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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

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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

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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

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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)

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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,

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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,

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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

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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

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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

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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

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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

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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-

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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.