1. The questions referred for the opinion of the Full Bench are as follows:--
(1) Whether the rights of a Bhumiswami can be extinguished by dispossession when he is out of possession for more than twelve years?
(2) Whether a person in possession in his own rights and adverse to the recorded Bhumiswami can claim the rights of a Bhumiswami acquired by adverse possession?
2. The agricultural land-in-suit is situated in village Palia Haider. This village formed part of the erstwhile Holkar State. The suit land is recorded in the name of the defendant-appellant as the Bhumiswami thereof. Initially the suit land was recorded in the name of the deceased Gopal father of the appellant.Gopal filed a suit (Civil Suit No. 32 of 1944) against the present respondents for possession of the suit land. This suit was dismissed on 30-11-1945. The respondents continued in possession of the suit land since then. In the year 1965 the present suit was filed by the respondents against the appellant for declaration that they have acquired rights of Bhumiswami by adverse possession and therefore were entitled to have their names mutated in place of the appellant as the Bhumiswami of the land. The appellant contested the suit and contended that the possession of the respondents over the suit land was permissive. The trial court held that the appellant's title to the suit land was extinguished and was acquired by the respondents by adverse possession. Consequently the plaintiff's suit was decreed. On appeal by the defendant appellant the finding of the trial court was maintained and the appeal was dismissed. The defendant preferred this second appeal against the decree of the lower appellate court. This appeal came up for hearing before Oza, J. At the hearing of the appeal the appellant placed reliance upon a decision of B. R. Dube, J. in Second Appeal No. 510 of 1965 (Bagadiram v. Onkar -- decided on 28-10-1975) wherein it was held that rights of a Bhumiswami cannot be acquired by adverse possession. Oza, J. who heard this appeal was of the opinion that the view taken by Dube, J. was not correct and requires reconsideration. He, therefore, referred the aforesaid questions of law for the opinion of a larger Bench. Initially the Chief Justice constituted a Division Bench to give opinion on the questions referred to. Before the Division Bench the former Advocate General who was noticed by the Division Bench contended that in this reference two Full Bench decisions of this court in Nahar v. Mst. Dukaihin (1974 MPLJ 257): (AIR 1974 Madh Pra 141) and Ramgopal v. Chetu Batte (AIR 1976 Madh Pra 160) will be required to be considered and that as conflicting views have been expressed in the aforesaid two Division Bench decisions the questions referred to the Division Bench may be referred to a larger Bench. Consequently the Division Bench was of the opinion that a larger Bench be constituted for giving an opinion on the questions referred. Therefore the Chief Justice has constituted this Full Bench and the matter has come up for hearing before us.
3. At the outset we may state that the learned Advocate General submitted before us that the two Full Bench decisions referred to above i.e. 1974 MPLJ 257 : (AIR 1974 Madh Pra 141) and AIR 1976 Madh Pra 160 have no bearing on the decision of the questions referred to us. It is, therefore, not necessary for us to consider whether there is any conflict between the views taken in the aforesaid two Full Bench decisions. The learned Advocate-General also submitted that the State Government has nothing to say in the matter and the Government is not concerned whether the questions referred to are decided one way or the other.
4. The learned counsel for the appellant at the forefront urged that if a person allows another person to be in adverse possession of his property for more than 12 years his right to such property may be extinguished but no corresponding right or title is conferred on the person in adverse possession. He placed reliance upon a Division Bench decision of this court in Mst. Sultan Jehan Begum v. Gul Mohd. (1972 MPLJ 969) : (AIR 1973 Madh Pra 72) B. R. Dube, J. has also placed reliance upon this decision for holding that title to agricultural land cannot be acquired by adverse possession. The said decision, however, does not support the contention of the learned counsel for the appellant although there are some observations in that judgment from which support may be derived by the appellant. In that case the auction-purchaser who purchased the property in auction sale in the year 1944 filed a suit for possession based on title against the person who objected delivery of possession to the auction-purchaser on the ground that he was an earlier purchaser from the owners of the property. This suit was decreed and the possession was delivered to the auction-purchaser in execution of the decree in the year 1960. In the meantime the objector filed the suit claiming declaration of title by adverse possession from the year 1943. On these facts it was held that institution of the suit by the auction-purchaser arrested adverse possession of the objector and the decree in favour of the auction-purchaser related back to the date of the suit and his right is not extinguished and that it could not be held that the objector perfected his title by adverse possession. This decision therefore, is not an authority for the proposition that title to property cannot be acquired by adversepossession. However, in paragraph 12 of the judgment it is stated that in the view of the court the law is clearly thus:
(1) When a person entitled to possession does not bring a suit against the person in adverse possession within the time prescribed by law his right to possession is extinguished. From this it only follows that if the former brings a suit against the latter within the prescribed period of limitation his right will not be extinguished.
