Judgment:
1. The plaintiff has come up in second appeal feeling aggrieved by the judgments and decrees of the Courts below, directing his suit for declaration of title and issuance of a permanent preventive injunction to be dismissed.
2. The suit property consists of land survey No. 11, 12, 13 and 14 total area 8 Bighas 16 Biswas situated at village Reenzha, Tahsil Sheopur-Kalan. The defendant/respondents are the Bhumiswamis of the land.
3. On 31-1-1979 the plaintiff filed a suit alleging that he had been in possession of the suit land for a period of last 15 years, continuously, openly and as an owner and hence he had acquired the title in the suit property by adverse possession. As the defendants intended to forcibly dispossess the plaintiff, the suit had to be filed.
4. The defendants on being noticed filed a written statement admitting the claim of the plaintiff on all counts and conceding that they had no objection to the plaintiff being declared a Bhumiswami of the suit land.
5. The defendants belong to Sehariya tribe notified as an aboriginal tribe for the entire State of Madhya Pradesh, and Sheopur-Kalan has also been notified as an area predominately inabitated by aboriginal tribe for the purpose of Clause (i) of Sub-section (6) of Section 165 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as the Code' for short). (For notifications see pages 620-604 of M.P. Land Revenue Code, 1959 by Dr. Harihar Niwas Dvivedi, Eleventh Edition, 1989).
6. The Courts below have held that the defendants being persons belonging to an aboriginal tribe, their acceptance of claim made by the plaintiff i.e. acquisition of title by adverse possession over an agricultural holding of the defendants, if recognised, would entail extinction of the defendantes' title, vesting the same in the plaintiff and hence could not be recognised by the Courts, being violative of express prohibition contained in Section 165(6) of the Code abovesaid.
7. Section 165(6) of M. P. Land Revenue Code, 1959 reads as under
'165. Rights of transfer. -- (1) to (5).... etc.....
(6) Notwithstading anything contained in Sub-section (1) the right of Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf for the whole or part of the area to which 'the Code' applies shall -
(i) in such areas as are predominately inhabited by aboriginal tribes and from such date as the State Government may, by notification specify, not be transferred nor it shall be transferable either by way of sale or otherwise or as a consequence of transaction of land to a person not belonging to such tribe in the area specified in the notification;
(ii) in areas other than those specified in the notification under Clause (i), not to be transferred or be transferable either by way of sale or otherwise or as a consequence of transaction of land to a person not belonging to such tribe without permission of a Revenue Officer not below the rank of Collector, given for reasons to be recorded in writing.
Explanation. -- For the purpose of this section the expression 'otherwise' shall not include lease.'
8. Section 9 of the Code of Civil Procedure ordains the Courts to try all suits of civil nature except those of which cognizance is either expressly or impliedly barred. It is implicit in the provision that the Court would uphold only such claim of a civil nature, acceptance whereof is not barred either expressly or by implication.
9. The questions arising for decision in this second appeal are as framed by this Court on 29-6-1985 :
(i) Whether the Courts below illegally and on surmises and conjectures were not correct in dismissing the suit of the plaintiff particularly when the parties were not at issue and the judgment ought to have been pronounced under the provisions of Order 12, Rule 6 and Order 15, Rule 1 of the Code of Civil Procedure?
(ii) Whether the judgment and decree of the Courts below are illegal and arbitrary in the absence of any evidence against the plaintiff?
10. The learned counsel for the plaintiff/appellants submitted that Section 165(6) abovesaid prohibits transfer of title by an aboriginal but does not prohibit acquisition of title by operation of law, nor extinction of title in immovable property. The learned counsel further submitted that the plea of acquisition of title by adverse possession, analysed with the eye of law, means that the right of the defendants to institute a suit for possession, expires by reference to Articles 64-65 of the limitation Act, 1963, with the result that by reference to Section 27 of the Limitation Act, 1963, the title to property of the defendants extinguishes, natural consequence whereof being the plaintiff becoming the owner of the property. This does not tantamount to transfer of title so as to attract the wrath of Section 165(6) abovesaid, submitted the learned counsel.
