IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE THIRTEENTH DAY OF NOVEMBER, TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SMT. JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE S. ASHOK KUMAR WRIT PETITION NO : 23429 of 2005 Between: R.Jayamala Devi @ Jayamala Reddy Rep. by through General Power of Attorney Holder R.Raghu Ram Reddy, S/o. R. Surender Reddy, aged about 45 years R/o. 1-10-147, Begumpet, Hyderabad. ..... PETITIONER AND 1 The Special Court under A.P.Land Grabbing (Prohibition) Act at Hyderabad, Burgula Ramakrishna Rao Buildings, Lower Tank Bund, Hyderabad Rep. by its Registrar. 2 The State of Andhra Pradesh Rep. by its Mandal Revenue Officer Shaikpet Mandal Hyderabad. 3 Gulam Mohammed Omar Khan S/o. Late Mohd. Afzal Khan R/o. 13-6-437/1, Khaderbagh Birbun, Hyderabad. 4 M/s. Madan Mohanlal Shriram Pvt Ltd., (A Company registered under the companies Act) Registered Office at Sanskrit Bhawan, Jhandewalan, New Delhi Rep. by its G.P.A. Holder Sri I.M. Bhatta .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue an order, direction more particularly one in the nature of writ of Certiorari and after calling for the records in L.G.C.No.140 of 1998, dt. 15-2-2005 on the ﬁle of the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and quash the same, and pass such other order or orders as this Hon'ble court may deem ﬁt and proper in the circumstances of the case. Counsel for the Petitioner:MR.G.VIDYASAGAR Counsel for the Respondent Nos.1 and 2: GP FOR REVENUE Counsel for the Respondent No.3: None Counsel for the Respondent No.4: Sri M.S.R. Subrahmanyam The Court made the following : THE HON'BLE SMT. JUSTICE T.MEENA KUMARI and THE HON'BLE SRI JUSTICE S. ASHOK KUMAR WRIT PETITION No :23429 of 2005 Judgment: (Per Hon’ble Smt. Justice T. Meena Kumari) Questioning the legality and validity of the order dated 15.2.2005, passed by the Special Court constituted under A.P. Land Grabbing (Prohibition) Act, Hyderabad, in L.G.C.No.140 of 1998, the petitioner ﬁled the present writ petition. 2. Petitioner claims that she is the owner of Plot No. 10, bearing Municipal No. 8-2-120/85 admeasuring Ac.2.01 guntas comprised in Survey No. 403/15 corresponding to T.S. No.4/1/1/c, Block D, Ward No.10 of Shaikpet Village, Shaikpet. Alleging that the 3rd respondent herein grabbed the said land, she ﬁled the aforementioned L.G.C. before the Special Court seeking to declare R-3 as land grabber with a direction to deliver the said plot. She also sought for a consequential direction to prosecute and punish the 3rd respondent under the provisions of Act XII of 1982; that to pay damages of Rs. 10,00,000/- and costs. 3. According to the petitioner, the land in Survey No.403 (old Survey No.129) of Shaikpet Village, originally belonged to Sarfekhas of Nizam of Hyderabad and the same was made over to the Jubilee Hills Municipal Committee by the Nizam of Hyderabad for development. While so, during the year 1350 Fasli, the Jubilee Hills Municipal Committee appears to have allotted the said land to the petitioner’s vendor, Syed Moinuddin Razvi for a consideration of Rs. 1,012.8 annas, who, in turn, sold the same to the petitioner under a registered sale deed dated 2.5.1963 and petitioner asserts that since then she has been in possession and enjoyment of the said property by paying taxes and her name was also mutated in the revenue records. She, therefore, claims that she has absolute right over the property in question. Even otherwise also, petitioner contends that since herself and her predecessors-in-title have been in continuous, peaceful and uninterrupted possession over the property in question for over sixty years, she has perfected her title to the property by adverse possession also. While things stood thus, petitioner alleges that the 3rd respondent, without any right, interest or legal entitlement, has grabbed the said land on 2.8.1998. Originally, the L.G.C. was ﬁled against the 3rd respondent only. 4. While resisting the contentions of the petitioner, the 3rd respondent ﬁled counter denying the allegation of the petitioner that she is the owner and possessor of the land in Survey No. 403/15 (old SurveyNo.129/5), corresponding to T.S. No. 4/1/1/C; that the application schedule property does not fall within the said survey number. He further claimed that he is the owner of the application schedule land admeasuring 2.00 acres out of the total extent of Ac.9.26 guntas situated in Survey No. 129/5 (old) situated at Kanchatali Khana, Banjara Hills, Shaikpet, having purchased the same for a valid sale consideration under a registered sale deed dated 9.1.1959 from one Rasheed Ahmed. The respondent also denied the claim of the petitioner that herself and her predecessors- in-title have been in possession of the application schedule land for over sixty years. According to this respondent, the application schedule property is a “sarfekhas Mubarak property” and the sarfekhas authorities granted patta for the entire extent of land admeasuring Ac. 9.26 guntas in favour of one Rasheed Ahmed, who in turn said to have executed a sale deed dated 9.1.1959 in respect of the application schedule property admeasuring 2.00 acres. 