THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE K.G.SHANKAR Writ Petition Nos.25010 and 26811 of 2008 COMMON ORDER (Per Sri Justice Ghulam Mohammed, J) Since both these writ petitions are filed against one and the same order dated 19.09.2008, passed in L.G.C.No.2 of 2004 by the Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act, Hyderabad, (for short ‘the Special Court’), they are being disposed of together by this common order. 2. The parties in W.P.No.25010 of 2008 hereinafter are referred to as they are arrayed in L.G.C.No.2 of 2004. 3. L.G.C.No.2 of 2004 was filed by the applicants under Section 8(1) of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short ‘the Act’) seeking to declare the respondents as land grabbers and to deliver them vacant possession of the land admeasuring 7128.5 square yards in Sy.No.299/2 (old Sy.No.403/1) correlated to TS No.45/1, Ward No.8, Block-3 of Shaikpet Village, Shaikpet Mandal, Hyderabad District. 4. The brief facts are that the father of the applicants by name S.V.Srinivasulu Naidu purchased the land to an extent of Acs.2.27 gts in Sy.No.299/2 from one Sri Shaik Ahmed under two registered sale deeds dated 12.12.1959 (Ac.1.27 gts as per document No.952/59 and Ac.1.00 as per document No.953/59). Out of the said land, Ac.0.07 gts of land was affected in road widening and the balance extent is Acs.2.20 gts equivalent to 12,100 sq. yards. Disputing the title and the ownership of the said land, one Mr. Heera Lal filed O.S.No.100 of 1962 in the Court of IV Additional Judge, City Civil Court, Hyderabad, against the father of the applicants and the same ended in compromise. It is stated that the father of the applicants sold an extent of 4,971 square yards in Sy.No.299/2 (old Sy.No.403/1) Ward No.8, Block No.3 in Shaikpet, with specific boundaries as per document No.630/64, dated 20.03.1964 to one Sri Vemulapalli Krishna Murthy, Sri Boppanna Rama Sastrulu and another. Because of the trespass committed by Military Contract Committee by digging foundation for construction of sheds in their land, the said Krishna Murthy and others filed O.S.No.72 of 1965, which was renumbered as O.S.No.175 of 1970, arraying the father of the applicants as third defendant. The said suit was disposed of on 13.08.1970 holding that the father of the applicants was the owner and possessor of the property for more than 12 years. Aggrieved by the same, respondent No.2-Union of India filed CCCA No.30 of 1972 before this Court and the same was dismissed on 31.03.1975 confirming the said judgment and decree. Thereafter, the plaintiffs in O.S.No.175 of 1970 filed E.P.No.1 of 1980 for removing the sheds and for possession. It is also stated that after the death of Srinivasulu Naidu on 17.06.1993, the applicants have succeeded to the schedule land i.e., 7,128.5 square yards. While so, when the applicants went to the schedule land for clearing bushes and shrubs, the officials of respondent Nos.2 and 3 objected to the same, and that on 27.12.2003, respondent No.1 made attempts to clear the land and put up a board claiming ownership. Hence, the applicants filed the LGC against the respondents. 5. The first respondent filed a detailed counter stating that during the pendency of E.P.No.1 of 1980, one of the decree holders viz., Sri V. Krishna Murthy assigned his 1/3rd share covered by the decree in O.S.No.72 of 1965 in favour of the first respondent and one M.Gopala Krishna under an assignment deed dated 18.03.1992, and as such, they impleaded by way of substitution as decree holders by filing an appropriate petition. It is stated that since respondent No.2-Union of India has been running its Pension Payment Office in the land in question including a portion covered by the decree, the decree holders and Union of India including the first respondent have agreed for a compromise. Accordingly, all the parties filed E.A.No.220 of 1995 seeking to record compromise. As per the said compromise, the possession of land to an extent of 4,971.50 sq. yards, which is indicated in portions A, C and B in the sketch, was delivered to the fist respondent on 14.12.1995. The Commissioner also filed his final report dated 15.06.1996 in the Court. It is stated that neither the father of applicants nor the applicants disputed the possession and enjoyment of respondent No.2 as to the running of Pension Payment Office in the land in question at any point of time either in 1965 or thereafter. It is further stated that as the application is time barred, the respondents cannot be treated as land grabbers. It is further stated that though the father of the applicants was impleaded as third respondent in O.S.No.76 of 1965, he did not make any protest against Union of India from 1965 to 1995 in its occupying the land belonging to him in addition to the land covered by the sale deed executed by him in favour of V. Krishna Murthy and others. As such, the LGC cannot be maintained and the same is liable to be dismissed. 