THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY WRIT PETITION NO. 1746 of 2004 DT. 19. 09.2011 Between: Qamar Sultana and ors … Petitioners And Md Abdul Rashid Siddiqui … Respondent Counsel for the Petitioners: Sri V.Ravinder Rao Counsel for respondent: The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH THE HON’BLE MR JUSTICE G KRISHNA MOHAN REDDY WRIT PETITION NO. 1746 of 2004 JUDGMENT: (Per Sri Justice V Eswaraiah) This writ petition is filed seeking writ of Certiorari to set aside judgment dated 26.9.2003 in L.G.A.No.13 of 2001 on the file of the Special Court under the A.P. Land Grabbing (Prohibition) Act, Hyderabad (for short the “Special Court”) confirming order dated 1.3.2001 in L.G.O.P.No.2 of 1992 on the file of the Chairman, Special Tribunal under the Land Grabbing (Prohibition) Act- cum-District Judge, Adilabad (for short the “Tribunal”). 2. The writ petitioners are the petitioners in the petition and appellant in the appeal. For convenience sake, we refer the parties as arrayed in the petition. 3. One Md.Abdul Samad filed L.G.O.P.No.2 of 1992 on the file of the “Tribunal”. He died during the pendency of L.G.O.P. and the writ petitioners, being his legal heirs, were brought on record. Md.Abdul Samad originally filed O.S.No.17 of 1983 on the file of the Court of District Munsif, Nirmal seeking declaration of title and injunction from interfering with 100 sq.yards which is a part and parcel of 4500 sq yards of land purchased by him in old Sy.No.1675/New Sy.No.1901 situated at Nirmal Bus Stand, Nirmal. Subsequently, as per the orders of the “Tribunal” dated 20.12.1991 in O.P. No. 69 of 1990 the said suit was transferred and renumbered as L.G.O.P. No. 2 of 1992. 4. It is claimed in the suit as follows: He is the absolute owner and possessor of the suit schedule land admeasuring 500 sq.yards as shown in red colour in the sketch map enclosed to the plaint being part of 4500 sq yards of land from one Sayeed Musthafa Hussaini Khadiri for a consideration of Rs.5000/- (Rupees five thousand only) vide registered document No.34 of 1964 dated 7.2.1964 and since then he has been in possession and enjoyment of the property, with the boundaries as under; North : Land of Abdul Samad/petitioner and shops of Traimbak South : Darga Budlesha East : Malgies of Rashid Ahmed Siddqui/Respondent West : National Highway No.7 5. Further, the respondent without any right whatsoever over the land and on the instigation of his opponents, is bent upon to harass him. The respondent on 26.2.1983 picked up a quarrel with him and threatened to dispossess him from the land but on the advice of mediators the defendant left the spot. Further thereby, apprehending his dispossession, he filed the suit for declaration of title and for perpetual injunction which was later amended into a suit for recovery of possession. 6. Then it is alleged that the respondent has unlawfully grabbed 500 sq.yards of land in the year 1984 on the false plea that Municipal Council, Nirmal assigned the said extent of land to him. It is stated that the Municipality is not the owner of the said land and it has no right to assign it. The permission granted by the Municipality is not relating to the land grabbed by the respondent and further the Municipality has later revoked the permission on 11.10.1984 on the ground that the respondent deviated from sanctioned plan. 7. Thus, it is the case of the petitioner that the Municipality, Nirmal is not the owner of the grabbed land. That the original petitioner/Abdul Samad filed a suit in O.S. No. 49 of 1968 on the file of the District Munsif, Nirmal for recovery of possession of the suit property and mesne profits, which was dismissed by order dated 24.12.1969 and questioning the said order, he preferred an appeal in A.S. No. 42 of 1971 on the file of the District Judge, Adilabad and the same was allowed by order dated 16.1.1974 holding that the Municipal Council, Nirmal is not the owner of the land purchased by the petitioner under the registered sale deed dated 7.2.1964, as such, the Municipality cannot assign the grabbed land to the respondent and the respondent is a land grabber. Further, the respondent after grabbing the land constructed 5 shops and 3 sheds and is getting rent of Rs.3,600/- per month for those 5 shops and Rs.475/- per three sheds per month. The petitioner has relied on the original sale deed dated 7.2.1964 and the judgment of the District Judge, Adilabad in A.S. No. 42 of 1971 and notice issued by the Municipality, Nirmal and other documents filed in O.S.No. 17 of 1983 on the file of the District Munsif, Nirmal, which was later transferred to the “Tribunal”. It is also stated that the old Survey No. 1675 has been excluded from the village account and included in the village site, and claimed that the petitioner is entitled to the relief of eviction of the respondent by dismantling the malgies and sheds in the grabbed land and also claimed compensation of Rs.4075/- per month from October, 1984 till the eviction of the respondent from the grabbed land, for the illegal possession of the property. 