IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINETH DAY OF SEPTEMBER TWO THOUSAND AND FOUR W.P.Nos.7472, 7469 and 10358 of 1990 PRESENT THE HON'BLE MR JUSTICE B. SUDERSHAN REDDY and THE HON'BLE MR JUSTICE K.C. BHANU WRIT PETITION NO : 7472 of 1990 Between: 1 Tiruvurangam Venkatanarasamma, W/o Sri T.Hygrivachari, Hnamakonda. 2 Kodakandla Singarachari, S/o. Lakshmanachari, Ippagudem (R/O), Warangal District. 3 Bakaraju Raghavaratnamma, W/o Rama Rao, R/o Warangal. ..... PETITIONER(S) AND 1 Special Court A.P.Land Grabbing (Prohibition), Basheerbagh, Hyderabad. 2 Gandamala Ramulu, R/o Kummarapalli, Hanmakonda, Warangal District. 3 State of A.P. Rep. by the District Collector Warangal, Hyderabad. R3 is impleaded as per court order dt. 22.1.1991 in WPMP 21002/90 .....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 a Writ of Certiorari or any other Writ or order or direction calling for the records relating to the judgment L.G.C.No. 63/89 on the file of the Special court under Andhra Pradesh Land Grabbing (Prohibition) Act and quash the same. Counsel for the Petitioner: MR.VILAS V.AFZULPURKAR Counsel for the Respondent Nos1 and 3.: The Advocate General and GP FOR REVENUE Counsel for Respondent No.2: Mr.J.Nataraja Sarma WRIT PETITION NO : 7469 of 1990 Between: 1 Bkaraju Raghava Ratnamma, W/o Ramarao, R/o Warangal. 2 Turuvarangam Venkata Rama Narasamma, W/o Sri P.Hayagrivachari, R/o Hanamakonda, Warangal District. 3 Kodakandla Singarachari, S/o Lakshmanachari, R/o Ippaguda, Warangal District. ..... PETITIONER(S) AND 1 The Special Court Under A.P., Land Grabbing (Prohibition) Act. Basheerbagh, Hyderabad. 2 State of A.P., Rep. by its District Dollector, Warangal. 3.Gandamala Ramulu, S/O.Veeraiah, R/o.Kummarapally,Hanamkonda, Warangal District. (R3 is impleaded as per Court order dated 29.9.2004 in WPMP.No.32727 of 2001) .....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 a Writ of certiorari or any other Writ, order or direction calling for the records relating to the judgment i LGC.No.75/89 on the file of the Special Court Under Andhra Pradesh Land Grabbing (Prohibition) Act and quash the same. Counsel for the Petitioner:MR.VILAS V.AFZULPURKAR Counsel for the Respondent Nos1 and 2.:The Advocate General and GP FOR REVENUE Counsel for Respondent No.3:Mr.J.Nataraja Sarma A N D WRIT PETITION NO : 10358 of 1990 Between: 1 Bkaraju Raghavaratnam, W/o Ramarao, Resident of Warangal. 2 Turuvarangam Venkatrama Narsamma, W/o Sri P.Hayagrivachari, Resident of Hanumakonda, Warangal. 3 Kondakandla Singarachari, S/o Lakshamanachari, Resident of Ippaguda, Warangal District. ..... PETITIONER(S) AND 1 The Special Court Under Andhra Pradesh Land Grabbing (Prohibition) Act, Bhasheerbag, Hyderabad. 2 The Collector, Warangal. 3 The Tahsildar, Warangal. 4 State of Andhra Pradesh, reptd., by the Collector, Warangal. 5. Gandamala Ramulu, S/O.Veeraiah, R/o.Kummarapally,Hanamkonda, Warangal District. (R5 is impleaded as per Court order dated 29.9.2004 in WPMP.No.32728 of 2001) ( Claim against R2 is Dismissed for default as per court order dt. 13.2.1998) .....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 a Writ of Certiorari or any other Writ, Order or Direction, calling for the records relating to the Judgment in L.G.C.No.64 of 1989 on the file of the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act and quash the same and pass Counsel for the Petitioner:MR.VILAS V.AFZULPURKAR Counsel for the Respondents1,3 and 4 : The Advocate General and GP FOR REVENUE Counsel respondent No.5 Mr.J.Nataraja Sarma The Court made the following : The Hon’ble Sri Justice B. Sudershan Reddy a n d The Hon’ble Sri Justice K.C. Bhanu WRIT PETITION Nos. 7472, 7469 and 10358 OF 1990 COMMON ORDER: (per Sri Justice K.C. Bhanu) These writ petitions are filed under Article 226 of the Constitution of India to issue a writ of Certiorari or any other writ order or direction calling for the records relating to the common judgment dated 8.5.1990 in L.G.C.Nos. 63, 64 and 75 of 1989 on the file of Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act (for short, ‘the Act’) and to quash the same as illegal and arbitrary. The petitioners in W.P. 10358 of 1990 are the plaintiffs who filed a suit in O.S. 78 of 1974 on the file of Subordinate Judge, Warangal. The said suit was withdrawn by the District Judge, Warangal and renumbered as O.S. 25 of 1977 and again it was transferred to Sub-Court, Warangal and renumbered as O.S.108 of 1990. The said suit was withdrawn by the Special Court (District Judge) Warangal as L.G.C. 3 of 1988 and again it was withdrawn by the Special Court, Hyderabad after the same was constituted and it was renumbered