5. Subsequently, the Mandal Revenue Oﬃcer, Shaikpet who got himself impleaded as 2nd respondent to the L.G.C ﬁled counter denying the allegations and stated that the respondent No. 3 has no manner of right or title over the application schedule property. The land in dispute is classiﬁed as Government Poramboke in the Revenue and Survey records. It is stated that the applicant is claiming the application schedule land as it is in Plot No.10 of Jubilee Hills Municipality development area which was allotted to one Syed Moinuddin Razvi. But the same does not ﬁgure in the list of recognized plots of the said Municipality and the said plot is unrecognized plot and the same is a government land. The petitioner in collusion with respondents 3 ﬁled the application to grab valuable Government land and created documents for the purpose of making a false claim over the land in question. 6. On the basis of the aforesaid pleadings, the Special Court framed the following issues for consideration. 1. Whether the applicant has title to the application schedule property ? 2. Whether the rival title set up by the respondents is true, valid and binding ? 3. Whether the respondents are land grabbers within the meaning of Act XII of 1982 ? 4. Whether the applicant, in case of her success in the application, is entitled to damages, as claimed ? 5. To what relief ? 7. At that stage, the 4th respondent-company got itself impleaded as a party respondent to the proceedings in the L.G.C. and the G.P.A. holder of the said company ﬁled its counter resisting the claim of the petitioner. In the counter ﬁled by the 4 th respondent, the 4th respondent has stated that it purchased Plot No.8 admeasuring Ac. 3.20 guntas of land situated in Survey No. 403(old Survey No. 129) situated at Shaikpet Village, now known as Banjara Hills under a registered sale deed dated 24.10.1961 from one Shahad Ali Khan for a sum of Rs. 42,350/- and ever since it is in continuous possession and enjoyment of the same by paying municipal taxes and it was also assigned municipal No. 8-2-120/84. It is further stated that when the petitioner tried to interfere with its possession, it ﬁled O.S. No. 107 of 1968 before the Additional Chief Judge, City Civil Court, Hyderabad against the petitioner and the Government for mutation of its name in the appropriate village registers and survey records, which was also allowed. The petitioner who was the ﬁrst defendant in the said suit, preferred an appeal, namely, C.C.C.A No. 105 of 1975 before this Court and the said appeal had been dismissed by a Division Bench of this Court. Assailing the same, the matter was carried to the Supreme Court, by way of ﬁling an S.L.P. which also ended in dismissal. 8. While so, the 3rd respondent herein and one Md. Yousuf Patel, ﬁled O.S. No. 1271 of 1988 before the IV Additional Judge, City Civil Court, Hyderabad, against the sister concern of the 4th respondent seeking a declaration that they are the owners of the suit schedule land bearing S. No.129/5 old (New Survey No.403) admeasuring Ac.2.00 at Kanchi Thatte Khana, Banjara Hills, Shaikpet Village, Golkonda Mandal and for permanent injunction restraining the defendant therein from interfering with their possession. In that suit, they also ﬁled I.A. No. 772 of 1988 seeking temporary injunction. Initially, injunction was granted in favour of the plaintiﬀs in the said suit, however, the same was modiﬁed to the extent that the interim injunction granted would not operate on Plot No. 8 in Survey No.403, (old No. 129), which was the subject matter of the earlier suit, O.S. No.107 of 1968. Then the plaintiﬀs in O.S. No. 1271 of 1988 sought police protection for implementation of the injunction order in I.A. No. 772 of 1988. It is further stated that the 1st plaintiﬀ in O.S. No. 1271 of 1988, ﬁled a writ petition, namely, Writ Petition No. 9223 of 1992 against the sister concern of the 4th respondent making it as a party respondent to the said writ petition seeking police assistance to implement the order in I.A. No. 772 of 1988, which was disposed of by this Court on 20.4.1993 with certain directions. 