8. A counter affidavit was filed by the respondent accepting the contents of column Nos. 1 to 3, 5 to 8 and 13 of the application. However, he denied the averment of the petitioner that the land in possession of the respondent was formarly agricultural land and contended that it was formerly a Khandaq. He also denied the contention of the petitioner that the land in possession of the respondent is part of Old Survey No.1675 and stated that the extent given by the petitioner is imaginary. He stated that the boundaries mentioned for the property by the petitioner are imaginary and they are not correct and that the actual boundaries of the property are as under; North : Khandaq South : Khandaq East : Malgies of respondent constructed by his father long back. West : N.H. No. 7 from Hyderabad to Nagpur. 9. The petitioner submits that, there is no serious dispute with regard to the boundaries, inasmuch as, the boundaries on East and West are tallying and the dispute is with regard to the South and North sides i.e., the petitioner claims Darga Budlesha and his land are there on the North and South and the respondent claims that on North and South the Khandaq is there respectively. 10. As regards the allegation that the respondent has constructed 3 mulgies and 5 sheds, it is stated that the respondent being the absolute owner and possessor, has constructed 5 mulgies on the land in his possession after taking permission from the Municipality, Nirmal and that the temporary sheds exists since the time of his father/Md.Abdul Samad. The contention of the petitioner that he has purchased an extent of 4500 sq yards in Survey No.1675 of Nirmal village and that out of the same 500 sq yards said to have been grabbed by the respondent in the year 1984 and that the Municipality has no right to assign the said land and that the Municipality is not the owner of the said land in possession of the respondent and that the Municipality revoked the permission on 11.10.1984 were denied. It the case of the respondent that he is the absolute owner and possessor of the O.P. schedule land and the said land was originally Khandaq land belonging to Municipality, Nirmal and the Municipality by its Resolution dated 22.4.1958 assigned the same to the father of the respondent viz., Abdul Samad son of Shaik Hyder on payment of Rs.97/- at the rate of 4 Annas per sq.yard., and the said land is in possession of the respondent which was allotted to the father of the respondent through assignment deed dated 6.5.1958 by the then President, Municipality, Nirmal along with map showing the exact site and location. That the land allotted to the respondent’s father by the Municipality is 91’ X 30’ (feet). That through the said deed the Municipality, Nirmal has also allotted a triangular piece of land admeasuring 30’ X 30’/2 and thus, the total area allotted to the respondent’s father is 388 sq yards, on which the respondent’s father erected fencing by wooden poles. That since the date of assignment the father of the respondent and after his death, the respondent is in continuous, peaceful and open possession. That the respondent’s father, during his life time, obtained permission from the Municipality for the construction of compound wall and for digging two wells over the said land on 12.1.1959. That adjoining the said assigned land on the Eastern side the respondent’s father was having his own land admeasuring 127 X 10 feet and permission was given for the construction of compound wall over the assigned land including his own land. That father of the respondent has constructed the basement and dug two wells in the said land and in the year 1965 the Municipality, Nirmal has accorded permission to the respondent for the construction of kitchen and for repairing walls on the existing foundation. That in the year 1966 the Municipality granted permission to the respondent for the construction and alteration of the old building. 