(2) If a decree for possession is passed in the suit in his favour he will be entitled to possession irrespective of the time spent in the suit and the execution and other proceedings.
(3) The very institution of the suit arrests the period of adverse possession of the defendant and when a decree for possession is passed against the defendant the plaintiff's right to be put on possession relates back to the date of the suit.
(4) Section 28 of the Limitation Act merely declares when the right of the person out of possession is extinguished. It is not correct to say that that section confers title on the person who has been in adverse possession for a certain period. There is no law which provides for conferral of title as such on a person who has been in adverse possession for whatever length of time.
(5) When it is said that the person in adverse possession has perfected his title it only means this. Since the person who had the right of possession has allowed his right to be extinguished by his inaction, he cannot obtain the possession from the person in adverse possession and, as its necessary corollary the person who is in adverse possession will be entitled to hold his possession against the other not in possession, on the well settled rule of law that possession of one person cannot be disturbed by any person except one who has a better title.' The learned counsel for the appellant placed reliance upon the proposition No. 4 referred to above. In our opinion from the facts of the case as stated above the proposition of the law as stated at S. No. 4 above did not arise in that case and it was not necessary to set out the aforesaid proposition. We are also of the opinion that as will be presently seen the said proposition of law has not been correctly stated.
5. In Mohd. Abdul Jalil Khan v. Muhammad Obaidullah Khan (AIR 1929 PC228) the plaintiff, who was the real purchaser of a property in auction sale purchased benami in the name of the defendant and who remained in possession of the property for more than 12 years, was subsequently dispossessed by the ostensible auction purchaser. The plaintiff filed the suit for possession on the title acquired by him by adverse possession. It was contended by the defendant that under Section 66 of the Code of Civil Procedure the plaintiff was precluded from claiming that he purchased the property benami in the name of the defendant. Repelling this contention their Lordships held as follows :--
Where, however, as in the present case, the real purchasers have been allowed to remain in adverse possession for more than twelve years before dispossession, they are entitled to sue for possession on the title so acquired under the Limitation Act, and it is unnecessary for them to aver or prove that the auction purchases were made on their behalf.
In Lal Hemchand v. Lala Pearey Lal (AIR 1942 PC 64) the executor of a will who remained in possession of the property as a trustee of the trust created by the will was subsequently dispossessed by the real owner. He brought a suit for possession on the basis of title acquired by adverse possession. It was held by their Lordships of the Privy Council as follows: 'This Board held in (1866-67) 11 Moo Ind App 345 at p. 361 (PC), that if the owner whose property is encroached upon suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession. Section 28, Limitation Act, says: At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished. Lala Janaki Das and Ramchand having held the property adversely for upwards of 12 years on behalf of the charity for which it was dedicated, it follows that the title to it, acquired by prescription, has become vested in the charity and that of the defendant, if he had any, has become extinguished by operation of Section 28, Limitation Act. In view of the above categorical pronouncements of their Lordships of the Privy Council it is clear that if an owner of a property suffers another person to be in adverse possession thereof for more than 12 years his right ortitle to the said property is extinguished in favour of the person in adverse possession and the latter person acquires title to the same. In the circumstances, in our opinion, the proposition No. 4 stated in the aforesaid Division Bench Judgment of this court in 1972 MPLJ 969 : (AIR 1973 Madh Pra 72) with respect is not correctly stated and the first contention raised by the learned counsel for the appellant is not well founded.
6. It was then urged that whatever may be the position in regard to the general property the tenancy rights in agricultural holdings cannot be acquired by adverse possession. The learned counsel for the appellant contended that under Section 57 of the M. P. Land Revenue Code all lands belong to the State Government and are the property of the State Government and that Bhumiswami is tenure holder of lands held from the State. The rights of a Bhumiswami therefore can be acquired only under the provisions of M. P. Land Revenue Code and cannot be acquired by adverse possession. Reliance was also placed by the learned counsel for the appellant on the change of language in the relevant provisions of the Tenancy laws in force in erstwhile Holker State and of the erstwhile State of Madhya Bharat and the provisions of Land Revenue Code in regard to mutation of lands. The learned counsel further relied upon two Full Bench decisions of the Nagpur High Court in Punjaram Jagoba Teli v. Ramu Chin-too Gond (AIR 1940 Nag 49) and Tulsiram Jivanlal Lodhi v. Hyder Lalla Pinjara (AIR 1944 Nag 250).
