the meaning of

Section 165(6) of the M.P. Land Revenue Code, 1959. Thus, we are

very clear in our minds that the expression 'transfer of immovable

property' as defined in clause (f) of para 2 of the 1956 Regulations

has to be assigned a very wide meaning. Any transaction or dealing

with immovable property which would have the effect of

extinguishing title, possession or right to possess such property in a

tribal and vesting the same in a non-tribal, would be included within

the meaning of 'transfer of immovable property'.

In a series of decisions, the High Court of Madhya Pradesh has

been consistently taking this view. To wit, see Jagdish Vs. State of

Madhya Pradesh, AIR 1993 MP 132, Wajeram Vs. Kaniram, 1992

Revenue Nirnaya 270, Dinesh Kumar & Anr. Vs. State of Madhya

Pradesh, 1995 Revenue Nirnaya 358.

What is adverse possession? Every possession is not, in law,

adverse possession. Under Article 65 of the Limitation Act, 1963, a

suit for possession of immovable property or any interest therein

based on title can be instituted within a period of 12 years calculated

from the date when the possession of the defendant becomes adverse

to the plaintiff. By virtue of Section 27 of the Limitation Act, at the

determination of the period limited by the Act to any person for

instituting a suit for possession of any property, his right to such

property stands extinguished. The process of acquisition of title by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13

adverse possession springs into action essentially by default or

inaction of the owner. A person, though having no right to enter into

possession of the property of someone else, does so and continues in

possession setting up title in himself and adversely to the title of the

owner, commences prescribing title into himself and such prescription

having continued for a period of 12 years, he acquires title not on his

own but on account of the default or inaction on part of the real

owner, which stretched over a period of 12 years results into

extinguishing of the latter's title. It is that extinguished title of the

real owner which comes to vest in the wrongdoer. The law does not

intend to confer any premium on the wrong doing of a person in

wrongful possession; it pronounces the penalty of extinction of title on

the person who though entitled to assert his right and remove the

wrong doer and re-enter into possession, has defaulted and remained

inactive for a period of 12 years, which the law considers reasonable

for attracting the said penalty. Inaction for a period of 12 years is

treated by the Doctrine of Adverse Possession as evidence of the loss

of desire on the part of the rightful owner to assert his ownership and

reclaim possession.

The nature of the property, the nature of title vesting in the

rightful owner, the kind of possession which the adverse possessor is

exercising, are all relevant factors which enter into consideration for

attracting applicability of the Doctrine of Adverse Possession. The

right in the property ought to be one which is alienable and is capable

of being acquired by the competitor. Adverse possession operates on

an alienable right. The right stands alienated by operation of law, for

it was capable of being alienated voluntarily and is sought to be

recognized by doctrine of adverse possession as having been alienated

involuntarily, by default and inaction on the part of the rightful

claimant, who knows actually or constructively of the wrongful acts

of the competitor and yet sits idle. Such inaction or default in taking

care of one's own rights over property is also capable of being called

a manner of 'dealing' with one's property which results in

extinguishing one's title in property and vesting the same in the wrong

doer in possession of property and thus amounts to 'transfer of

immovable property' in the wider sense assignable in the context of

social welfare legislation enacted with the object of protecting a

weaker section.

In Madhavrao Waman Saundalgekar & Ors. Vs. Raghunath

Venkatesh Deshpande & Ors., A.I.R. 1923 Privy Council 205, their

Lordships of the Privy Council dealt with a case of Watan lands and

observed that it is somewhat difficult to see how a stranger to a Watan

can acquire a title by adverse possession for 12 years of lands, the

alienation of which is, in the interests of the State, prohibited. The

Privy Council's decision was noticed in Karimullakhan s/o Mohd.

Ishaqkhan & Anr. Vs. Bhanupratapsingh, A.I.R. (36) 1949 Nagpur

265, and the High Court noted non-availability of any direct decision

on the point and resorted to borrowing from analogy. It was held that

title by adverse possession on Inam lands, Watan lands and Debutter,

was incapable of acquisition.

Reverting back to the facts of the case at hand, we find that in

the land, the ultimate ownership vests in the State on the principle of

eminent domain. Tribals are conferred with a right to hold land,

which right is inalienable in favour of non-tribals. It is clear that the

law does not permit a right in immovable property vesting in a tribal

to be transferred in favour of or acquired by a non-tribal, unless

permitted by the previous sanction of a competent authority. The

definition of 'transfer of immovable property' has been coined in the

widest possible terms. The definition makes a reference to all known

modes of transferring right, title and interest in immovable property

and to make the definition exhaustive, conspicuously employs the

expression - "any other dealing with such property", which would

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13

embrace within its sweep any other mode having an impact on right,

title or interest of the holder, causing it to cease in one and vest or

accrue in another. The use of the word 'dealing' is suggestive of the

legislative intent that not only a transfer as such but any dealing with

such property (though such dealing may not, in law, amount to

transfer), is sought to be included within the meaning of the

expression. Such 'dealing' may be a voluntary act on the part of the

tribal or may amount to a 'dealing' because of the default or inaction

of the tribal as a result of his ignorance, poverty or backwardness,

which shall be presumed to have existed when the property of the

tribal is taken possession of or otherwise appropriated or sought to be

appropriated by a non-tribal. In other words, a default or inaction 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

Article 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 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 Article 65 of Limitation Act nor Section 27 thereof

would be attracted.

In our opinion, the above said shall be the position of law under

the 1956 Regulations where 'transfer of immovable property' has

been defined and also under the 1950 Act where 'transfer of holding'

has not been defined. 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.

