IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY THE TWNETY SIXTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.8824 of 1999 Between: 1 Inaganti Rajyalakshmi, W/o.Venkateswara Rao, R/o.Radhakrishna Street, Arundalpeta, Narasaraopet, Guntur District. 2 Inaganti Bala Subrahmanyam, S/o.Venkateswara Rao, R/o.Radhakrishna Street, Arundalpeta, Narasaraopet, Guntur District. 3 Inaganti Nagaraju, S/o.Venkateswara Rao, R/o.Radhakrishna Street, Arundalpeta, Narasaraopet, Guntur District. 4 Inaganti Yesoda, S/o.Venkateswara Rao, R/o.Radhakrishna Street, Arundalpeta, Narasaraopet, Guntur District. 5 Inaganti Talapasai, S/o.Venkateswara Rao, R/o.Radhakrishna Street, Arundalpeta, Narasaraopet, Guntur District. ..... PETITIONERS AND 1 The Special Court under A.P.Land Grabbing (Prohibition) Act, Hyderabad. 2 The Special Tribunal-cum-District Judge, Guntur. 3 Lathika Yedukondalu, W/o.not known Badlamottu, Vinukonda (Tq) Guntur District. 4 Lathika Anjamma, W/o.not known Resident of near Mazid, Narasaraopet, Guntur District. 5 Nadyala Punnamma, W/o.Venkatakrishni Reddy, Resident of near Mazid, Narasaraopet, Guntur District. .....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 to issue a Writ or order or direction, more in the nature of Certiorari and quash the order passed by the 1st Respondent dt:16.9.1998 in L.G.A.No.57/97 after calling for the records and declare the Respondents 2 to 5 are land grabbers and pass such other order or orders in the circumstances of the case. Counsel for the Petitioner:MR.P.V.S.S.S.RAMA RAO Counsel for the Respondent No.: MRTIRUMALA RAJU . SESHAM RAJU The Court made the following: Form-NIC-OGS/WP{TML} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.8824 of 1999 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) Aggrieved by the order of the Special Court under A.P.Land Grabbing (Prohibition) Act (hereinafter referred to as “the Special Court”) in LGA.57/1997 dated 16.09.1998 in confirming the order of the Special Tribunal-cum-District Judge, Guntur in LGOP.148/89, dated 24.06.1997, this writ petition has been filed by the applicant in LGOP. 2. The petitioners herein filed LGOP.148/1989 on the file of the Special Tribunal-cum-District Judge, Guntur (hereinafter referred to as “the Tribunal”) against the respondents 3 to 5 herein and another, alleging that they are the owners of the petition schedule property and the respondents 3 to 5 herein dispossessed them wrongfully four years prior to filing of the LGOP, therefore, sought for eviction of the said respondents from the petition schedule property. The said LGOP was dismissed, which was confirmed by the Special Court in the said LGA.57/1997. 3. It is the contention of the petitioners that the respondents have encroached and grabbed the petition schedule land by raising huts, four years prior to the filing of the LGOP. The schedule property consists of two items. Item-1 is 4,588½ sq.ft. and Item-2 is 1650 sq.ft. situated within the specified boundaries. It is stated that Item-1 was said to have been purchased under Ex.A1 registered sale deed dated 04.12.1941 from one Javangula Audiseshu by Inaganti Ambamma, who is the mother-in-law of the 1st petitioner and paternal grand-mother of the petitioners 2 to 5 and Annapragada Venkata Subbamma jointly. It is stated that the joint purchaser, namely Annapragada Venkata Subbamma is the paternal-aunt of the petitioners 2 to 5, who died and her share was inherited by Sudharshanarao, who orally sold his share to the petitioners 2 to 5. It is stated that Inaganti Ambamma also died, and her share was said to have been inherited by her son Venkateswararao, who also died intestate on 13.12.1983, and therefore, the petitioners became entitled to item-1 of the petition schedule property. 4. In so far as item-2 of the petition schedule property is concerned, it is stated that it was purchased by Venkateswararao, husband of the 1st petitioner and father of petitioners 2 to 5, and in support of their claim, they placed reliance on Exs.A3 and A4, a judgment in O.S.663/1978 on the file of the District Munsif Court, Narasaraopet, which was filed seeking permanent injunction against the municipal authorities, who wanted to lay a road in a portion of the said property and which was decreed on 29.08.1980, and confirmed by the Principal Subordinate Judge, Narasaraopet in A.S.83/1981, dated 06.02.1987. 5. It is the case of the unofficial respondents that the property claimed by the petitioners which is in occupation of the respondents is different and distinct and the identity of the property is not established, and in fact, the mother of the respondents 3 and 4 herein is the owner of the said property and they have been continuously enjoying the said property and the title deed was destroyed in a fire accident that occurred in July, 1977 and they are in possession since long time and thus, perfected their title by adverse possession also. 6. The Tribunal considered the issue as to whether the said schedule property was grabbed by the unofficial respondents as alleged by the petitioners. The 5th petitioner herein was examined as PW 1 and marked Exs.A1 to A8. He deposed before the Tribunal that item-1 of the schedule property was purchased by his father’s mother in 1941 along with his father’s sister namely, Venkata Subbamma, and that Aannapragada Sudarshanarao is the son of said Venkata Subbamma, who is still alive. If the said Venkata Subbamma said to have been sold the said property to the petitioners 2 to 5 under the oral sale deed, no particulars, viz., date, year and month of the said oral sale deed have been furnished. The alleged oral sale has not been established. In fact, Sudarshanarao