7. It cannot be disputed, and no decision taking a contrary view was brought to our notice, that lease hold rights can be extinguished and acquired by adverse possession. A lease is an interest, though limited, in immoveable property and if a person having leasehold rights in property is dispossessed by another person and the lessee suffers such dispossession for the statutory period his leasehold rights are extinguished and acquired by the person in adverse possession. It is true that the person in adverse possession does not acquire any title qua the landlord but from this it cannot be reasonably deduced that the leasehold rights cannot be acquired by adverse possession. It is one thing to say that a person in adverse possession of lease hold right does not acquire any title against the landlord but quite another that such a person does not acquire theright of the tenant against whom he was in adverse possession for the statutory period. If lease hold rights pertaining to general property can be acquired by adverse possession we have to see whether any distinction can be made in regard to the tenancy rights in agricultural holdings. For that we have to see whether there is any provision in the law relating to agricultural land which prohibits acquisition of title by adverse possession.
8. Section 104 (1) of the Indore Land Revenue and Tenancy Act recognised dispossession as a mode by which rights of a holder in any land can be lost. This was the provision applicable when the adverse possession of the respondent in the present case commenced. After the repeal of the Indore Land Revenue and Tenancy Act the provisions of M. B. Land Revenue and Tenancy Act became applicable to the present case. Section 86 of the said Act also recognised that a holder of a land can lose his rights in any land by dispossession. However, no such provision is made in the M. P. Land Revenue Code, 1959. Section 109 of the Code provides that any person lawfully acquiring any right or interest in land shall report about the same to the patwari and the procedure for mutation will then follow. It was contended by the learned counsel for the appellant that as there is a material departure in the language of Section 109 of the Code from the language of Section 104 of the Indore Act and Section 86 of the Madhya Bharat Act, it has to be inferred that loss of right of a Bhumiswami by dispossession are not recognised by the Code. The contention cannot be upheld. Section 109 of the Code provides that any person lawfully acquiring any right or interest in land may report about the same to the patwari and the procedure for mutation will then follow. The question therefore which arises for consideration is whether acquisition of right by adverse possession is lawful or not. It is true that the initial act of dispossession of the true owner by the person in adverse possession may or may not be lawful but it cannot be disputed that acquisition of the by adverse possession for the statutory period is lawful in the absence of a contrary provision in the statute. No provision of the M. P. Land Revenue Code or of the earlier tenancy laws referred to above was brought to our notice prohibiting acquisition of title to agricultural land by adverse possession. When the Indore Act and the Madhya Bharat Act were inforce prior permission of the Collector or the Suba was necessary for transfer of the land by a tenure holder. There was also a provision for validation of sale made without prior permission of the Collector. No such provision is made in the M. P. Land Revenue Code and now the Bhumiswami can transfer by sale his rights in his land without any restriction although provision is made placing impediment in the transfer of and belonging to members of Scheduled Tribes. Acquisition of title by adverse possession of Bhumiswami rights of a tenure holder, who can transfer his rights without any impediment presents no difficulty because it may be stated as a general proposition of law that transferable rights can be acquired by adverse possession and such acquisition of right is lawful. If there is any legal impediment in the transfer of a right and a person is put in possession in contravention or circumvention of such impediment and remains in adverse possession for more than the statutory period, the questions whether in such a case the person in adverse possession can acquire title by adverse possession and whether such acquisition of title is lawful or not may present some problems. It is however, not necessary for us to consider this aspect of the matter in detail because it does not arise in this case and the answer may vary and depend on the facts of each case. When a person reports to the Patwari under Section 109 of the M. P. Land Revenue Code that he has acquired title to the land of a Bhumiswami by adverse possession and, therefore, his name be recorded in place of the recorded Bhumiswami, the concerned authority has the right to enquire whether the acquisition of title by such person was lawful or not. If the person claiming title by adverse possession was put in or had obtained possession of the land in contravention of any provisions of law prohibiting or invalidating the transaction which has occasioned much adverse possession or if any such provision of any statute was thereby circumvented the concerned authority has the power to refuse mutation of the person claiming to have acquired title by adverse possession on the ground that the acquisition of title claimed by him is not lawful. If the acquisiton of title by adverse possession is lawful, the revenue authorities are bound to recognise the person in adverse possession as the Bhumiswami and to record his name inthe revenue papers. Thus a person mayacquire rights of a Bhumiswami by adverse possession qua that Bhumiswami but whether he acquires any right in that land qua the State Government would depend upon the question whether the acquisition of the right by adverse possession is lawful or not. In this view of the matter the contention of the learned counsel for the appellant that as Bhumiswami rights can be conferred only by the provisions of the M. P. Land Revenue Code they cannot be acquired by adverse possession has no merit and has to be negatived.