9. It is also averred that the Revenue Divisional Oﬃcer, Hyderabad, ﬁled L.G.C. No. 140 of 1989 before the Special Court against the 3rd respondent and one Yousuf Patel in respect of the land which is the subject matter of O.S. No.1271 of 1988. When the Governmental authorities tried to interfere with the possession of this respondent, it ﬁled I.A. No. 347 of 1993 in L.G.C. No.140 of 1989 to implead it as a party respondent to the said L.G.C. and accordingly it got impleaded as a respondent. It further alleges that the 3rd respondent and one Yousuf Patel also ﬁled a suit in O.S. No. 443 of 1989 before the IV Additional Judge, City Civil Court, Hyderabad against the State Government in respect of the very same property. Since the subject matter in all those matters being the same, the suits, viz., O.S. Nos. 1271/88 and O.S. No. 443 of 1989 on the ﬁle of the IV Additional Judge City Civil Court, Hyderabad were transferred to the Special Court for disposal along with L.G.C. No.140 of 1989, which were renumbered as L.G.C. Nos. 266 and 267 of 1994. In the rejoinder ﬁled by the Government in the said L.G.C., the Government admitted that the schedule land of Ac.2.00 is a part of Plot No.8 of Jubilee Hills Development plan situated at Road No.2, Banjara Hills. It is stated that the L.G.C. Nos. 266 and 267 of 1994 were dismissed. Further, L.G.C. No.140 of 1989 ﬁled by the State was also dismissed declaring it (4th respondent herein) as the absolute owner and possessor of the application schedule property. This respondent also denied the claim of the petitioner that she is the owner of an extent of 2.00 Acs., land and that she has been in possession and enjoyment of the same for the last sixty years. 10. On the basis of the aforementioned pleadings, the Special Court framed the following additional issues for consideration. 1) Whether the plot of land claimed by the applicant in the L.G.C. as Plot No.10 is the same as Plot No. 8 situated on the North main road of the Jubilee Hills as per Development Plan of 1355 Fasli identiﬁed as per the Plan ﬁled as Ex.A.2 in O.s.No.107/1968 on the ﬁle of the Additional Chief Judge, City Civil Court, Secunderabad? 2) Whether the claim of the applicant for Plot No.10, in the present L.G.C is barred by res judicata by reason of the judgment and decree in O.s.No.107 of 1968 on the ﬁle of Additional Chief Judge, City Civil Court, Secunderabad, which became final? 11. To substantiate the claim of the petitioner, the son of the petitioner was examined as P.W.1 and Exs. A1 to A31(b) were marked in favour of the applicant. On behalf of the 2nd respondent, R.W.1 was examined and on behalf of the 4th respondent herein (i.e. 3rd respondent in the L.G.C.), the G.P.A. Holder of the company was examined as R.W.2 and Exs. B1 to B51 were marked. The Deputy Director Survey and Land Records, who was appointed as Commissioner was examined as R.W.3 and Exs. C1 & C2 were marked. 12. Before the Special Court, petitioner contended that the application schedule property originally belonged to Sarfekhas of Nizam of Hyderabad and the same was made over to Jubilee Hills Municipal Committee by the Nizam of Hyderabad in the year 1350 Fasli for development and the Jubilee Hills Municipal Committee developed the said area by dividing the same into plots. Petitioner further pleaded that she purchased the land in Plot No.10 from Syed Moinuddin Razvi in the year 1963 and the same correlates to T.S No.4/1/1/C, Block No.D of Ward No.10. The son of the petitioner, who was examined as P.W.1, deposed that respondents 2 and 3 in the L.G.C. have no manner of right whatsoever over the application schedule land and denied the claim of the of the 2nd respondent that the land belonged to the Government. He further deposed that the 3rd respondent in the L.G.C., who is the 4th respondent herein under the guise of the decree in O.S. No. 107 of 1968 is wrongfully identifying the application schedule land as that of Plot No. 8. Petitioner also ﬁled Exs. A4 to A13 before the Special Court to show that her vendor purchased Plot No.10 in 1350 Fasli. She claimed that under Ex.A14 she purchased the said land from her vendor in the year 1963; that her name was also mutated in the revenue records of Shaikpet Village under Ex.A16, which is the certiﬁed copy of mutation register pertaining to the year 1964. She also ﬁled Exs.A18 and A19, which are the certiﬁed copies of the pahanies for the years 1964-65 to show that she is the pattedar and possessor of the applicant schedule land. Ex.A20 is the pattedar passbook issued in favour of the applicant relating to the application schedule land. Petitioner alleged that when the 3rd respondent without any legal right grabbed the application schedule