IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD. (Special Original Jurisdiction) WEDNESDAY, THE 27th DAY OF APRIL, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY WRIT PETITION No.14985 OF 2003 B e t w e e n: Sri Hansraj Gambhir. - - - Petitioner. A n d 1. The Special Court under the A.P. Land Grabbing (Prohibition) Act at Hyderabad at BRKR Complex, Tankbund Road, Hyderabad. 2. The Specoial Tribunal under the A.P. Land Grabbing (Prohibition) Act-cum- III Addl. Chief Judge, city Civil Court, Hyderabad. 3. Sri Devender Reddy. - - - Respondents. The court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY WRIT PETITION No.14985 OF 2003 ORDER:(Per Hon’ble Sri Justice G.Krishna Mohan Reddy) This petition is filed to issue a Writ, Order or Direction in the nature of Certiorari or otherwise to set aside order delivered in L.G.A. No.35 of 1999 on the file of the first respondent preferred against order passed in O.P. No.1140 of 1990 filed under Section 7 (A) of the A.P. Land Grabbing (Prohibition) Act, 1982 (For short, ‘the Act of 1982’) to declare the respondent as land grabber of 570 Sq. Yards out of Ac.3.32 guntas in Survey No.59, situated at Tirumalgiri village, Secunderabad Mandal, and evict the respondent from the property and to remove structures raised therein and also to punish him under Section 5 of the Act, 1982 and also to set aside order delivered in Review Petition i.e. I.A. No.60 of 2002 on the file of III Additional Chief Judge, City Civil Court, Hyderabad, dated 01-04-199 and 04-04-2002 respectively. 2. Whereas, the Writ Petitioner is the petitioner in the Original Petition and respondent in the Land Grabbing Appeal, the third respondent is the respondent in the Original Petition and Appellant in the Land Grabbing Appeal. For the sake of convenience the parties hereinafter will be referred as arrayed in the O.P. 3. The facts in brief are as follows : Ac.3-32 guntas of land in survey No.59 of Tirumalagiri village is the ancestral property of the petitioner. Originally, it was the property of the applicant’s grand father namely Jeevan Das which was inherited by Jawal Das, father of the petitioner who died in or about 1969. Thereafter, the applicant succeeded to and was in the possession and enjoyment of the total property. The respondent without any title or right over the property grabbed an extent of 570 sq.yards (out of the total extent of Ac.3-32 guntas in survey No.59 of Tirumalagiri village) in or about 1989 and has been proceeding with construction work therein also. In spite of demands by the applicants, the respondent did not vacate the property. Hence, the application was filed. 4. The respondent filed counter denying the material pleas taken in the petition and putting the applicant to establish the same strictly and specifically. Further, it is claimed in the counter as follows: The respondent has been in the possession and enjoyment of 607 Sq. Yards of site in survey No.57/2 at Tirumulgherry village having purchased it for a valid consideration under a registered sale deed dated 27-02-1989 bearing document No.762 of 1989 of Book-I, Volume No.845 noted at pages 327 to 334 in the office of Sub- Registrar, Marredpally, Secunderabad, from its absolute owners and the disputed land is not part of Ac.3-32 guntas of land in the survey No.59 of Tirumulgherry village. Originally the property in S.No.57/2 belonged to Mirza Yakoob Baig and Mr. Sharfuddin purchased Ac.2 and ½ guntas of land in the Survey No.57/2 under a registered sale deed dated 28-09-1962 bearing document No.2550 of 1962 noted at pages 439 and 440 in volume No.74, Book No.I in the office of Sub- Registrar, Hyderabad. Mohammed Sharfuddin died in the year 1965 and his son Mr. Mohd. Jahangir Pasha, divided the land into plots and sold the plots to several individuals during the years 1968 and 1969 and consequently many of the purchasers constructed houses and have been living therein. In fact one Mr. Marian Michael purchased plot No.1 admeasuring 607 Sq. Yards from Smt. Zainab Bee, W/o. late Mohammed Sharfuddin and Mohd. Jahangir Pasha, son of late Mohammed Sharfuddin through a registered sale deed dated 23-05- 1968 and after the death of Marian Michael the respondent purchased the property from his heirs and accordingly the respondent has been in possession and enjoyment of it as its absolute owner having constructed a building therein. Further, the respondent is not in the occupation of any land forming part of the survey No.59. Further, the District Collector, Hyderabad District, and the M.R.O. Secunderabad, claimed the land in Survey No.57/2 as Government land in O.S. No.3408 of 1983 on the file of the Court of XI Assistant Judge, City Civil Court, Secunderabad, filed by S.M. Michael which was decreed in his favour declaring that the land was not that of the Government. Ultimately he pleaded to dismiss the petition. 