10A. In support of the submission, the learned counsel placed reliance on Stroud's Judicial Dictionary (4th edition, Vol. I, pages 71-72) wherein the following passage occurs:
' 'Adverse possession' designates a possession in opposition to the true title and real owner; and implies that it commenced in wrong and is maintained against right.' 'Land unassignable by its owner might be acquired by adverse possession, or, as it is sometimes expressed, by prescription (under the Real Property Limitation Acts) against the owner, e.g. land of a railway company.'
11. The definition of 'transfer of property' given in Section 5 of the Transfer of Property Act, 1882, was referred to, which reads as under : --
' 'Transfer of property' defined in the following sections 'transfer of property' means an act by which a living person conveys the property in present or in future, to one or more other living persons, or to himself, and one or more other living persons; and to 'transfer property' as to perform such act.' 'In this section 'living person' includes a company or association or body of individuals, whether incorporated or not but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by comapnies, associations or bodies of individuals.'
12. The term 'transfer' is not defined in the M. P. Land Revenue Code, 1959. The object behind enactment of the provision is to see that the aboriginal tribes, basically down-trodden and mostly nomadic by nature, do always have land with them so that they have a settled position in their life and sustain themselves by agriculture.
13. The definition in Section 5, Transfer of Property Act itself suggests that it is meant for 'following sections' of the Transfer of Property Act. It is also not exhaustive of all modes of transfers and there may be modes of transfer which would not come within the special modes discussed in Transfer of Property Act. (See, Amir Bibi v. Aropiam and Ors., AIR 1919 Madras 1113 and Bhagwatibai v. Bhagwandas, AIR 1927 Sind 206).
14. the term 'transfer' also occurs in Sections 4 and 5 of the M. P. Ceiling on Agricultural Holdings Act, 1960. In Jagdish v. State of M.P. and Ors., Second Appeal No. 8/1992, decided on 12-10-1992, this Court departed from the definition of Transfer of Property' as given in Section 5 of the Transfer of Property Act, 1882, and held that -
'The transfer in any form whatsoever and howsoever styled, if it has the result of effecting the holding held by the holder, it was covered.' 'Keeping in view the Legislative intent and objective behind enactment it is clear that such decrees which would have the effect of extinguishing the title of the holder and vesting the same in someone else, though not falling within the ordinary meaning of the phrase 'transfer of property' would be 'transfers' within the meaning of the term as used in Sections 4 and 5 of the Act.'
15. In Pandey Orson v. Ram Chander Sahu and Ors., AIR 1992 SC 195 the term 'transfer' occurring in Section 71-A of Chhotanagpur Tenancy Act, 1908 came up for consideration of their Lordships. The term was not defined in the Act. The provision was the beneficial piece of legislation intended to protect the weaker sections of citizens who could not protect their land otherwise. Their Lordships chose to adopt a broad and liberal construction so as to give full effect to the legislative purpose and held :
'In Section 71A in the absence of a definition of transfer and considering the situation in which 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 and a situation of that type would be amenable to exercise of jurisdiction within the ambit of Section 71A.'
16. Any other interpretation of the term 'transfer' occurring in Section 165(6) of the M. P. Land Revenue Code, 1959, would defeat the purpose behind its enactment and would open gates for tricks and designs being adopted by unscrupulous land greedies to deprive aboriginals of the land held by them. It is a judicially noticeable fact that aboriginals are liberally granted land by the State, mostly on priority basis, with the object of settling them and for their upheaval. If only the theory of extinction of title of the aboriginals and acquisition of title in non-aboriginals by resort to the plea of 'adverse possession' was to be recognised it would not be difficult to find out cases where non-anoriginals would purchase the land though prohibited by law and then file suits of the nature as is at hand, compelling or persuading the aboriginal holders in conceding to the claim and thereby securing transfer of title in disguise.
17. This Court is definitely of the opinion that the term 'transfer' as occurring in Section 165(6) of the Code is not to be given restricted meaning, also not to be read in the light of the definition given in Section 5 of the Transfer of Property Act. It has to be liberally construed, assigning an extended meaning so as to cover every contingency which results in depriving the aboriginal holder of the title and vesting the same in any non-aboriginal. That interpretation only would satisfy the Legislative intent and the laudable public purpose behind.
18. The Courts below were not bound to decree the suit, merely because it was not contested by the defendants, unless and until they were satisfied, it was lawful to decree the claim.
19. No fault can be found with the judgments and decrees of the Courts below. The appeal is dismissed, though without any order as to costs.