6. Respondent Nos.2 and 3 filed common counter stating that the applicants failed to issue any notice to them as required under Section 80 C.P.C., which is mandatory in respect of suits against the Government. It is stated that as the schedule land being a Defence land, the enactment of Parliament will be made applicable and that the Special Court is not competent to declare the title of the applicants. It is further stated that the land to an extent of Acs.2.20 gts situated at Shaikpet village was the property of Nizam and used as a ‘Minature Rifle Range’ and the same was handed over to the Government of India, Ministry of Defence, on 01.04.1958 vide proceedings of the Board of Officers dated 19.03.1958, by the Collector, Hyderabad consequent to the Federal Financial Integration on 01.04.1950. Out of Acs.2.27 gts of land, Ac.0.07 gts has been merged in road widening before handing over the land to the Ministry of Defence. Later, the Government of India sanctioned the construction of Pension Pay Master’s Office (DPDO), vide letter dated 21.02.1964 and the said construction was completed by 31.03.1965. It is stated that the applicants had not claimed the suit schedule land at any point of time before 16.01.1996. It is further stated that the respondents filed E.A.No.24 of 1984 for stay of execution proceedings in E.P.No.1 of 1980 and E.A.No.208 of 1985 and also C.R.P.No.1873 of 1988 along with C.M.P.No.10116 before this Court for stay of the execution proceedings and they were ended in dismissal. The decree holders also filed C.C.No.411 of 1995 before this Court. Ultimately, the matter was ended in compromise by handing over the land admeasuring 4,971.5 sq. yards to the decree holders vide proceedings dated 14.12.1995 of the Advocate Commissioner and C.C.No.411 of 1995 was also closed on 15.12.1995. It is stated that as per the compromise memo, the decree holders accepted that the suit schedule land being vested with the Government of India, Ministry of defence and as such, the applicants have no right over the schedule land and that these respondents are not the land grabbers. 7. The applicants filed rejoinder to the said counters. 8. Based on the above said pleadings, the Special Court framed the following issues for consideration: 1. Whether the applicants are the owners of the application schedule property? 2. Whether the rival title set up by the respondents is true, valid and binding on the applicants? 3. Whether the respondents are land grabbers within the meaning of Act XII of 1982? 4. Whether the respondents prescribed title by adverse possession? 5. To what relief? The Special Court also framed the following additional issue as under: Whether the application is not maintainable for want of jurisdiction? 9. During trial, the second applicant was examined as P.W.1 and Exs.A1 to A21 were marked on behalf of the applicants. The first respondent was examined as R.W.1 and R.W.2 was examined and Exs.B1 to B25 were marked on behalf of the respondents. 10. The Special Court having considered the material evidence and the documents on record held that the applicants have established their title to the schedule property and found issue Nos.1 and 2 in their favour and against the respondents. It held issue No.3 in favour of the applicants holding that the respondents are land grabbers. As regards issue No.4, the Special Court held that the respondents have failed to prove their title by adverse possession in respect of the schedule land and found the issue against the respondents. As regards the maintainability of LGC with regard to the additional issue, the Special Court held that it has got jurisdiction and the LGC is maintainable and finally by answering issue No.5, allowed the LGC treating the applicants as the absolute owners of the schedule property and declaring the respondents as land grabbers. It also directed the respondents to deliver possession of the schedule property within two months from the date of the judgment, failing which, the Revenue Divisional Officer concerned shall evict the respondents from the schedule property within one month thereafter and submit compliance report to the Special Court. Aggrieved by the said judgment, respondent No.1 and respondent Nos.2 and 3 in LGC filed W.P.Nos.25010 and 26811 of 2008 respectively. 11. The applicants/Respondent Nos.2 to 8 in W.P.No.25010 of 2008 and the first respondent/respondent No.7 in W.P.No.26811 of 2008, filed their respective counters. 12. Heard Sri M.R.K.Chowdhary, learned senior counsel appearing for Sri P.V.Mahesh, learned counsel for the first respondent, Sri Deepak Bhattacharjee, learned Additional Standing Counsel for Central Government appearing for respondent Nos.2 and 3 and Sri B.Adinarayana Rao, learned counsel representing Sri K.Satyanarayana Murthy, learned counsel for the applicants. 13. Sri M.R.K.Chowdhary, learned senior counsel, contended that in 1995, in view of the compromise, ‘A’, ‘C’ and ‘B’ portions of properties were delivered to respondent No.1 as he is the assignee as per the decree in O.S.No.175 of 1990 and his possession and enjoyment has never been disputed by the applicants or their father. He contended that the father of the applicants being defendant No.3 in O.S.No.175 of 1990 was also never questioned about the title of Union of India, which constructed Pension Payment Office and sheds in 1965 in the land in question. He contended that after the death of their father- Srinivasulu Naidu, taking undue advantage of the exchange proposal took place in E.P.No.1 of 1980, the applicants are trying to recover the possession of the property in question. He submitted that A and C properties admeasuring 2343.63 sq. yards were in possession of Union of India and B and