IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD. (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF MARCH, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY WRIT PETITION Nos.10758, 12608 & 8904 OF 2005 WRIT PETITION No.10758 OF 2005 B e t w e e n: Mohd. Anwar. - - - Petitioner. A n d 1. The Special Court under A.P. Land Grabbing (prohibition) Act at Hyderabad, Rep. by its Registrar, Having its office at BRKR Bhavan, Tankbund Road, Hyderabad. 2. State of Andhra Pradesh, Rep. by the Revenue Divisional Officer, Hyderabad. - - - Respondents. WRIT PETITION No.12608 OF 2005 B e t w e e n: Smt. Shamsunnisa Begum - - - Petitioner. A n d 1. The Special Court under A.P. Land Grabbing (prohibition) Act at Hyderabad, Rep. by its Registrar, Having its office at BRKR Bhavan, Tankbund Road, Hyderabad. 2. State of Andhra Pradesh, Rep. by the Revenue Divisional Officer, Hyderabad. - - - Respondents. WRIT PETITION No.8904 OF 2005 B e t w e e n: Syed Tanvir Hasan and another. - - - Petitioners. A n d 1. The Special Court under A.P. Land Grabbing (prohibition) Act at Hyderabad, Rep. by its Registrar, Having its office at BRKR Bhavan, Tankbund Road, Hyderabad. 2. State of Andhra Pradesh, Rep. by the Revenue Divisional Officer, Hyderabad. - - - Respondents. The court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G. KRISHNA MOHANREDDY WRIT PETITION Nos.10758, 12608 & 8904 OF 2005 COMMON ORDER: (Per Hon’ble Sri Justice G. Krishna Mohan Reddy) These three writ petitions are directed against order passed in L.G.C. No.125 of 1998 on the file of the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad (for short, “the Land Grabbing Court”) dated 29-03-2005 allowing pleas taken therein. The second respondent is the applicant, whereas the first respondent is the Special Court, the petitioner in W.P. No.12608 of 2005 is the 9th respondent and the petitioners in W.P. No.8904 of 2005 are the 2nd and 5th respondents in the L.G.C. No.125 of 1998 respectively whereas, the petitioner in W.P. No.10758 of 2005 is not a party therein. 2. For the sake of convenience the parties herein will be referred as they are arrayed in L.G.C. No.125 of 1998 before the Land Grabbing Court to the extent possible. 3. The land grabbing case was filed under Section 8 (1) of the A.P. Land Grabbing (Prohibition) Act, 1982 to declare the respondents therein as land grabbers and also to declare a compound wall raised by them as illegal and to evict the respondents from the schedule property and deliver vacant possession of the property to the applicant and to award compensation/profits and to punish the respondents on the ground of their illegal occupation of the schedule property. The schedule property is an extent of 2,479 Sq. Mtrs in T.S. No.3/2 and 4, Block ‘L’, Ward No.13 of Shaikpet village and Mandal, Hyderabad. 4. The case of the applicant is as follows : The schedule property has been classified as Government ‘Poramboke’ in the revenue records. A town survey was conducted in the year 1964-71 as per the provisions of A.P. Survey and Boundaries Act, 1923 and it was duly published under Sections 5 and 6 of the said Act. Further, the entries in the Town Survey Record became final. Further, the respondents did not file any suit as stipulated under Section 14 of A.P. Survey and Boundaries Act within three years there from. Further, during January, 1998, when a physical verification of the property was conducted by its officials it was noticed that the respondents were in the unauthorized occupation of the property from past ten years. Hence, the Writ Petition. 5. The Respondents 1 and 9 filed counters claiming that the schedule property never belonged to the applicant and also the applicant was never in the possession of the property and it was originally belonged to Smt. Bhageerathamma who got the land from her ancestors and after her death it was devolved upon her daughter Smt. Ratnamma and subsequently the property devolved upon Smt. Ratnamma and her two daughters namely Smt. Bashamma and Smt. Kamala Bai whereas, Smt. Bashamma died in the year 1978 issueless as a consequence of which all the lands devolved upon Kamala Bai. Further, one T. Madan Rao, claiming to be the adopted son of Bashamma filed a petition before the then Tahsildar, Golconda, for the mutation of his name for the schedule property which was allowed without any enquiry, following which Smt. Kamala Bai preferred appeal before the R.D.O. Hyderabad, and a