11. The contention of the petitioner that he is the owner of land in Survey No. 1675 (Old) which corresponds to new Survey No. 1901 is denied and it is stated that the petitioner was never in possession and that respondent is in the possession of the property. That the land in possession of the respondent is neither the part and parcel of the land in Survey No. 1675(Old) nor it is part of New Survey No. 1901. That the sale deed referred by the petitioner does not show the Survey number or the extent of the land alleged to have been purchased by him. The petitioner for the first time stated that he has purchased 4500 sq yards of land which has not been mentioned in the plaint. The total land in Survey No. 1675 Old is a Wakf property and the same is far away from the land in possession of the respondent and the same was published in the Gazette. 12. Thus, it is the case of the respondent that the Municipality being the owner of the said land, assigned the same to him and that the respondent is not a party to the proceedings in A.S. No. 42 of 1971 and the land in question was not subject matter of A.S. No. 42 of 1971 which was marked as EX.A.13. It is also stated that the judgment and decree passed in A.S.No. 42 of 1971 are not binding on the respondent and that the same was fraudulently obtained. That the petitioner has to file co-relating statement to establish that Survey No. 1675 (Old) is corresponding to its New Number 1901. Therefore, it is contended that the petitioner is not entitled for any relief as claimed against the respondent and the L.G.O.P. is without any merits and the same is liable to be dismissed. 13. On behalf of the petitioners, the second petitioner herein was examined as P.W.1 and also examined four other witnesses as P.W.2 to P.W.5 and documents in Ex.A.1 to A.52 were marked. On behalf of the respondent, R.W.1 /Rasheed Ahmed Siddiqui was examined and Ex.B.1 to Ex.B.21 were marked. Ex.C.1 to Ex.C.4 were marked at the instance of the Court. On the consideration of the matter, the “Tribunal”, by its order dated 21.3.2001 dismissed the L.G.O.P., holding that the petitioner has proved that he is the owner of some land in Survey No. 1675 Old, but he failed to prove that he is the owner of the suit land; that the Municipality, Nirmal assigned the suit land to the father of the respondent; that the disputed malgies and sheds are in the land allotted to the respondent’s father by the municipality; that the respondent has got lawful entitlement over the suit property; that the petitioner has failed to prove that the respondent has grabbed the suit land and there is no question of there being any burden on the respondent to prove that he has not grabbed the land in view of failure of the petitioner to prove that he was the owner of the land. 14. Being aggrieved by the said order dated 21.3.2001, the petitioners herein carried the matter in appeal to the “Special Court” in L.G.A. No. 13 of 2001. The “Special Court” on reconsideration of the matter, by its judgment dated 26.9.2003 dismissed the appeal, confirming the order of the “Tribunal” in L.G.O.P.No.2 of 1992 dated 21.3.2001 and holding that the petitioners/appellants failed to prove their title to the application schedule land and also failed to prove that the respondent grabbed the land and therefore they are not entitled to any relief. Hence, the petitioners filed the present writ petition. 15. P.W. 1 was examined in Chief on 7.11.1988 and 21.11.1988 and cross examined on 28.3.1989, 25.9.1989, 10.6.1994, 7.9.1994, 18.6.1996, 28.6.1996 13.8.1996 and further examined on 29.7.1999 and marked Exhibits A.1 to A.52. He confirmed the petition averments and contents of the said exhibits. 16. P.W.2 /Syed Kasim resident of Nirmal stated to have been acquainted with the disputed property, narrated about the boundaries , location and encroachment of the said property by the respondent in the year 1983 and construction of mulgies and sheds. P.W.3 /M.A.Raheem in his evidence stated that he is doing transport business at a distance of 50 yards from the disputed land and narrated about the identification of the suit property. P.W.4/Rasool Khan in his evidence stated that he know about the sale transaction under Ex.A.1. P.W.5/N.Pratap Reddy, Advocate Commissioner who was appointed at the instance of the respondent for local inspection of the scheduled land, filed Ex.A-46 Report and rough sketch prepared by him under Ex.A.47. He stated that he was able to identify Ex.A.1 and that the width of the National Highway No.7 on the west of the suit land is 150 feet. 17. The respondent examined himself as R.W.1 and reiterated what has been stated in his counter