who is the son of the vendor, though alive, was not examined. As regards to the other half of the property of Item-1 is concerned, it is the case of the petitioners that the entire property was purchased jointly by their paternal grandmother and paternal-aunt. 7. In so far as the item-2 is concerned, they have placed reliance on a judgment in O.S.663/1978, which was filed against the municipal authorities objecting to lay a road and which was decreed. Except the same, no other title deed has been filed in support of their claim of ownership. The Tribunal held that the petitioners have failed to establish the identity of the property and also have failed to establish that the property in occupation of the unofficial respondents is the property acquired by them. In so far as the oral sale deed is concerned, the Tribunal held that the son of the alleged vendor was not examined and no particulars about the date, year and the month have been given and the unofficial respondents are not the parties to the suit filed against the municipal authorities, and there is no survey number and identity of the property, and thus, the petitioners have miserably failed to establish the identity of the property, and also failed to establish that the property in occupation of the unofficial respondents is their property. 8. On the other hand, on behalf of the unofficial respondents two of them were examined and they have filed documents in proof of their possession, such as municipal taxes, house tax receipts and the municipal plan relating to Ward No.1, Block No.28 of T.S.No.1796 etc. They have also stated that the hut No.7676 was assessed to the municipal tax and the same stands in the name of RW 1 in the municipal records and as there was a fire accident, the Station Fire Officer, Narasaraopet also issued a certificate about the fire accident that occurred on 27.01.1977 and Exs.B3 to B31 and Exs.B33 to B59 are the house tax receipts. The petitioners failed to discharge a prima facie case about their title and possession in respect of the property in occupation of the unofficial respondents. But, on the other hand, the unofficial respondents filed municipal tax receipts and the fire accident certificate that occurred on 27.01.1977 to establish that due to fire accident, the thatched shed was completely burnt and relevant documents were also destroyed. Admittedly, the respondents were in possession, and the alleged dispossession was not at all established. Thus, the Tribunal held that the petitioners have failed to establish their title and their entitlement to the property, and even assuming for the sake of arguments that they have uany title, the same was extinguished by virtue of Sec.27 of the Limitation Act, as the respondents 3 and 4 have acquired the title by adverse possession. 9. On appeal, the Special Court considered the following points: i) Whether the petitioners are the owners of the petition schedule property? ii) Whether the respondents prescribed title by adverse possession? With regard to first point is concerned, the Special Court held that the petitioners herein have not established even the alleged oral sale deed and therefore, it cannot be said that the petitioners have got title to item-1 of the schedule property. Apart from that, the identity of the property is not established and the filing of the tax receipt issued by the municipality does not establish the identity of the property, and Exs.A1 and A2 are not tallying with the boundaries of the petition schedule property. With regard to possession of the property, the Special Court held that the petitioners have failed to prove their possession over the petition schedule property at any point of time. Thus, the first point was held against the appellants herein. 10. With regard to the second point, the Special Court found that except giving suggestions, there was no serious cross-examination to the witness on behalf of the respondents, especially to that of RW 2, the Fire Officer who marked Ex.B2-certificate, dated 27.01.1977. The Special Court, therefore, found that there are no reasons to disbelieve Ex.X-1-report and X2-General Diary and the evidence of RW 2, the official witness and on the basis of Exs.B3 to B31 and B33 to B59, it came to the conclusion that the respondents proved their possession for more than statutory period and accordingly concurred with the findings of the Special Tribunal. 11. We have heard the learned counsel for the petitioners who has questioned the aforesaid two orders by contending that the findings of the Special Tribunal as well as Special Court are perverse and he contends that the registered sale deeds produced by the petitioners duly established their title to LG OP schedule property and consequently in the absence of any documentary evidence of source of title being produced by the respondents, the Special Tribunal as well as the Special Court ought not to have rejected the LG OP filed by the petitioners. The learned counsel also contends that to remove any doubt in the mind of the Tribunal about the identity of the property, the petitioners have made an application being IA No.1365 of 1998 under Order 26, Rule 9 of CPC for appointment of commissioner to localize the petition schedule property with reference to the sale deeds Exs.A1 and A2, but the same was erroneously rejected by the Special Court. 