Revision before the District Revenue Officer, wherein the District Revenue Officer by his order dated 09-12-1985 directed to remove the name of T. Madan Rao from the revenue records pertaining to the property. Further, the Mandal Revenue Officer, Golconda, enquired and passed orders dated 20-01-1992 declaring that Kamala Bai was entitled for the mutation of her name in the relevant pahanies in respect of her properties. Further, the first respondent purchased agricultural land in Survey Nos.38, 40, 224, 226 and 227 admeasuring Ac.1-65 guntas situated in Ward No.8, Block ‘L’ at Shaikpet village, Golconda Mandal, Hyderabad, through registered sale deed dated 28-03-1994 from Kamala Bai and 7 others represented by their G.P.A. holder for valuable consideration. Further, likewise, the 9th respondent purchased agricultural land to an extent of Ac.1-65 guntas in the same survey numbers under a registered sale deed dated 05-03-1994 from Smt. Kamala Bai and 7 others represented by their G.P.A. holder. Further, ever since they have been in possession and enjoyment of the properties. Further the family of Kamala Bai perfected their title over the schedule property being in adverse possession of the same for over 100 years. Further, the respondents’ constructed a house in the property after purchasing it from Smt. Kamala Bai which was regularized by the Municipal Corporation of Hyderabad. 6. The Respondents 9, 16 to 19 adopted the counter of the first respondent whereas the respondents 2, 4, 5 and 15 filed separate counters with similar pleas adopted by the respondents 3, 6, 7, 8, 11 to 14 and the 10th respondent filed separate counter claiming that he got nothing to do with the schedule property and he was unnecessarily impleaded in the application. 7. On the strength of the pleadings, the Land Grabbing Court framed the following issues for trial : 1. Whether the applicant is the owner of the application schedule property? 2. Whether the rival title set up by the respondents is true, valid and binding? 3. Whether the respondents 1 and 9, in any event, perfected their title by adverse possession? 4. Whether the respondents are land grabbers within the meaning of Act XII of 1982? 5. Whether the applicant in case of its success is entitled to the compensation and profits as claimed? 6. To what relief? 8. On behalf of the applicant, Sri U. Raghuram Sharma, Mandal Revenue Officer, Shaikpet Mandal, was examined as PW.1 and Sri A. Jangaiah, the Mandal Surveyor, Shaikpet Mandal, was examined as PW.2 and got marked EXs.A-1 to A-6. On behalf of the contesting respondents the 5th of them got examined himself as RW.1, the father of the second respondent namely Raia Hasan was examined as RW.2 and 7th respondent namely Shakeel Javed Farooqui was examined as RW.3 and got marked EXs.B-1 to B.15. 9. The Land Grabbing Court upheld the claim of the applicant examining the material on record on the ground that evidence was adduced to the effect that necessary survey over the land was conducted as borne out by the relevant entries in T.S.L.R. and relevant pahanies for the years 1987-88 and 1973-74 in respect of survey Nos.39 and 225 apart from other records and the evidence adduced would establish that the applicant happened to be the owner of the land and out of the 19 respondents only the respondents 2, 5 and 7 filed copies of their sale deeds but the relevant link documents were not filed and therefore much credence should not be given to those sale deed copies and on the other hand, RWs.1 to 3 made admissions in their evidence that they got no valid title over the schedule property which conclusively proves the claim of the applicant and disproves the claim of the respondents. It is also observed by the Land Grabbing Court that when it happened to be open land, it is to be deemed to be Government land and further the respondents below failed to place any evidence in support of their respective claims. 