land under the guise of decree in O.S. No.107 of 1968 wrongfully identifying the application schedule land as Plot No.8, she filed the aforementioned L.G.C. 13. While resisting the aforementioned allegations of the petitioner, the Mandal Revenue Oﬃcer, who got himself examined as R.W.1 before the Special Court, deposed that an extent of Acs. 2.01 guntas situated in T.S No. 4/1/1/C, Block D, Ward No.10 would correspond to Sy. No.403 of Shaikpet Vilallage and the same is classiﬁed as Government Poramboke in the revenue and town survey records. He further deposed that during the years 1964- 1971 a town survey was conducted by the revenue oﬃcials and on completion of the said survey, a notiﬁcation was issued by the Government under Section 13 of the Survey and Boundaries Act in respect of the application schedule land. He further claimed that as no civil suits were ﬁled questioning the said survey, the same had become ﬁnal and that as per the entries in the T.S.L.R., the application schedule land is a Government land. He also ﬁled Exs. B50 and B51, which are the copies of the extracts and the location of the sketch of the Jubilee Hills Municipal Plot Nos. 8,9,10 and 100. He also admitted in his cross- examination that there is a previous litigation with respect to the land in the western portion of the schedule land and then the Government ﬁled L.G.C. 39 of 1991 claiming the said land as a Government land. 14. While reiterating the contentions in the counter ﬁled by it, the G.P.A. holder of the 4 th respondent company, who was examined as R.W.3 deposed that 4 th respondent purchased the Plot No. 8 admeasuring Acs. 3.20 guntas in Survey No. 403, Old Survey No. 129 situated at Shaikpet Village under registered sale deed, Ex.B1, dated 24.10.1961 and ever since, it has been in continuous possession and enjoyment of the same. He further deposed that when, they applied to the Collector, Hyderabad for mutation of its name in the revenue records, the petitioner tried to interfere with its possession and at that time, 4th respondent ﬁled a suit in O.S. No.107 of 1968 for declaration of title and the same was decreed. Aggrieved, the petitioner carried the matter in appeal before this Court, namely, C.C.C.A. No.105 of 1975, which also stood dismissed. He further claimed that the S.L.P. preferred against the judgment in C.C.C.A. No. 105 of 1975 also ended in dismissal under Ex.B13. However, he claimed that the State Government did not ﬁle any appeal against the decree in the aforementioned suit. He also deposed that the Commissioner appointed in O.S No. 107 of 1968 clearly identiﬁed and demarcated its plot and also ﬁled report under Ex. B14 to that eﬀect. Therefore, he claimed that the petitioner has no right and title over plot No. 8, the application schedule land. 15. The Special Court, having heard the learned counsel for the parties and having perused the material on record found that the respondents 3 and 4 are not land grabbers. Aggrieved, the petitioner ﬁled the present writ petition. 16. Sri G. Vidya Sagar, learned counsel for the petitioner would contend that the Special Court without appreciating the evidence on record in proper perspective, dismissed the L.G.C. Secondly, he would urge that the Special Court without taking into consideration the fact that the subject matter of O.S. No. 107 of 1968 is with reference to Plot No. 8 and the same has nothing to do with the property in question, erroneously observed that the application schedule property to the extent of Ac.2.01 guntas forms part of the subject matter of the suit in O.S. No.107 of 1968 and that the judgment in the said suit, would operate as res judicata. He would contend that the ﬁndings of the Special Court at para-38 of the judgment in L.G.C. No.39 of 1991 are mis-conceived. He, therefore, prayed that the impugned order be set aside and the writ petition be allowed. 17. On the other hand, learned Government Pleader appearing on behalf of the 2nd respondent-Mandal Revenue Oﬃcer, would contend that the present petitioner with a view to grab the Government land has been litigating by ﬁling various petitions; that she was never in possession of the property in question and therefore, the petition be dismissed. 