5. On the basis of the pleadings, the III Additional Chief Judge, City Civil Court, Hyderabad, framed the following issues for trial and disposal : 1. Whether the property described in Col. No.6 to 12 of the petition is the property of the petitioner? 2. If so, whether the respondent is not a land grabber in respect thereof? 3. Whether the petitioner is entitled to any compensation? 4. Whether the petitioner is entitled to any profits? 5. To what relief, if any is the petitioner entitled to? 6. The petitioner got himself examined as PW.1 and further got examined one P. Sai Baba as PW.2 and got marked EXs.A-1 to A-5. On behalf of the respondent, he got himself examined as RW.1 and also got examined Mohd. Jahangir Pasha as RW.2 and got marked Exs.B-1 to B-22. Further, relevant revenue records/documents were marked as Exs.C-1 to C-5 respectively. 7. Examining the material available on record it is observed by the III Additional Chief Judge, City Civil Court, Hyderabad, that the property situated in survey No.59 of Tirumalgherry village and Mandal belongs to the petitioner; the respondent grabbed the property; and the respondent is a land grabber of the property. A direction was issued to the respondent to vacate the property and if he fails to do so, the petitioner is entitled to claim compensation or profits from the respondent ultimately. 8. The trial Court placed reliance on the evidence of PW.2 who was appointed as Commissioner to inspect the disputed land and who got it measured and filed EXs.C-1 to C-5 the corresponding report, sketch and work memo, substituted copy of sethwar of Survey No.57/2 and village maps in survey Nos.57 and 59 of Tirumlgherry village and came to the conclusion that the property in dispute is situated in survey No.59 and the claim of the respondent is not tenable. 9. Aggrieved by the findings of the Tribunal, the respondent preferred the Appeal before the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad. The appellate Court observed that Exs.B-24 to B-31 sale deed copies (marked before the Special Court) cover the entire extent of Ac.3-32 guntas of land in survey No.59 and the same property was sold away by the G.P.A. of the petitioner and members of his family and hence it was not open to the petitioner to prosecute the application and the Tribunal failed to appreciate the matter properly and arrived at incorrect conclusions and hence the order passed by the Tribunal should be dismissed and accordingly dismissed it. Hence, aggrieved by the same, the present Writ Petition has been filed. 10. I.A. No.60 of 2002 in L.G.A. No.35 of 1999 was filed before the Special Court to review order dated 4.4.2002 made in the Appeal. 11. It is the contention of learned counsel for the petitioner Mr.Sunil Ganu that there is no evidence to show that the suit land is localized in survey No.57/2 of the Tirumalgherry village and a fresh report was filed by the Deputy Director, Central Survey, Hyderabad, examined as CW.1 marked as Ex.C-6 together with sketch plan which is to the effect that major extent of the application schedule land falls in survey No.59 and some part of it falls in survey No.57 and just on the basis of an agreement of sale of the property claimed by the petitioner it was erroneously observed by the Special Court that he sold away the entire property and had no claim over the property. It is further contended that Exs.B-24 to B-31 sale deeds in favour of various purchasers cover only an extent of 1000 Sq. yards equivalent to 8000 Sq. Meters totally but not Ac.3-32 gunts which is quite a larger extent and therefore the Special Court misconceived the evidence adduced and arrived at incorrect conclusions and the order passed by the Special Court requires to be set aside and the claim of the petitioner upheld. 12. On the other hand, it is the contention of learned counsel for the respondent Sri P.Venugopal that the Special Court properly considered the matter and there are no grounds to interfere. 13. The Special Court framed the following points for consideration: 1. Whether in view of the sales effected by the applicant- respondent herein and his family members of the entire property claimed by them in Survey No.59, this O.P. is maintainable? 