2003 Supreme(SC) 1191

2003(8) Supreme 597
SUPREME COURT OF INDIA
(From Orissa High Court)
R.C. Lahoti & Ashok Bhan, JJ.
Amrendra Pratap Singh -Appellant
versus
Tej Bahadur Prajapati & Ors. -Respondents
Civil Appeal No. 11483 of 1996
Decided on 21-11-2003
Counsel for the Parties :
For the Appellant : V.K.S. Chaudhry, Sr. Advocate, Vivek Raj Singh, Prakash Kr. Singh and A.S. Pundir, Advocates.
For the Respondents : Anoop G. Choudhary, Sr. Advocate, Suresh C. Gupta, Anil Hooda, Guneshwar, Kaushal Yadav, Ranbir Singh Yadav, Advocates.

IMPORTANT POINT
Acquisition of title in favour of a non-trial 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.

Headnote:Constitution of India-Article 244 -Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956-Regulations 2, 3, 3A, Para 7D as inserted by Orissa Regulation No. 1/1975-Orissa Merged States (Laws) Act, 1950-Limitation Act, 1963-Article 65, Section 27-Adverse possession-Plea of-Suit property consisting of a piece of agricultural land belonging to persons of a scheduled tribe State of Orissa-Transfer of land in favour of plaintiff not belonging to Scheduled Tribe-Defendants purchased adjoining land from original holders and constructed buildings-Defendants encroached upon some portion of land belonging to plaintiff respondent-Disputes between parties-Defendants denying title of plaintiffs while pleading their title by adverse possession over the suit land-Meaning of transfer of immovable property -Whether acquisition of title in favour of a non tribal by invoking doctrine of adverse possession over immovable property belonging to a tribal, prohibited by law-(Yes).

       Held : The nature of the property, the nature of title vesting in the rightful owner, the king 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. (Para 22)

       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 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 propery 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. (Para 24)

       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. (Para 26)