D properties are covered by the decree and in part of ‘D’ schedule property, sheds were constructed by Union of India. He further contended that as the applicants neither alleged the land grabbing activity against this respondent nor established the date of such grabbing by respondent Nos.1 and 2, LGC is not maintainable. He further contended that the Union of India without disputing the title of Shaik Ahmed, claimed its possession since 01.04.1958. He further contended that as the dispute is with regard to title and possession, the same has to be decided by a Civil Court and as such, the Special Court has no jurisdiction and the order impugned is null and void in the eye of law. He further contended that the right of the applicants stood extinguished by the operation of Section 27 of the Limitation Act since they allowed the Union of India to be in possession of land from 1958 and as such, their claim is barred by limitation and that the principle of res judicata applies since the respondents and the father of the applicants were parties to the suit and the subject matter of the suit is part of the sale deeds- Exs.A1 and A2 and that the Special Court ought to have considered the said aspect. He relied upon the decision of the Apex Court in DINDAYAL v. RAJARAM[1] wherein it was held as under: “Admittedly the suit properties were held on tenancy right. Girdharilal was the protected tenant of those properties. Under the gift mentioned earlier, the plaintiffs became the tenants of those properties. In view of Article 1 of the Second Schedule read with Section 104(1) of the Act, the plaintiffs as tenants could not have sued for possession of the suit properties after June 1, 1954. It was urged on behalf of the appellants that in view of the principle underlying Section 28 of the Indian Limitation Act, 1908, which principle is not confined to suits and applications for which limitation is prescribed under that Act but is of general application, the plaintiff’s right to the suit properties must be held to have been extinguished. In other words, the contention was that in view of the aforementioned provisions, the plaintiffs had not merely lost their right to sue for possession of the suit properties, their right in the properties itself had been extinguished. It is well settled that the principle underlying Section 28 of the Indian Limitation Act, 1908 (same as Section 27 of the Indian Limitation Act, 1963) is of general application. It is not confined to suits and applications for which a period of limitation is prescribed under the Limitation Act’. Learned senior counsel relied upon the decision of the Apex Court i n PATEL NARANBHAI MARGHABHAI v. DHULABHAI GALBABHAI[2] wherein it was held as under: “ Under Section 2(1) of the Limitation Act suit does not include application. Section 3(2)(i) amplifies that for the purpose of Limitation Act a suit is instituted in an ordinary course when the plaint is presented to proper Officer. Section 27 extinguishes the right to property at the determination of the period ‘hereby limited’ for instituting a suit for possession of any property. Under Section 2(i) period of limitation means the period of limitation prescribed for any suit by this schedule. In other words the right to any property would be extinguished only when limitation in that behalf has been prescribed and the owner or person entitled to possession failed to lay the suit by presentation of a plaint to the proper officer within the prescribed period by the schedule to the Limitation Act. The suit for possession under Section 27 of the Limitation Act is a suit in respect of which the period of limitation has been prescribed i.e., computed as per the provisions of the Limitation Act. It is clear from the words ‘period hereby limited’ in S.27 that it would be an applicable to a suit and that the limitation prescribed is one in the schedule to the Limitation Act. S.27, therefore, does apply to the suit for possession laid in the specified Civil Court”. Learned counsel has also relied upon the decision of the Apex Court in POPAT AND KOTECHA PROPERTY v. STATE BANK OF INDIA STAFF ASSOCIATION[3] wherein it was held as under: “Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra have to be considered. The real object of Order 7 Rule 11 of the Code is to keep out of Courts irresponsible law suits. Therefore, Order 10 of the Code is a tool in the hands of the courts by resorting to which and by searching examination of the party in case the court is prima facie of the view that the suit is an abuse of the process of the court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order 7 Rule 11 of the Code can be exercised”. Learned counsel further contended that under Articles 142 and 144 of the Old Limitation Act, the party must prove title and possession when the possession is lost and under Articles 64 and 65 of the Limitation Act when once the title is proved, possession follows the title. With regard to the distinction between the old and new Limitation Act, the learned counsel has relied upon the decision of the Apex Court in SAROOP SINGH v. BANTO[4] wherein it was held as under: “The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant- Appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred. With regard to the limitation and the jurisdiction, the learned counsel also relied