as L.G.C. 64 of 1989. W.P. 7472 of 1990 is filed by the respondents in O.P. 26 of 1983 under the Act on the file of Special Court (District Court) Warangal The said O.P. was withdrawn by the Special Court, Hyderabad and renumbered as L.G.C. 63 of 1989. The State of Andhra Pradesh filed O.P. 32 of 1983 before the Special Court, Warangal. On transfer, the same was renumbered as L.G.C. 75 of 1989 by the Special Court, Hyderabad. Aggrieved by the orders in the common judgment in L.G.Cs. 63, 64 and 75 of 1989, the plaintiffs in L.G.C. 64 of 1989 and the respondents in L.G.C. 63 and 75 of 1989 filed these three writ petitions. Since the issue involved in all the three writ petitions is common and arise out of common judgment, all the writ petitions are being disposed of by this common order. The brief facts that are necessary for the disposal of the present writ petitions may be stated as follows. For better appreciation of the facts, the parties are referred to as arrayed in the Special Court under the Act. The plaintiffs in L.G.C. 64 of 1989 filed the suit stating that they are the purchasers of the land to an extent of 556 Sq. yards, Ac.3-35 guntas and Ac.10-02 guntas respectively from the 4th defendant therein forming part of S.No.898 through registered sale deeds and since then they have been in physical possession and enjoyment of the same. The defendants 1 to 3 therein claiming the lands purchased by them forming part of S.No.1066 of Hanamkonda and the entire land is denoted as a Shikam land. On enquiry the plaintiffs came to know that Balasamudram tank was breached and abandoned in the year 1945. During 1946 the Government vested the entire land in S.No. 1066 in the Hanamkonda Municipality for city development. Therefore, the land in S.No. 1066 is no more a Government land and the same is borne out by revenue records. The plaintiffs also learnt that the extent of S.No.1066 Hanamkonda has been wrongly mentioned as Ac.133-22 guntas in the revenue records. After verification it came to light that old S.No.665 has been wrongly included in the present S.No.1066. At the time of sale it was represented to the plaintiffs by defendant No.4 that one Kaligopadi Mallaiah and his son Ramaiah were in possession of Ac.18-00 for more than 60 years as absolute owners. It is the further case of the plaintiffs that D-4 purchased the said land from K. Ramaiah and therefore he was reconveying the same to the plaintiffs. On further enquiry the plaintiffs came to know that Mallaiah and his predecessors were in occupation and enjoyment of Ac.18-00 of land in old S.No. 665 from times immemorial. It is also stated that Nazim Smith, Telangana through his order dated 17th Aban, 1335 F in File No. 9-10/1335 F assigned the patta of this land to the said Mallaiah and upon spot inspection report the Nazim had found that the extent of Ac.18-00 was deleted from the present extent of S.No.898 and he also further observed that it was wrongly included in the present S.No.1066. Therefore, in the assignment order it was directed that Mallaiah is entitled to permanent occupancy rights over Ac.18-00 of land. The said officer also gave directions to give separate survey number to an extent of Ac.18-00. But the Revenue Officers did not make necessary rectifications. The result is that in the records wrong entries were carried out from year to year. The defendant No.4 after obtaining permission from the Municipality for laying out the site sold several plots to different persons including the plaintiff No.1. The defendants are, therefore, estopped by conduct, acquiescence and by record from claiming the plaint schedule land as Shikam land. The plaintiffs are bona fide purchasers for value from the ostensible owner without notice of the claim of the Government and they have invested huge amounts for the improvement of the land and constructed compound wall and paying land revenue to the Government and the property tax to the Municipality. Hence the suit. The 1st defendant filed written statement stating that the plaintiffs’ possession is illegal. The land admeasuring Ac.133-22 guntas was a tank bed land of Balasamudram tank and the same was made over to the Municipal authorities in 1946 for extension of Abadi. The Municipality has utilized only Ac.111-11¾ guntas and the remaining area of Ac.22-10¼ guntas which includes the suit land continued to be the Government land. The plaintiffs are put to strict proof of their allegation that K. Mallaiah or his alleged son Ramaiah was ever in possession of Ac.18-00 of land forming part of old S.No. 665 and the truth, validity and binding nature of the assignment in favour of Mallaiah. The alleged