10. It is the contention of writ petitioner in W.P. No.10758 of 2005 that he purchased the property bearing No.8-1-332/3/48 admeasuring 200 Sq. Yards in Survey No.38, 40, 224, 226 and 227 situated at Shaikpet village, Hyderabad, under a registered sale deed dated 30- 03-1996 vide document No.1063/1996 from M/s. Seema Nilofar Ansari and he verified the sale deed under which his vendor purchased that property on 02-06-1994 issued by the Sub-Registrar, Banjara Hills, and he constructed a small house in the land and it was regularized by the Municipal Corporation of Hyderabad, vide proceedings dated 09-09-1999, after collecting necessary fees from him and he leased out the property to others and he was shocked when he came to know that his vendor was declared as the land grabber of the property scheduled in the land grabbing case by the first respondent by its order dated 29-03-2005. Further, no notices were served at his address either in his name or in the name of his family members in the land grabbing case and thus he was totally in dark about the proceedings in the land grabbing case. Further, the second respondent should have made him a party to the land grabbing case he being necessary party. Further, in view of the impugned order, he has to hand over the possession of the property to the second respondent. Further, the land grabbing Court failed to appreciate the matter properly while disposing of the matter. 11. It is to be mainly examined as to whether : 1) Sufficient evidence was placed on behalf of the applicant with regards to its ownership of the property and also with regards to its claim that the respondents happened to be the land grabbers of the property by reason of which the respondents should be evicted from the property and the vacant possession of the property should be delivered to it? 2) Whether the judgement passed by the Land Grabbing Court is sustainable or not? 12. Point No.1: Section 10 of the Act postulates : “Where in any proceedings under this prima facie proved to be the land owned by the Government or by a private person the Special Court or as the case may be, the Special Tribunal shall presume that the person who is alleged to have grabbed the land is a land-grabber and the burden of proving that the land has not been grabbed by him shall be on such person”. When the Government asserts that it is the owner of the schedule property and the respondents happened to be the land grabbers of the property which the other parties deny it has to place satisfactory evidence to uphold its claim of ownership of the property prima-facie. Evidence was adduced in support of the respective claims. 13. It is the testimony of PW.1, the Mandal Revenue Officer, Shaikpet Mandal that the total extent of old survey No.39 of Shaikpet village happened to be Ac.23-00 guntas and of old survey No.225 happened to be Ac.7-00 guntas and both the properties were classified as ‘Poramboke lands’, that during the years 1964-1971 a town survey was conducted in the Shiakpet village under the provisions of the A.P. Survey and Boundaries Act, that during that survey an extent of 2,592 Sq. Mtrs. of land in the old survey No.39 was assigned to T.S. No.3/2, Block ‘L’, Ward No.13 recorded as ‘Sarkare Poramboke’ in the town survey records, that an extent of 848 Sq. Mtrs. in old survey No.225 was assigned to T.S. No.4 which was also recorded as ‘Sarkare Poramboke’ in the town survey records, that thereafter a notification under Section 13 of the A.P. Survey and Boundaries Act was published in Hyderabad Gazette under Ex.A-3 dated, 28-02-1977 but nobody questioned the survey under Section 14 of the A.P. Survey and Boundaries Act and that therefore the said survey became final. It is his specific evidence that no third party was in the possession of the property, whereas no third party claim was made for the property. It is also asserted by him that after 1998 under the guise of owning adjacent patta lands in Survey Nos.38, 40, 224, 226 and 227, the respondents grabbed the application schedule land. Further, he got marked Ex.A-5 a sketch prepared by the Inspector of Survey attested by the Deputy Director, Survey and Land Records, Ex.A-4 extract of the corresponding TSLR, Exs.A-1 and A-2 relevant pahanies for the years 1987-1988 and 1973-1974 for the land in survey Nos.39 and 225. Further, PW.2 Mandal Surveyor of Shaikpet village deposed accordingly and further he deposed that in the town survey records for T.S. No.3/2 and 4, Block ‘L’, Ward No.13 under the column meant for the name of ‘present employer’ it is recorded as ‘G’ which indicates that the Government happened to be the owner of the property and further its land is classified as Poramboke land. Therefore the State bases its claim on the TSLR and the corresponding record created, the validity of which the respondents on record question. 