Nayak, J.
1. This Writ Appeal has arisen out of proceedings taken under the provision of Karnataka Schedule Caste and Schedule Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as the 'Act' for short). The Appellant is a purchaser of 2 acres 8 guntas of land comprised is Sy. No. 40 situated at Munnekolala Village, Varthur Hobli, Bangalore South Taluk which land hereinafter referred to as the ('Schedule land' for short). There is no controversy between the parties that the schedule land was granted in favour of one Sri Thoti Erappa vide Government Order No. 10/40-41 dated 25.10.1940. There is also no controversy between the parties that thoti Erappa belonged to Schedule Caste. There is no controversy between the parties that the 3rd respondent herein, namely, Sri M. Nanjappa is the son of late Thoti Erappa.
2. After the Act came into force, the 3rd respondent herein filed an application on 27.7.1989 under Section 4(1) of the Act before the Assistant Commissioner, Bangalore North Sub-Division, Bangalore Seeking restoration of the schedule land. The said application was registered as case No. KSC.ST 48/95-95 and in the said application, the respondent specifically stated that the schedule land is a granted land granted to his father vide Government order dated 10/40-41 dated 25.10.1940; he belongs to schedule caste.
3. On the basis of the said application and the documents enclosed therewith, the Assistant Commissioner issued notice to the appellant-purchaser. In response to the said notice, the appellant put in appearance before the Assistant Commissioner through an Advocate and filed his objection. At this stage itself, it needs to be noticed that in the statement of objection filed by the appellant, none of the basic facts pleaded by the Respondent No. 3 referred to above are either denied or contested. The only contention raised in the statement of objection was that the appellant purchased the schedule land from one Sri A. Gopal by registered deed dated 1.7.1963 and since then, he has been in continuous possession and enjoyment of the schedule land for over 30 years.
4. The Assistant Commissioner, on perusal of the revenue records and the materials placed before him and on consideration of the case law on the point held that the alienation/transfer of the schedule land in favour of the appellant was in violation of the condition of grant and therefore, null and void. Accordingly, the Assistant Commissioner allowed the application of the 3rd respondent and directed the resumption of the schedule land from the appellant and restoration of the same in favour of the legal representatives of the original grantee.
5. The appellant, being aggrieved by the said order of the Assistant Commissioner preferred an appeal to the Special Deputy Commissioner Bangalore under Section 5-A of the Act, Before the Appellate Authority also, the basic facts pleaded by the respondent No. 3 are not disputed. What was highlighted before the appellate Authority was that the appellant has perfected his title to the schedule land by adverse possession. The Special Deputy Commissioner rejected that contention and dismissed the appeal confirming the order of the Assistant Commissioner. That led to appellant filing Writ petition No. 16238/1999 in this Court.
6. Before the learned Single Judge, it was contended on behalf of the appellant that since the 3rd respondent denies execution of sale deed in favour of the vendor of the appellant, namely, Sri Gopal, the provision of the act have no application and therefore, the Assistant Commissioner acted without authority of law and jurisdiction. It was also contended before the learned single Judge that the appellant has perfected his title by adverse possession and the finding recorded by the Assistant Commissioner and the Special Deputy Commissioner are contrary to the evidence on record and bad in law, Both the contentions were not acceptable to the learned Single Judge, The result was dismissal of the Writ Petition by the order under appeal.
7. We have heard the learned Counsel for the appellant and Sri T.N. Raghupathy, learned Counsel for Respondent No. 3 and learned HCGP., for Respondents-1 and 2 and perused the records.
8. The same contention which were advanced before the learned Single Judge were reiterated before us also. Since the first contention raised before the learned Single Judge regarding want of jurisdiction in the Assistant Commissioner to pass the impugned order, if acceptable to us, goes to the root of the matter, it is appropriate that we should decide the first contention first.
9. In support of the first contention, learned Counsel for the appellant placed strong reliance on a judgment of a learned Single Judge of this Court in HANUMANTHAIAH V. N. RAMEGOWDA AND ORS., ILR 2002 KAR 2431. In that case, the petitioner therein claiming to be a grantee of 3 acres of land in Sy.No. 12 of H. Ranganathapura Village, Tarikere Taluk had made an application to the jurisdictional Assistant Commissioner for resumption and restoration of the said land under the provision of the act. The Assistant Commissioner, after necessary enquiry by his order dated 10.6.2000 held that the alienation/transfer effected is not in breach of terms of grant and in that view of the matter, he directed resumption of the land in favour of the Writ Petitioner therein. That order was reversed by the Deputy Commissioner, the Appellate Authority by his order dated 30.6.1998. While assailing the correctness of the order of the Deputy Commissioner, it was contend that the finding recorded by the Deputy Commissioner that there was no transfer of granted land is perverse and untenable. In dealing with that contention, learned Judge having considered the definition of the term 'transfer' defined under Section 2(e) of the Act, held that the definition of 'transfer' is an exclusive definition and it applies to a person in possession under any of the transactions referred to in the definition, i.e., sale, exchange, gift, mortgage, lease etc., Learned Judge held:
'The definition of 'Transfer' is an exclusive definition and it applies to a person in possession under any of the transaction referred to in the definition viz., sale, exchange, gift, mortgage, lease etc. In other words, Possession has to be traceable to some transaction like the one defined or to a transaction akin to it. But it the same is not traceable to any transaction then such a possession can be termed as the possession of the 'Trespasser' outside the definition.'