9. The learned counsel for the appellant placed reliance upon two Full Bench decisions of Nagpur High Court in Punjaram Jagoba Teli v. Ramu Chintoo Gond (AIR 1940 Nag 49) and Tulsiram Jiyanlal Lodhi v. Hyder Lalla Pinjara (AIR 1944 Nag 250) and a decision of the Supreme Court in Dindayal v. Rajaram (AIR 1970 SC 1019) in support of his contention that tenancy rights in agricultural land cannot be acquired by adverse possession. These decisions do not support the contention of the learned counsel for the appellant. It was held in those decisions that if a tenant in possession was dispossessed and loses his rights in the holding to a person in adverse possession the rights of the landlord to evict the person in adverse possession are not affected. These decisions are not authorities for the proposition that the tenancy rights in agricultural land cannot be lost or acquired by adverse possession. As stated above the rights of a Bhumiswami can be extinguished by adverse possession and acquired by the person in ad-verse possession qua the Bhumiswami but whether the person acquiring the rights by adverse possession would be recognised by the State as the Bhumiswami would depend upon the question whether the acquisition of such rights was lawful and if the acquisition of such right was not lawful the State has a right not to recognise the person claiming to have acquired title by adverse possession as a Bhumiswami.
10. In State of M.P. v. Babulal (AIR 1977 SC 1718) the respondent No. 1 had filed a suit for declaration that his name be recorded in the revenue records as a Bhumiswami of the lands in question The respondent No. 2 did not contest the suit and a decree was passed on the basis of a compromise whereby the respondent No. 2 who was the Bhumiswami of theland admitted that he had transferred his Bhumiswami rights in favour of the respondent No. 1. The State Government filed a writ petition in this court contending that the entire proceedings were in contravention of Sub-section (6) of Section 165 of M. P. Land Revenue Code. The writ petition was dismissed by this court on the ground that the State could file a suit for declaration that the decree was null and void. The Supreme Court allowed the writ petition and quashed the decree of the trial court on the ground that on the face of the record the court had usurped jurisdiction because the alleged transfer of the land by a member of a Scheduled Tribe was in contravention of the provisions of Sub-section (6) of Section 165 of the M. P. Land Revenue Code. Thus when a claim is put forth by a person that he has acquired title to a Bhumiswami rights by adverse possession and even if he is armed with a decree of a civil court the concerned authorities before recognising such a person as Bhumiswami can enquire into the matter to find out whether the title claimed by such a person was lawfully acquired or not and if the revenue authorities come to the conclusion that such acquisition of title contravened any provision of law it will be open to them not to recognise such a person is a Bhumiswami.
11. In Tuka Lakhu Kadam v. Ganu Vithu Kadam (AIR 1931 Bom 24) a Division Bench of the Bombay High Court has held that if the alienating watandar fails to recover possession from a person in adverse possession by reason of an absolute sale within 12 years he is barred and the succeeding watandars claiming title as heirs of the previous watander are similarly barred and rights of such a watandar are extinguished by adverse possession. It was further held in the aforesaid decision that in case the State is inclined to intervene to set aside an unauthorised alienation the State can do so irrespective of the law of limitation for suit we respectfully agree with the view taken in this decision; we have also derived support for the view which we have taken from a decision of the Supreme Court in Padminibai v. Tangawa (AIR 1979 SC 1142). In that case the plaintiff filed a suit for possession of agricultural land on the ground that her husband had acquired title thereto by adverse possession. It was held that the plaintiff's husband acquired ownership in the suitland by prescription and the suit filed by the plaintiff within 12 years of the death of her husband was within limitation. Although the question whether tenancy right in agricultural holdings can or cannot be acquired by adverse possession was not raised and dealt with by their Lordships it can safely be assumed that their Lordships would not have failed to take notice of it if as a matter of law such rights cannot be acquired by ad-verse possession.
12. In view of the foregoing discussion in our opinion the view taken by B.R. Dube, J. in second appeal No. 510 of 1965 (Madh Pra) (Bagdiram v. Onkar) that Bhumiswami rights cannot be acquired by adverse possession is not correct. Our answer to the questions referred to us is therefore as follows:--
(1) The rights of a Bhumiswami can be extinguished by dispossession when he in out of possession for more than 12 years.
(2) A person in possession in his own rights and adverse to the recorded Bhumiswami can claim the rights of a Bhumiswami acquired by adverse possession but when he puts forth such a claim before the State Government his right can be recognised only if it is found that such rights were lawfully acquired as indicated above.
13. The appeal may now be listed for disposal before the single Bench. There shall be no order as to costs of this reference.