affidavit. He stated that in the year 1958 the Municipality, Nirmal assigned land admeasuring 388 sq yards to his father, which is situated towards East of the National Highway No.7 and that his father purchased the land from the Municipality, Nirmal for Rs.97 and that to the East of the said land his father owns another piece of land. That his father constructed a building comprising 3 mulgies on the land which is towards East to the disputed land. That later the said 3 mulgies were converted into 9 portions. That the petitioners filed a suit in O.S. No. 17 of 1993 on the file of the District Munsif Court, Nirmal seeking temporary injunction. That he is not a party to the suit between Linga Reddy and the petitioner. That the suit land is not situated in Survey No. 1675 and the Survey No. 1675 is a Wakf property. That there was a family partition and the copy of the registration extract is marked as Ex.A.34 dated 16.10.1960 and the portions marked by the witness in Ex.A.34 are marked as Ex.A.34/A and Ex.A.34/B and the entire assigned land fell to his share exclusively. The assigned land is behind the old mulgies measuring 91’ plus 36’ X 30’/2 which is mentioned in Ex.B.2 map dated 6.5.1958 and the total extent is 388 sq.yards. He filed a suit in O.S. No. 16 of 1994. That the petitioners are in possession of the said land since 1975. He denied the suggestion that he did not get any injunction from the District Munsif Court and that on the said land, the petitioner has constructed a mulgi. That he does not know whether the bye-pass road passes through Old Survey No. 1675, which was later merged in Municipality and Western side is Survey No. 1901. That 5 mulgies were leased out to Gayatri, Vijayalaxmi, Shalimar, Gulam Ghouse and a Fertilizer shop and the rent per shop ranges from Rs.400/- to Rs.600/- per month. The suggestion that each of the said shops fetches Rs.1200/- per month rent was denied. That all the 5 shops are abutting and facing the National Highway and that he does not know whether Triambak purchased the site from the petitioner. 18. Sri V.Ravinder Rao, learned counsel for petitioners submits that the “Tribunal”, recorded certain conflicting findings and failed to appreciate the evidence available on record. It is submitted that, though Ex.A.1 (registered sale deed dated 7.2.964) does not contain any Survey number and the extent, the boundaries and the description of the property were clearly narrated therein stating that the vendor of the petitioner is the owner, possessor and hereditary of the land earmarked for the construction of houses situated at Kasba, Bus Stand, Nirmal which is situated on the Eastern side of the bye-pass road Nagpur and bounded by the boundaries on the Eastern side Mulgies belonging to Abdul Samad Sahab/father of the respondent and of Aziz Ahmed Saheb and others, Western side bye pass road Nagpur, on the Northern side-Grave yard and on the South- Vacant land belonging to Darga Budlesha and bye-pass road as per the plan Ex.A.2 enclosed and shown in Green colour. It is further stated that the said land was sold for a sum of Rs.5,000/- and handed over the vacant possession. It is further stated in Ex.A.1 that part of the aforesaid property purchased at the North-Eastern side and South-Eastern side a little plot of land over which the house and property belonging to Sri Ganga Reddy and Sri Abdul Rasheed/respondent has been under dispute on account of unauthorised possession being exercised.’ 19. It is stated that as per Ex.A.1 read with site plan attached to the sale deed in Ex.A.2, C.C. of Tounch Plot of Survey No. 1675 of Nirmal i.e., Ex.A.3 dated 28.12.1978, C.C. of Tounch map of Survey No. 1901 i.e., Ex.A.4 relating to 1962 coupled with oral evidence, clinchingly establishes that the petitioners purchased the extent of 4500 sq yards, which was arrived as per the calculations of the scale mentioned in the plan situated in Old Survey No. 1675 and as per Ex.A11/C.C. of Wasool Baqhi of 1956, Survey number 1675 Old became new Survey No. 1901 and the claim of the Municipality and its right to assign the land was negatived by the learned District Judge, Adilabad in its judgment in A.S. No. 42 of 1971 which is marked as Ex.A.13 and though there is no dispute with regard to the right and title of the petitioner over the property derived under Ex.A.1 and Survey number 1675 became part of the village and in fact the Municipality got no right whatsoever to assign part of the said land and in fact the Municipality vide its notice issued in Ex.A.16 dated 31.5.1983 rejected permission