IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 23825 of 2007 Between: 1 T.Bikshapathy S/o Isthari 2 T.Dasharath S/o.late Jangaiah 3 Smt.T.Eshwaramma W/o.late T.Swamy All are R/o. H.No.3-1-724/2, Harrajpenta, Nimboliadda, Hyderabad. ..... PETITIONER(S) AND 1 The Special Court, under AP Land Grabbing (Prohibition) Act, 1982 Hyderabad, rep. by its Registrar. 2 State of AP rep. by Mandal Revenue Officer, Himayathnagar Mandal, Hyderabad District. .....RESPONDENT(S) 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 appropriate writ or order or direction, one in the nature of Writ of Mandamus: i) declaring the action of the Respondent-1 in dismissing IA No.1201/2006 in LGC No.59/2002 dated 29.3.2007 as arbitrary, illegal, without jurisdiction, and the same may be set aside; ii) IA No.1201/2006 in LGC No.59/2002 filed by the Petitioners on the file of Respondent-1 may be allowed; iii) costs be awarded to the petitioners; and pass such other order or orders appropriate in the circumstances. Counsel for the Petitioners: MR.B.MAHENDER REDDY Counsel for the Respondents: GP FOR REVENUE The Court made the following : ORDER: (per THE HON’BLE SRI JUSTICE V.ESWARAIAH) This writ petition under Article 226 of the Constitution of India has been filed seeking to issue a writ of mandamus to declare the order, dated 29-03-2007, passed by the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982 (for brevity “the Act”), in I.A.No.1201 of 2006, in L.G.C.No.59 of 2002, as arbitrary and illegal and prayed to allow the said I.A.No.1201 of 2006. 2. I.A.1201 of 2006 in L.G.C.No.59 of 2002 was filed under Section 151 C.P.C. for dismissal of the L.G.C.No.59 of 2002, as not maintainable and barred by Res judicata. 3. L.G.C.No.59 of 2002 was filed by the applicant-State to declare the writ petitioners as land grabbers. The respondents in the said L.G.C. i.e., writ petitioners filed I.A. No.1201 of 2006 contending that the application schedule property is the private property and forms part of 4037/B (old) renumbered as H.No.657 and 5417 correlated to present Municipal Door No.3/1/724/2 and the total extent is Ac.3.20 guntas. The property was originally owned by Ataur Rahman to whom the Paigah Government granted the said land for supplying jewelleries. The title and ownership of the said Ataur Rahman is borne out by the survey plan of 1912 and also the Municipal records. The petitioners’ grand father, Tunga Sayanna was used to work under the said Ataur Rahman. During the life time of T.Sayanna, he cultivated the said land and after his demise, his son T.Isthari, who is the father of the petitioners herein continued to cultivate the said land. Ataur Rahman was succeeded by his son Faizur Rahman in lieu of the services rendered by the Isthari and his father Sayanna. The said Faizur Rahman granted the said land by way of oral inam on 1st Azur 1350 Fasli. The said inam was confirmed by Faizur Rahman in a document, dated 15-06-1956. Since then, the father of the writ petitioners and after his demise, the writ petitioners are in occupation and possession of the said property as owners. 4. While so, the Government tried to allot the said land claiming that it belongs to the Government and aggrieved by the said action, the writ petitioners filed a suit in O.S.No.561 of 1984, on the file of the II Additional City Civil Court, Hyderabad, against the State and the said suit was decreed on 22-03-1990. Questioning the said decree, State filed A.S.No.177 of 1996 before the II Additional Chief Judge, City Civil Court, Hyderabad and the same was dismissed, vide Judgment, dated 06-09-2000, confirming the judgment and decree of the lower Court. Against which, State preferred Second Appeal in S.A.No.964 of 2002 before this Court, which was also dismissed by judgment, dated 30-12-2003 confirming the judgment of the lower Court. 5. In view of the findings given in the said injunction suit regarding possession of the writ petitioners, it cannot be said that the writ petitioners are in unlawful possession, much less the land grabbers. Therefore, the State cannot term the writ petitioners as land grabbers within the meaning of the Act. Therefore, the said L.G.C.No.59 of 2002 is not maintainable and the Special Court has no jurisdiction to entertain and try the said application. 6. A counter has been filed by the State contending that the application schedule land is a Government land and the writ petitioners under the guise of forged and fabricated documents, are trying to lay a claim over the same. The Government has always been exercising its right over the application schedule land and the same is evident that the part of T.S.No.4, Block ‘F’, Ward No.184, in which the application schedule land falls, the Government allotted the land to the Social Welfare Department for construction of SC hostel and the same is in existence even today. The averments that originally owner of the land was one Ataur Rahman, to whom the land was granted by Paigah Government, that the grand father of the writ petitioners used to cultivate the same and after his demise, his son continued to cultivate the same, that after the original Pattadar Ataur Rahman died, his son Faizur Rahman has been granted the land by way of inam and that the petitioners are in occupation and possession over the said lands are all denied. It is stated that the writ petitioners with a view to knock away the Government property, have concocted story in the present petition, which is devoid of merits more so, after the trial has been commenced. 