upon another decision of the Apex Court in LACHHMAN SINGH v. HAZARA SINGH[5] wherein it was held as under; “Limitation is a question of jurisdiction. Section 3 of the Limitation Act puts an embargo on the court to entertain a suit if it is found to be barred by limitation’. Learned senior counsel further contended that the applicants have not stated specifically the acts of land grabbing in the concise statement. He relied upon the decision of the Apex Court in OM PRAKASH SINGH v. M. LINGAMAIAH[6] wherein it was held as under: ‘The Act indisputably confers a wide jurisdiction upon the Special Tribunal and the Special Court. All attributes of a civil litigation can be gone into by the Special Court and the Tribunal. The Tribunal is not only a court but by reason of a legal fiction created is deemed to be a civil court. It contains a non obstante clause, by reason whereof the provisions of the Act would prevail over the Code of Civil Procedure, 1908 as also the Andhra Pradesh Civil Courts Act, 1972. The Tribunal, however, derives jurisdiction only when jurisdictional facts are disclosed in the petition. For invoking the jurisdiction of the said court, it is necessary not only to allege the act of land grabbing within the meaning of the provisions of the Act but also a prima facie case must be found out to the Special Court and/or the Tribunal in order to enable it to issue notices upon satisfying itself as regards the existence of an act of land grabbing. When it takes a suo motu action, it has to hear the alleged land grabbers also. The statute, therefore, provides for sufficient safeguards. Ordinary disputes with regard to a title of property are not within the exclusive jurisdiction of the Special Court or the Tribunal. They have to be determined in ordinary civil courts. The Special Courts and the Tribunals are not substitutes for the civil courts in the litigations involving a civil dispute relating to immovable property within the meaning of Section 9 of the Code of Civil Procedure. It has the exclusive jurisdiction where land grabbing is alleged or appeared from the application filed before it”. Learned counsel further contended that when the applicants have taken the plea of adverse possession of the land in question, they have to prove the same. He relied upon the decision of the Apex Court in HEMAJI WAGHAJI JAT v. BHIKHABHAI KHENGARBHAI HARIJAN[7] wherein it was held as under: “A plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. The law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. There is, therefore, an urgent need of fresh look regarding the law on adverse possession. The Union of India is recommended to seriously consider and make suitable changes in the law of adverse possession”. Learned counsel also contended that the judgment of the Apex Court in KONDA LAXMAN BAPUJI v. GOVERNMENT OF ANDHRA PRADESH[8] as referred by the Special Court has no relevance to the facts of the present case. 14. Sri Deepak Bhattacharjee, learned Additional Standing Counsel appearing for respondent Nos.2 and 3, contended that the land to an extent of Acs.2.27 gts was the property of Nizam State Forces and as per the understanding, it was handed over to Union of India on 19.03.1958 under Board proceedings and in the said land, Pension Payment Office was constructed in 1965 and from 31.03.1965, the said office has been functioning. He contended that the Special Court has no jurisdiction to declare these respondents as land grabbers as it has got prima facie title and possession by acquiring the said property after due process of law and produced the Military Land Register in proof of the same. He placed reliance upon Sections 2(b), 2(d), 2(e) and 2(g) of the Act. The said Sections read as under: Section 2(b) ‘Government’ means the State Government; Section 2(d) ‘land grabber’ means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest; Section 2(e) ‘land grabbing’ means every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person by a person or group of persons, without any lawful entitlement and with a view to illegally taking possession of such lands, or enter into or create illegal tenancies or lease and licenses agreements or struck unauthorized structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis for construction, or use and occupation, of unauthorized structures; and the term ‘to grab land’ shall be construed accordingly; Section 2(g) ‘person’ includes a group or body of persons, an association, or a religious or charitable institution or endowment, whether incorporated or not”; He further contended that as the Military Land Register is a statute in nature and when it shows that respondent No.2 is the owner of the schedule property, no other proof is necessary in view of Rule 14 of ACR Rules, 1944. He further contended that as per Entries 18 and 45 of List II and Entry 32 of List I in Schedule VII of the Constitution of India, the Central Government could not be termed as land grabber. He further contended that though the applicants claimed their possession from 1965 onwards, they filed LGC in 2004 and therefore, their claim is barred by limitation. He relied upon the decision of this Court in GOUNDLA VENKAIAH v. MANDAL REVENUE OFFICER, SHERLINGAMPALLY MANDAL[9] wherein it was held as under: “If an owner of a property is aware that his property is under