uninterrupted possession of Mallaiah and Ramaiah over an extent of Ac.18-00 is not true. The purchase of land by D-4, evidenced by the sale deed dated 24.7.1961, omits to mention the survey number of the land purchased, but the boundaries fall within S.No. 1066. The Municipal authorities wrongly sanctioned the lay out in 1965 at the instance of D-4 being misled by his wrong representation. When the facts came to light, the said sanction was cancelled by the Government in G.O.Ms.No. 298, MA dated 21.4.1970. The said cancellation order has not been challenged. The plaint schedule land remains to be the property of the Government. The plea of estoppel is untenable. The claim of plaintiffs that they have perfected the title to the property by prescription is unfounded. Therefore, the 1st defendant prayed to dismiss the suit. Defendants 2 and 3 have filed a memo adopting the written statement filed by D-1, but D-4 filed a written statement stating that K. Ramaiah alienated to this defendant under two sale deeds to an extent of Ac.20-18 guntas and they formed part of S.No.898 Hanamkonda. The Subordinate Officers instead of giving separate survey numbers for the reduced area from old S.No.665 as directed by Nazim Zamabandi Simth, by mistake included it in present S.No.1066. In spite of this mistake in the revision survey Kaligopidi Ramaiah and his father have been in absolute and uninterrupted possession for more than Ac.18-00 of land forming part of old S.No.665. Hence, he has no objection for decree of the suit. The following issues have been framed for trial: 1. Whethe the suit land form part of S.No.898 as alleged by the plaintiff? 2. Whether the plaintiffs are bona fide purchasers for value without notice? 3. Whether the vendors of the suit land were having title to the suit land? 4. Whether the plaintiffs are entitled to improvements? 5. Whether the suit is properly valued and court fee paid sufficient? 6. Whether the title of the plaintiffs have become perfect by prescription? 7. Whether the proceedings under the Land Encroachment Act are legal and valid? 8. Whether the suit under Order 1 Rule 8 CPC is maintainable? 9. To what relief?” After recording of evidence on behalf of both the plaintiffs and the defendants, one G. Ramulu (2nd respondent in W.P. 7472 of 1990) filed a petition under Order I Rule 10 CPC claiming that he may be impleaded as a defendant in the suit stating that the suit land was Government land and he himself and others have applied for allotment of the suit land by way of house sites. The said application was dismissed by the Subordinate Judge. In the meanwhile, the A.P. Land Grabbing (Prohibition) Act, 1982 came into force. Then the said G.Ramulu filed I.A. 147 of 1983 under Section 8(8) of the Act requesting the Subordinate Judge to stay all further proceedings in the suit and transmit the record to the Special Court Warangal, but the said application was dismissed. At that stage, he filed O.P. 26 of 1983 before the Special Court, Warangal for eviction of the respondents i.e. the petitioners in these writ petitions as land grabbers and to evict them from the schedule land. It is stated in the said petition that the land in question is a shikam land and an extent of Ac.133-22 guntas in S.No.1066 is Balasamudram tank bed land and no part of the tank bed land had ever been granted or assigned to any individual at any point of time by the Government. The allegations in O.P. 32 of 1983 filed by the Government against the defendants in O.S. 78 of 1974 are the same as the allegations made by the Government in the written statement filed in O.S. 78 of 1974. The following points have been framed in L.G.Cs.63 of 1989 and 75 of 1989: LGC 63/1989: 1. Whether the Government is the owner of the application schedule property; 2. If so, whether the respondents are not land grabbers; 3. Whether the claim of the applicant is barred by limitation; 4. To what relief; LGC 75/1989: 1. Whether the Government is the owner of the application schedule property; 2. If so, whether the respondents are not land grabbers; 3. Whether the claim of the applicant is barred by limitation; 4. To what relief? In L.G.C. 64 of 1989, on behalf of the applicants 7 witnesses were examined and 52 documents were marked. On behalf of the respondents 4 witnesses were examined and 52 documents were marked. Ex.X-1 was also marked through PW-3 besides Exs.C-1 and C-2. On behalf of the applicants in LGC 63 of 1989, 3 witnesses were examined and 24 documents were marked. No evidence was let in on behalf of the respondents therein. On behalf of the applicants in LGC 75 of 1989, one witnesses was examined and one documents was