7. It is further stated that the suit filed by the writ petitioners for bare injunction was decreed and the same was confirmed in the first and second appeals. In the suit filed for injunction, there was no issue regarding title to the property and there was no finding either by the Civil Court or by the Appellate Courts that the petitioners are in lawful possession of the property. It is well-established principle of law that in a suit for bare injunction, the question of title to property will not be gone into and only the aspects such as prima facie possession, balance of convenience and irreparable loss will be gone into. If any findings are given regarding the title to the property, the same are only incidental and the findings given regarding the title will not operate as res judicata in the subsequent suit filed for declaration of title and as such, the contention of the writ petitioners that the Civil Court gave a finding regarding the title and lawful possession and the same was confirmed by the appellate Courts is untenable. However, neither the Civil Court nor Appellate Court given any finding that the writ petitioners are in lawful possession of the application schedule land. It is further stated that whether the petitioners are the land grabbers or not is yet to be decided in the pending L.G.C. and the petitioners with a view to avoid the trial, filed the present application and hence, the same is liable to be dismissed. 8. The Special Court dismissed the said application, by order, dated 29-03-2007. Aggrieved thereby, the present writ petition has been filed. 9. Sri N.Ramakrishna Reddy, learned senior counsel appearing for the writ petitioners submits that the judgment of the Civil Court has been confirmed by the Appellate Court and the High Court, that there is a finding recorded by the civil Court that the writ petitioners are found in continuous and uninterrupted possession of the property, that the writ petitioners are supported by number of documents showing that they have acquired title over the said property and therefore, there is no need to file a suit for declaration of title as the findings recorded in the suit for injunction are also operates as Res judicata in a suit to be filed for declaration of title and hence, he prays to allow the writ petition. 10. On the other hand, learned Special Government Pleader, appearing for the respondents submits that neither the original Court nor the Appellate Court or the High Court recorded any finding with regard to lawful possession of the property in favour of the writ petitioners, but only a finding was recorded that the property was found in possession of the plaintiff and their ancestors since long time, that therefore, it cannot be said that alleged lawful title was decided in favour of the writ petitioners and hence, he prays to dismiss the writ petition. 11. It may not be just and proper for us to decide whether there was any issue framed in the suit with regard to the title of the property in favour of the writ petitioners and whether the civil Court earlier decided the issue with regard to lawful possession, in favour of the writ petitioners. A perusal of the impugned order goes to show that after filing L.G.C. in the year 2002, the writ petitioners filed a memo, dated 06-04-2004, raising an objection with regard to maintainability of L.G.C. and on the said memo, the Special Court passed an order, dated 09-04-2004, framing the following issue for consideration: “Whether the judgment and decree in O.S.No.561 of 1984 as confirmed in A.S.No.177 of 1996 and in S.A.No.964 of 2002 on the file of the High Court, operates as Res Judicata” The said additional issue framed was sought to be resolved as a preliminary issue, but the same was not at all decided as a preliminary issue. After 09-04-2004, though the Special Court wanted to decide the said issue, but by order, dated 30-07-2004, re-opened the L.G.C. and posted on 03-08-2004 for further hearing. On 03-08-2004, it was again adjourned to 09-08-2004. On 09-08-2004 it was suggested to commence the trial itself in order to decide the merits of the case and as a final disposal and accordingly, the Government Pleader was directed to file proof affidavit of the applicant-State by the next day of hearing i.e., 19-08-2004 and accordingly, posted to 19- 08-2004. It is stated that the order, dated 09-04-2004, has not at all questioned and it has become final. Thereafter, the applicant- State filed chief affidavit evidence of P.W.1 with a view to dispose of the matter and thereafter, it was coming up for cross- examination. 12. It is stated that cross-examination was not made. Though it was posted on 30-08-2004, it was adjourned from time to time and after lapse of two years, the writ petitioners came up with the present application on 20-11-2006 to decide the said issue as a preliminary issue. The said application was dismissed by the impugned order. Therefore, we are of the opinion that as the order, dated 09-08-2004, of the Special Court suggesting that the trial has to be commenced in order to decide the merits of the case and as a final disposal of all the issues and the said order has become final, the application filed by the writ petitioners is not maintainable. Hence, the writ petition is liable to be dismissed. 13. Accordingly, the Writ Petition is dismissed. However, since the L.G.C. is of the year 2002, the same may be disposed of uninfluenced by any of the observations made either by the Land Grabbing Court in the impugned order or by us in this writ petition. There shall be no order as to costs. -------------------------- V.ESWARAIAH, J ------------------------ K.C.BHANU, J DATED: 23-12-2008 Hsd