2. Whether the respondent-appellant here prescribed title by adverse possession? 14. Therefore it is to be mainly examined as to whether : 1. Whether there is clear localization of the schedule property? 2. Whether sufficient evidence was placed to establish the title of the petitioner over the property? 3. Whether sufficient evidence was also placed to the effect that the respondent occupied the schedule property in survey No.59 of the village and accordingly he is to be declared as land grabber and he is to be evicted from the property and the property is to be delivered to the petitioner? 4. Whether the respondent acquired title to the property by adverse possession? 5. Whether the Special Court and the Tribunal properly examined the matter and arrived at correct conclusions? 15. Point Nos.1 to 3: In order to localize the property the report and plans of the surveyors appointed in that behalf are important. The record coupled with the observations made by the learned judge, Special Court, clearly disclose that there are two different sets of reports and sketches one set filed by PW.2 and the other set filed by CW.1, marked as Exs.C1 and C2 and Exs.C-6 to C-12 which provide different pictures respectively. Exs.C-1 and C-2 uphold the claim of the petitioner, whereas Exs.C-6 and C-12 provide that major extent of the application schedule land is in survey No.59 which clearly contradicts the findings given in Exs.C-1 and C-2. There should have been clarification of the discrepancy but it is not done so far. Therefore, at this stage it is difficult to accept any one of the two sets of the reports and sketches. If one of the two sets is accepted the other set goes away, which must be based upon sound reasoning which is not the case here. Further, unless there is identity of the property it is not possible to uphold either the claim of the petitioner or of the respondent or either to allow the petition or to dismiss the petition. Both the Courts below went wrong in deciding this factor. 16. With regard to the observations made by the Special Court that the petitioner along with his family members sold away his entire property under agreement of sale or Exs.B-24 to B-31 and as such they got no rights over the property and the petition is misconceived, emphatically, EXs.B-24 to B-31 cover only 1000 sq.yards of the site each which comes to 8000 meters of the site totally but the Special Court incorrectly came to the conclusion that those sale deeds cover the total extent of Ac.3-32 guntas of land in survey No.57/2 of the village while coming to the conclusion that the petitioner got no case which therefore is unsustainable, whereas as already observed without clear demarcation of the sites in dispute and without proper appreciation of the contents of Exs.B-24 to B-31 and other relevant factors, it is not possible to uphold either the claim of the petitioner or of the respondent. 17. Point No.4: With regards to the question of acquiring title over the property by adverse possession such a contingency does not arise because it is the categorical case of the respondent that he has nothing to do with the schedule property situated in survey No.57/2 of the village, and he only got absolute rights over 607 Square yards of site in survey No.59 of the village and it is not claimed by him that she acquired title to the schedule property by adverse possession. 18. For the reasons enumerated above, the matter is to be remanded to the enquiry Court for the purpose of resolving the controversies by taking necessary steps for the localization of the disputed items and ascertaining as to whether the respondent is in the illegal occupation of any part of the schedule property with reference to the agreement of sale and Exs.B-24 to B-31 and other relevant documents and pass necessary orders giving opportunity to both the parties to adduce necessary evidence. The case is accordingly remanded to the trial Court of the III Additional Chief Judge, City Civil Court, Hyderabad. The trial Court shall dispose of the matter independently based upon the evidence on record in the case. Accordingly, the matter is disposed of setting aside the order passed by the trial Court and the Special Court subject to the observations made above. There shall be no order as to costs. ____________________ GODA RAGHURAM, J. __________________________ G. KRISHNA MOHAN REDDY, J. DATE:27-04-2011. DA/Dsh.