The period upto 6.4.1964, during which the land belonged to

the tribals, has to be excluded from calculating the period of

limitation. Undoubtedly on 7.4.1964 the land having been sold by a

tribal to a non-tribal with the previous permission of the sub-

divisional officer, the possession of defendant-respondent No.1 over

the land on and from that date shall be treated as hostile. In the suit

filed by the plaintiff-appellant in the year 1970 the period of limitation

shall have to be calculated by reference to Article 65 of the Limitation

Act. By that time only a period of 6 years i.e. between 1964 and 1970

had elapsed. The suit was not barred by limitation.

The learned counsel for the respondents relied heavily on Para

7-D of the 1956 Regulations and upon two decisions of the Orissa

High Court rendered by reference thereto namely Laxmi Gouda &

Ors. Vs. Dandasi Goura (deceased by LR) & Ors., AIR 1992 Orissa

5 and Madhia Nayak Vs. Arjuna Pradhan & Ors., 65 (1988) Cuttack

Law Times 360. We have carefully perused both the decisions. The

question which arose for decision therein was the effect of amendment

made in Para 7-D of the Regulations and given a retrospective

operation with effect from a back date. The High Court has held that

if adverse possession extending over a period of 12 years had already

stood perfected into acquisition of title before the date of the

amendment, then the amended provision could not be read so as to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13

extend the period of 12 years of acquisition of title by adverse

possession substituted as 30 years even if such date fell after

2.10.1973, the date with which the amendment commenced operating.

The question which is arising for decision before us namely whether a

non-tribal can at all commence prescribing acquisition of title of

adverse possession over the land belonging to a tribal and situated in a

tribal area was neither raised before the High Court nor decided by it.

A judicial decision is an authority for what it actually decides and not

for what can be read into it by implication or by assigning an assumed

intention to the Judges, and inferring from it a proposition of law

which the Judges have not specifically laid down in the

pronouncement. Still we make it clear that the provisions of Para 7-D

of the Regulations are to be read in the light of the principle which we

have laid down hereinabove. A tribal may acquire title by adverse

possession over the immovable property of another tribal by reference

to Para 7-D of the Regulations read with Article 65 and Section 27 of

the Limitation Act, 1963, but a non-tribal can neither prescribe nor

acquire title by adverse possession over the property belonging to a

tribal as the same is specifically prohibited by a special law

promulgated by the State legislature or the Governor in exercise of the

power conferred in that regard by the Constitution of India. A general

law cannot defeat the provisions of a special law to the extent to

which they are in conflict; else an effort has to be made at reconciling

the two provisions by homogenous reading.

Having held that the wrongful possession of the defendant-

respondent No.1 over the land purchased by the plaintiff-appellant has

not ripened into acquisition of title by adverse possession, the next

question which arises for decision is in relation to the appropriate

relief which should be allowed to the plaintiff-appellant. There was a

controversy before the trial court as to the exact extent of land and of

encroachment on the property belonging to the plaintiff-appellant by

the defendant-respondent, as the two properties are adjoining. The

plaintiff-appellant relied on the report of Amin while the trial court

had also got a survey conducted by a local commissioner who had

filed his report. The High Court has not recorded any specific finding

thereon because of the view taken by it on the plea of adverse

possession, resulting in dismissal of the suit.

The other question which arises is as to the construction made

by defendant-respondent No.1 over the property of the plaintiff-

appellant encroached upon by defendant-respondent No.1. During the

course of hearing, it was submitted by the learned counsel for

defendant-respondent No.1 that huge construction has come up over

the property in suit, while according to the plaintiff-appellant some

construction, rather a major portion thereof, has taken place during the

pendency of the appeal in this Court as no interim relief was granted

by the Court though it was prayed for by the plaintiff-appellant.

On these two aspects the case needs to be remanded to the trial

court for the ends of justice and determination of appropriate relief.

We propose to make suitable directions in this regard in the operative

part of the judgment.

The appeal is allowed. The judgment of the High Court is set

aside. The case is remanded to the trial court for decision in

accordance with the following directions:-

(1) The trial court shall find if an undisputed or proved map of the

land belonging to the plaintiff-appellant demarcating the area

encroached upon by defendant-respondent No.1 is available on

record, and if so, the same shall be accepted and made a part of

the decree; if not, the trial court shall appoint an Advocate-

Commissioner assisted by a person proficient in survey to draw

up a map of the plaintiff-appellant's land and demarcate

specifically therein the area encroached upon by defendant-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13

respondent No.1.

(2) The trial court shall determine, after hearing the learned counsel

for the parties and if necessary by recording additional

evidence, whether a decree for demolition of the construction,

made by defendant-respondent No.1, and specific restoration of

possession to the plaintiff-appellant, is called for. In the

alternative, the trial court shall determine if, in spite of the

encroachment having been proved, a decree for the award of

suitable compensation in lieu of demolition and restoration of

possession would be a more appropriate relief.

(3) In the event of the trial court forming an opinion in favour of

awarding compensation the same shall be assessed by reference

to the date of this judgment. The payment of compensation, as

quantified by the trial court, shall be a condition precedent for

condoning the encroachment and unauthorized construction of

the defendant-respondent No.1.

The trial court shall dispose of the suit, consistently with the

terms of this judgment, expeditiously and in any case within a period

of six months from the date of the communication of this judgment.

The costs incurred in the High Court and this Court shall be

borne by defendant-respondent No.1. The costs incurred in the trial

court shall be in the discretion of the trial court.