10. Having opined so and having found that the petitioner grantee was unable to show the title under which the respondents therein were in possession, learned Judge held that the order passed by the Assistant Commissioner is without jurisdiction.
11. Sri T.N. Raghupathy would canvas before us that the opinion of the learned Single Judge of this Court in Hanumanthaiah's case cannot be regarded as good law particularly having regard to statutory definition of the term 'transfer' under Section 2(e) and provisions of Sub-section (3) of Section 5 of the Act and it requires reconsideration.
12. Section 2(e) of the Act defines the word 'transfer'. It reads as follows:
'2(e) 'transfer' means sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction.'
13. The definition of the word 'transfer' is quite plain, clear, unambiguous and does not admit more than one meaning. Though the definition of the word 'transfer' refers to sale, gift, exchange, mortgage, lease or any other transaction in the first part of the definition, a deliberate departure is made by the Legislature itself so as to include any creation of a charge or any agreement of sale, or entering into any other transaction into the definition of 'transfer' so as to enlarge its scope and content. Therefore, with great respect to learned Judge, we are of the considered opinion that the definition of 'transfer' as defined under Section 2(e) of the Act cannot be regarded as an exclusive definition. On the other hand, it is undoubtedly an inclusive definition. We say this because of the words 'In any other transaction' occurring in the definition of the word 'transfer' and these words are very significant in deciding whether the definition is exclusive or inclusive. It is held by the Courts that word 'any' means 'each' and 'every'. Since the definition includes each and every transaction not only those who are specifically mentioned in the definition but also any other similar or analogous transaction, it cannot be said that the Appellant is not in possession in pursuance of 'any transaction' within the meaning of that phrase. In forming this opinion, we are also fortified by the provisions of Sub-section (3) of Section 5 of the Act which reads as follows:-
'5(3) For the purposes of this section, where any granted land is in possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of Sub-section (1) of Section 4.'
14. A legal fiction is enacted in Sub-section (3) of Section 5 to state that if a person is found to be in possession of the granted land, then, said person should be regarded as a person who has acquired the granted land by transfer. Of course, the fiction enacted in Sub-section (3) could be rebutted by a person against whom the fiction is applied by adducing evidence to show that he has not acquired the granted land despite the fact that he is in possession. In the instant case, admittedly, the appellant was found to be in possession of the schedule land which is a granted land within the meaning of Section 2(b) of the act on the relevant date. By force of the fixation enacted in sub section (3) of Section 5 of the Act, it should be held that the appellant has acquired the schedule land by transfer until the contrary is proved. The burden to prove the contrary is understandably placed on the appellant. The appellant has neither pleaded nor produced any proof to discharge that burden. Having regard to the definition of the word 'transfer' and also the fiction enacted in Sub-section (3) of Section 5 of the Act, it could not be said that the Assistant Commissioner in directing resumption and restoration of the schedule land in favour of the 3rd respondent acted without jurisdiction or without authority of law.
15. This takes us to the second contention of the learned counsel for the appellant. Of course, this contention was addressed before the Deputy Commissioner, before the learned Single Judge of this Court as well as before us. The Plea of adverse possession is essentially a factual plea and such plea should be pleaded specifically and should be proved by adducing substantive legal evidence. In the instant case, having perused the pleadings of the appellant before the Assistant Commissioner, grounds of appeal before the Deputy Commissioner and grounds raised in the Writ Petition, we should state that the appellant has not at all pleaded the ingredients of adverse possession nor we find any proof in support of the same. Realizing this flaw in the prosecution of the case of the appellant, the only contention placed before us by the learned Counsel for the appellant is that in the light of the judgment of the Supreme Court in K.T. huchegowda v. Deputy commissioner and ors., : [1994]3SCR151 the Assistant Commissioner, suo moto ought to have examined the question whether the grant made in favour of the father of the 3rd respondent was absolute grant or conditional grant in order to apply different period of limitation i.e., 12 years and 30 years depending upon his finding in terms of the above judgment of the Supreme Court. Of course, the Supreme Court in the said judgment, held that where the Government makes an absolute grant, the period of limitation is 12 years and 30 years limitation would apply only in case where conditional grant is made. In the instant case, the 3rd respondent in his application clearly stated that the land in respect of which he sought resumption is a 'granted land' and his father was a person belonging to the Schedule Caste; there was a condition in the grant order not to alienate the granted land forever. These ingredients pleaded by the 3rd respondent/applicant find support from the entries made in the revenue records of the schedule land. The appellant, nowhere in his statement of objection has pleaded that the grant made in favour of the father of the 3rd respondent was an absolute grant within the meaning of the term as elucidated by the Apex Court in the Judgment in : [1994]3SCR151 .
Since the appellant has failed to raise such factual plea, the argument built upon by his counsel on the assumption of a non existing plea is required to be noticed only to be rejected. Both the Assistant Commissioner and the Deputy Commissioner having regard to the entries made in the Revenue records and other materials available with them have concluded that the schedule land is a 'granted land' within the meaning of that term and that alienation took place in breach of the conditions of grant. The said finding of fact could not be condemned as perverse as contended by the learned Counsel for the appellant.
In the result and for the foregoing reasons, the Writ Appeal fails and it is accordingly dismissed with no order as to cost.