TMI Blog2003 (11) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... osh, 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-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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 being a member of the Scheduled Tribes without the previous consent in writing of the competent authority. Explanation For the purposes of this sub-section, a transfer of immovable property in favour o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 (1) on and from the date of commencement of this regulation shall stand repealed, namely; (a) xxx xxx xxx (b) The enactmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven 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 . . . . .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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession, 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 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree passed in the civil suit. It was held '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 ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated 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 ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int 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- 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 ..... 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