12. We have considered the aforesaid submissions in the light of the provisions of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982. The petitioners who are applicants in LG OP have to prima facie establish their title to the property in question. The proof of prima facie title by the applicants being a sine qua non, in the absence of same the applicants cannot complain that LG Op has been dismissed. A look at the findings of the Special Tribunal and the Special Court clearly show that the petitioners filed the registered sale deeds Exs.A1 and A2 and claimed the item No.1 of the LG OP schedule property on the ground that it was purchased by father’s mother of petitioner Nos.2 to 5 in 1941 along with their father’s sister-Venkata Subbamma and it was further alleged that the petitioners purchased the share of their father’s sister orally. The said oral sale as set up by the petitioners was rightly disbelieved and rejected by the Special Tribunal as well as Special Court. Similarly, to the extent of other half of the item No.1 of LG OP schedule, though the petitioners relied upon Ex.A2, registered sale deed dated 06.12.1962, the petitioners were unable to localize the same with reference to LG OP schedule property. In cross examination of PW 1 it was elicited that he did not know the total extent of survey number and he did not get the land surveyed before filing the case. The cross examination of PW 1, therefore, was sufficient to reject the case of the petitioners with reference to the LG OP schedule property. In the result, therefore,, both the Special Tribunal and Special Court came to the conclusion that the petitioners have failed to establish prima facie title with regard to the LG OP schedule property. The learned counsel for the petitioners is unable to satisfy us on the said first aspect and as such the concurrent findings of both the Special Tribunal and Special Court on the said point cannot be interfered with under certiorari jurisdiction of this Court. 13. So far as the second aspect is concerned, it is noteworthy to mention here that the contesting respondents had specifically stated in their counter filed before the Special Tribunal that the petitioners had no title or possession at any time and the same, even if existed, became extinguished long back and beyond the prescribed period of limitation and the rights have become vested in the respondents 2 and 3 since long back adversely and the respondents 2 and 3 have perfected their title by adverse possession. Based on the above pleadings, the parties went for trial and led evidence. The respondents have examined RWs 1 to 3 and marked Exs.B1 to B59 which compromise extracts of property tax register, as well as receipts showing that they have been continuously paying the property tax for several years beyond the statutory period. Most importantly the respondents have examined RW 2 who is Fire Officer and who marked Exs.X1-Fire call report and X2- General Diary maintained in usual course by the fire department. The Special Tribunal, therefore, framed a specific issue being issue No.3 as to whether the petition is barred by limitation. While considering the said issue, the Special Tribunal has also noticed the decision of a Division Bench of this Court in K.V.Sreenivasarao Vs. The Special Court under A.P.Land Grabbing (Prohibition) Act, 1982[1] holding that the aspect of adverse possession can be gone into by the Tribunal or the Special Court while deciding the OP filed under the A.P.Land Grabbing (Prohibition) Act, 1982 and based upon the same, the Special Tribunal found on evidence that the respondents have been in possession of the LG OP schedule property for over the statutory period long before filing of the LG OP by the petitioners in 1989, especially in view of the documentary evidence of Ex.X-1 fire report dated 27.01.1977 and Ex.X- 2-General Dairy coupled with evidence of RW 2. The said findings of the Special Tribunal on issue No.3 holding that the title of the petitioners was extinguished and consequently vested in the respondents 2 and 3 by adverse possession was rightly affirmed by the Special Court also, as the petitioners were unable to substantiate that the said finding is not justified on facts. We also feel that the petitioners have not been able to show possession within the prescriptive period and on the contrary the respondents have established their long standing possession over the statutory period and the rights exercised by them as owners openly, the findings of the Special Tribunal and the Special Court on the point with respect to adverse possession, therefore, has been rightly decided by both the Special Tribunal and Special Court in favour of the respondents on the basis of evidence on record, which does not warrant any interference under Article 226 of the Constitution of India. The point deserves to be answered in favour of the respondents. 14. So far as the last contention of the learned counsel for the petitioners is concerned, it is to be noted that while the LG OP was pending before the Special Tribunal from 1989 to 1997 the petitioners did not take any steps to get survey and localization of the LG OP schedule property and they had made an application for the aforesaid purpose only in 1998 after the appeal was presented before the Special Court. We, therefore, do not find any justification in the contention of the petitioners that they have not been given any opportunity for localizing the property, when the said application itself was highly belated. 15. In view of the above, therefore, the writ petition has no merits and is liable to be dismissed and it is accordingly dismissed. No order as to costs. _____________________ V.ESWARAIAH,J _______________________________ VILAS V. AFZULPURKAR,J Dated:26.02.2009 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Special Court under A.P.Land Grabbing (Prohibition) Act, Hyderabad. 2 The Special Tribunal-cum-District Judge, Guntur. 3 2. 2CCs to 4. 2CD copies [1] 1996(4) ALT 844