marked. No oral or documentary was let in on behalf of the respondents therein. Upon an elaborate consideration of the evidence on record, the Special Court found that the Government still continues to be the owner of the property and the plaintiffs in O.S. 78 OF 1974 are not bona fide purchasers and they make improvements at their own risk without any title to the property and the land was grabbed by defendant No.4 and therefore the plaintiffs in O.S. 78 of 1974 and the respondents 3, 4 and 5 in LGC 63 of 1989 are land grabbers, and accordingly ordered for eviction from the suit schedule property. Accordingly, LGC 64 of 1989 was dismissed and L.G.Cs. 63 and 75 of 1989 are allowed. In these writ petitions, the learned counsel for the petitioners Sri Vilas V. Afzul Purkar contended that originally one K. Ramaiah is the owner to an extent of Ac.18-00 in old S.No. 665 and D-4 purchased the land from him and there upon D-4 sold the same under various sale deeds to the petitioners and the possession of K. Ramaiah was recognized even by Nazim Simth as early as in the year 1925 and Ex.B-18 is the document which shows about the possession of the property by the predecessors of the plaintiffs. He further contended that the conclusions reached by the Special Judge are not based upon any evidence; that the Special Court on erroneous conclusion gave a finding that Ex.B-18 is a fabricated document event though no challenge has been made; that the petitioners perfected their title by adverse possession and the land in question was vested with the Warangal Municipality and now under Exs.B-1 to B-3 the Government cannot be the owner of the property; that the land revenue receipts filed on behalf of the petitioners right from the year 1965 to 1980 show about the exclusive possession of the property and prior that D-4 was in possession of the property and before that his predecessor-in-title had been in continuous possession and enjoyment of the property. The learned counsel made a feeble attempt that the Government is estopped from contending that the Government assigned the land to the Municipality and the Municipality sanctioned the lay-out. He also contended that an extent of Ac.18-00 was wrongly included in S.No.1066 and both oral and documentary evidence adduced on behalf of the petitioners clinchingly prove their case and they are in possession and enjoyment of the property through a purchase made under sale deeds. Hence, he prays to set aside the findings of the trial court and allow the writ petitions. The learned Advocate General contended that the petitioners cannot derive any title from D-4 who claims to have purchased the same from K. Ramaiah who has no title over the property and Ex.B-18 cannot be believed as true and the possession if any of the plaintiffs is an illegal possession after 1961. The suit is filed in the year 1974. Therefore, the question of adverse possession does not arise. Originally the Government made over the land to the Municipality to an extent of Ac.133-22 guntas for development but the Municipality could not utilize the entire extent. The present extent remains with the Government and therefore the Government is the title holder of the land as the same is classified as Shikam land. Upon elaborate consideration of the matter the Special Court gave findings which are not perverse and on the other hand the findings are based upon proper appreciation of the evidence on record and therefore there are absolutely no grounds to interfere with the impugned common judgment. Sri Nataraja Sarma, learned counsel appearing for the 2nd respondent in W.P. 7472 of 1990 contended that the land in question is a Government land; that K. Ramaiah has no title to the property; that Ex.B-18 is a fabricated document; that if an extent of Ac.18-00 was wrongly included in S.No.1066, the same is not rectified as on today; that the land in S.No.1066 admittedly is a shikam land vested with the Government and that Ex.B-18 is not even filed along with the suit; that a bare reading of Ex.B-18 would indicate that it is false document because an appeal will not lie to Sadar Nazim against the order of the District Collector but it only lies to the Government and the official who is said to have been issued this document in not in existence in view of enactment called Hyderabad Revenue Act, which came into force from 1908 and Ex.B-18 is brought into existence after the law is codified and there is no law like Sadar Nazim and that after elaborate consideration of the case the Special Court gave findings which are based upon proper appreciation of the evidence on record. Hence, he prays to dismiss the writ petitions