for making construction by the respondent at the instance of the petitioners alone and the learned “Tribunal” and the “Special Court”, failed to appreciate the documentary evidence. It is stated that in fact, part of the land in Survey No. 1675 was acquired for widening road as is evident from the award of the Land Acquisition Officer in Ex.A.39 dated 5.1.1956. It is stated that an extent of Ac.1.20 from Survey Number 1675 Old was acquired along with other land totalling to Ac.17.19 guntas as per Ex.A.39 award and therefore part of the acquisition of Ac.1.20 from out of Survey number 1675 is not in dispute and that the compensation was also paid to the petitioners as per the directions of this Court in W.P. 15077 of 1989 dated 4.12.1995 /Ex.A-42 . In fact, the respondent has filed O.S. No. 14 of 1994, on the file of the Sub Judge, Nirmal, for recovery of possession of the land admeasuring 30’ X 30’ and the same was dismissed by judgment dated 18.4.1994 (Ex.A.43), against which, he filed an appeal in A.S.No. 16 of 1994, on the file of the District Judge, Adilabad, which was also dismissed by judgment dated 28.4.1994 (Ex.A.44). It is stated that the suit was originally filed for injunction and later converted for recovery of possession of the land near the Bus Stand, Nirmal and said land was part of the present disputed land in Survey No. 1675 and in Ex.A.43, the respondent himself claimed that he has encroached upon the Government land, which was subsequently assigned by the Municipality, Nirmal and in the present suit also his claim is that he is in possession of the said land, which was said to have been assigned to his father, but the “Tribunal” failed to consider Ex.A.43 and Ex.A.44, on the ground that they are of no great help to decide the ownership or possession of the petitioners. It is not in dispute that under Ex.A.45/award passed by Revenue Divisional Officer, Nirmal, the petitioners were paid compensation for part of the land acquired in Survey No. 1675. The “Tribunal” having rightly held that there is no dispute about the petitioners purchasing a portion of the land in Survey No. 1675 as is evident from Ex.A.45/ the land acquisition proceedings and Ex.A.46 to Ex.A.50 / the Court Commissioner proceedings etc that he is the owner having purchased the said land but erroneously held that the petitioners failed to prove that the land in possession of the respondent is part of the land purchased by the petitioners in Survey No. 1675. It is further contended that there was no dispute with regard to the identity of the land in possession of the respondent which is part of the land purchased by the petitioners in survey No. 1675 but there is no material to show that the land in question was part of the land purchased by the petitioners. It was erroneously presumed that the portion of the land might have been excluded, the vendor of the petitioners was not in possession of the said land. Further it was held that there is no material to show that the land was part of Survey No. 1675. It is stated that as per Ex.A.6 Panchanama dated 3.2.1966, it was clearly indicated the area in the occupation of the respondent and others and area in the occupation of the petitioners which was part of Survey No. 1965, therefore it cannot be said that the contention of the petitioners is not established. It is stated that non-examination of the original petitioner during his life time cannot be treated as fatal to the case of the petitioners and that his son after the death of his father examined as P.W.1 as competent person to adduce evidence and what is required to be considered is the oral and documentary evidence alone. 20. It is stated that the “Tribunal” has failed to appreciate the binding nature of evidence in Ex.A.43 judgment in O.S. No. 14 of 1994 on the file of the Subordinate Judge, Nirmal, which was confirmed at the instance of the respondent in Ex.A.44 in A.S. No. 16 of 1994 dated 28.4.1994 on the file of the District Judge, Adilabad, which are binding on the respondent and the “Tribunal” failed to appreciate the said judgments. It is stated that though the judgments in Ex.A.43 and A.44 are later to filing of the suit petition, still they are binding in terms of explanation 8 of Section 11 of CPC and relied upon the judgment of the Supreme Court in Gulabchand Chhotalal Parikh Vs, State of Gujarat[1] wherein it was held as under; ( 60. ) As a result of the above discussion, we are of opinion that the provisions of S. 11, C. P. C., are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata any previous