18. Sri M.S.R. Subrahmanyam, learned counsel appearing on behalf of the 4th respondent would, on the other hand, support the impugned order and state that the impugned order does not require any interference at the hands of this Court. Learned counsel while relying on the judgment of a Full Bench of this Court in MOHD SIDDIQ. AII KHAN vs. SHAHSUN FINANCE LTD., & OTHERS([1]), would contend that unless the allegations made in the application satisfy and attract the ingredients of “land grabber” and “land grabbing” as provided for under Section 2(d) and (3) of the Act, mere repetition of words “land grabbing” would not be enough for taking cognizance of a case. In support of this contention he relied on para-106 of the said judgment which reads thus: “Taking possession of the land without any lawful entitlement thereto is the sine qua non to hold a person to be a land grabber. It may be noted, to make out a case that a person is a land grabber, the applicant must aver and prove both the ingredients- the factum as well as the intention. Unless a person unauthorisedly and without any lawful entitlement thereto enters or intrudes into a land forcibly or otherwise, he cannot be held to be a land grabber.” 19. Learned counsel, while relying on the judgment of the Supreme Court in Nazim Ali and others v. Anjuman Islamia, Chhatarpur and others([2]), would submit that since the suit in O.S. No. 107 of 1968 ﬁled by Respondent No.4 in respect of the application schedule property has been decided in its favour and the further appeals ﬁled thereagainst have ended in dismissal, the petitioner cannot ﬁle the L.G.C. in respect of the very same property and would contend that the decree and judgment in the said suit would operate as res judicata. 20. The 4th respondent also ﬁled a counter aﬃdavit before this Court, reiterating the very same contentions, which were urged in the L.G.C. 21. There is no dispute about the fact that the subject matter of this case is with respect to an extent of Acs. 2.01 guntas of land situated in Survey No.403/15, Old Survey No. 129 of Shaikpet Village. There is also no dispute about the fact that the application schedule land, which is situated in Plot No.10 correlate to T.S. No.4/1/1/C, Block D, Ward No.10. There is equally no dispute about the fact that when the petitioner tried to interfere with the possession of the 4th respondent, it ﬁled O.S. No. 107 of 1968 against the petitioner herein before the Additional Chief Judge, City Civil Court, Hyderabad for declaration of title and perpetual injunction and the said suit was decreed in favour of the 4th respondent; that an appeal, C.C.C.A No. 105 of 1975, preferred against the decree in the said judgment has also ended in dismissal; that an SLP preferred thereagainst in the Supreme Court, also ended in dismissal. 22. There is no dispute that in the suit (O.S.No.107 of 1968) ﬁled by the 4 th respondent herein, the petitioner was impleaded as defendant No.1. In the said suit, she was given an opportunity to adduce all the necessary evidence in support of her claim that Plot No.10 said to have been purchased by her from Syed Moinuddin Razvi has in fact been covered by Plot No.8 which was in possession of the 4th respondent. However, the evidence let in by her has not established her claim that the land covered by Plot No.8 is the land which she has purchased under registered sale deed dated 2.5.1963 and the land identiﬁed on her behalf at the time of inspection by the Commissioner was the same. 23. Before we refer to the ﬁndings recorded by the trial Court in the above suit, it is necessary to state certain facts on which the suit was laid by the 4th respondent. The claim of the 4th respondent was that land bearing S.No.403 (Old.S.No.129) situated at Shaikpet Tahsil Garb Hyderabad District, (now Banjara Hills) originally belonged to sarfekhas of HEH the Nizam of Hyderabad and the same was made over by him to the Jubilee Hills Municipality Committee for development of the said area. The Jubilee Hills Municipality Committee prepared a scheme for the development of the said land dividing the same into plots in 1355 Fasli as per development and allotted a distinct number to each of the plots. Plot Nos.18, 19 and 20 as per the development plan were allotted to one Sri Eknath Pershad, who paid the value of plot Nos.18 and 19. After the death of Eknath Pershad, his heirs and widow Smt. Lakshmi bai requested the 2nd defendant, namely, Shahid Ali Khan to pay the value of Plot No.20 on her name and obtain a receipt and she agreed to convey the said plot in the name of the 2nd defendant as per the agreement dated 1st Shahrewar 1358Fasli. Accordingly, 2nd defendant deposited Rs.1,900/- which was price of plot No.20,Jubilee Hills, Hyderabad in the sarfekhas treasury on 24.7.1948. Thereafter Lakshmi Bai executed a regular sale deed with a plan attached in respect of non-agricultural Plot No.20 admeasuring Ac.3.38gts. in favour of the 2nd defendant on 3.10.1948 and the same was recognized and accepted by the Municipal Corporation of Hyderabad as per letter N.685 dt.10.4.1950. Thereafter, the 2nd defendant applied