filed by the petitioners. It is not in dispute that this court while exercising the jurisdiction under Article 226 of the Constitution of India can interfere with the judgments of the Subordinate Courts and the Tribunals where (1) there is an error manifest and apparent on the face of the proceedings such as when it is based on clear misreading or utter disregard to the provisions of the law and (2) a grave injustice or gross miscarriage has occasioned thereby. It is also well settled that while exercising the power of Certiorari this court is more concerned with the decision making process and to test the same on the grounds of illegality, irrationality or procedural impropriety. The claim of the petitioners is that they are the absolute owners of an extent of Ac.11-17 guntas (Item No.1 of suit schedule) and Ac.6-07 guntas (Item No.2 of the suit schedule) of land, totalling Ac.17-24 guntas forming part of old S.No.665, new S.No.898. It is their case that an extent of Ac.18-00 was wrongly included in S.No.1066. It is their further case that K. Mallaiah was in occupation of Ac.18-00 of land in old S.No.665 from times immemorial. It is also their case that Nazim Simth Telangana under Ex.B-18 directed patta to Mysiah and deleted Ac.18-00 from new S.No.898. The defendant No.4 claims to have purchased the land from K. Ramaiah s/o Mallaiah under Ex.B-15 sale deed dated 22.7.1961. Exs.B-16 and B- 17 are the rectification deeds. The 1st plaintiff seems to have purchased 556 Sq. yards under Ex.A-3 sale deed dated 26.8.1965. The 2nd plaintiff purchased Ac.4-05 guntas under sale deed Ex.A-5 dated 9.8.1965 and also Ac.5-37 guntas under Ex.A-6 sale deed dated 31.8.1965 whereas the 3rd plaintiff purchased Ac.3-35 guntas under Ex.A-7 sale deed dated 28.9.1965. Defendant No.4 claims to have purchased under Ex.B-15 sale deed dated 22-7-1961 an extent of Ac.12-20 guntas of land. The said document does not contain any survey number. It does not also contain how the vendor got Ac.12-20 guntas of land. The sale deed under Ex.B-16 was executed by the vendor Kalegopida Ramanna and this document also does not show how the vendor got the property. Therefore, the title of K. Ramaiah in respect of the present extent of land as claimed by the petitioners is in serious dispute. Neither the petitioners in these writ petitions nor their vendor get a better title unless the vendor under Ex.B-15 is having a right title and interest in the property. The main truncard of the petitioners is Ex.B-18, which according to them is the order passed by Sadar Nazim, Revenue Department, Telangana Circle, Government of Hyderabad dated 10th Abban 1335 Fasli i.e. 10th September 1924. A close reading of this document shows that on appeal from District Warangal Subedari dated 10th Abban 1335 The Sadar Nazim inspected the land in dispute personally. On verification of old village map, it is found that old S.No.665 of Padmakshi Gutta comprised of 95 acres 26 guntas. In revision this number has been altered into 898 and its extent has been shown as 78 acres 03 guntas. The remaining land measuring 17 acres 23 guntas appears to have been left out for being given separate number. Because of inadvertence of the Settlement Department separate number was not given for the said land. The land in the possession of the petitioner as not submerged and therefore it cannot be treated as part of Balasamudram tank bed land. Therefore, the petitioner is entitled for the patta and accordingly the patta is sanctioned for this land in the name of the applicant as per his application and the name of his son will be entered as a Shikwidar and accordingly instructions were given to the Subordinate Officers for the formation of a separate number and grant of patta and accordingly to inform the applicant informed that he can enjoy the property in perpetuity. Under Ex.B-18 the Collector was directed to issue a patta in the name of K. Mallaiah and the name of his son K. Ramanna may be entered as Shikwidar. According to the findings given by the trial court, this Ex.B-18 is a fabricated document by the petitioners. The reasons given by the Special Court were that either Mallaiah or his son Ramanna did not take steps for rectification of mistakes as pointed under Ex.B-18 and if it is a genuine document the names of those persons would have been recorded as pattadars. So also the plaintiffs and their predecessors in title did not take any interest to mutate their names in the revenue records as pattadars. The said reasoning is not perverse. The Hyderabad Land Revenue Act 1908 came into force from 1st Azur, 1318 Fasli. As rightly pointed out by the learned counsel Mr. Nataraja