14. Both, PWs. 1 and 2 clearly emphasized that the property covered by the application is quite different from the properties claimed by the contesting respondents. Therefore, when it is ascertained that the property claimed by the Government is quite different from the properties claimed by the respondents, there should be clear evidence of demarcation and identity of the properties. 15. The evidence enumerated above only discloses that during the year 1977 a survey was conducted and then the property scheduled was identified as the property of the State and in spite of issuing necessary notification, no third party claimed to be the owner and enjoyer of the property and then it was accordingly mutated in the relevant revenue records as ‘Poramboke’ property. 16. Now the question is how far the entries in the TSLR and corresponding record determine the rights of the State over the property? 17. I n State of Andhra Pradesh Vs. Prameela Modi and others[1] Division Bench of this Court considered, a supplementary sethwar issued by Surfekhas administration in favour of the first respondent therein for an extent of Ac.3.27 guntas situated at Khairatabad village, Hyderabad District therein during 1356 fasli in recognition of her possession of the land, which was not challenged for a period of more than 55 years and also considered nature and scope of Town Survey Land Register, proceedings dated 03-11-1991 under the A.P. Land Encroachment Act, 1905, under which the land was declared as poramboke land, it was held : “47. Every record of right prepared and maintained under the provisions of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 shall be presumed to be true until the contrary is proved and until it is otherwise amended in accordance with the provisions of the Act. Every owner, pattadar etc., may apply for issue of passbook and the title deed and the title deed so issued duly certified by the competent authority shall be the title deed in respect of an owner/pattadar and it shall have the same evidentiary value with regard to the title for the purpose of creation of equitable mortgage under the provisions of the Transfer of Property Act, 1882 as a document registered in accordance with the provisions of the Registration Act, 1908. The true effect of the entries made even in a record of rights is not to create rights where none existed, but entries raise the presumption that such rights exist. The entries are prima facie evidence of possession and right to hold the land”. “50. The Surfekhas authorities for the resolution of the dispute and after due enquiry directed issuance of supplementary sethwar duly incorporating the name of Smt. Pramila Modi as pattadar for an extent of Acs.3.27 guntas of land in survey Nos.116/2 and 116/3 of Khairatabad village. 56. The entries in the sethwar prepared and maintained under the provisions of the Land Revenue Act can not be equated to that of mere revenue entries for the purpose of collection of land revenue”. Further, it is held : “61. The Boundaries Act is an Act to amend the law relating to survey of lands and settlement of boundary disputes. The act confers power upon the State Government to order a survey of any Government land or of any boundary of such land or of the boundary forming the common limit of Government land and land that is not a Government land and fixation of boundaries. There is no provision under the Act intending to make any detailed enquiries with regard to right, title and interest of the persons in the land. It is neither the object nor the scheme of the Act. It is not a record of right. There is no presumption that every entry made in the TSLR shall be presumed to be true until contrary is proved as in the case of entries made in the record of rights under the provisions of the A.P. Rights in and Pattadar Pass Books Act, 1971”. 18. In a decision of the Supreme Court reported in State of Andhra Pradesh Vs. Hyderabad Potteries Private Limited and another[2] the facts of which are that the appellant therein i.e., State of Andhra Pradesh claimed the land concerned therein on the strength of entries made in certain survey records and subsequent notification issued in that behalf without producing relevant other material, it is observed by the Supreme Court that the entries in the Revenue record alone may not be sufficient to conclusively prove the title of the applicant’s ownership. With reference to relevant circumstances it is also observed by the Supreme Court : “29. In the light of the same, the majority members of the Special Court came to the conclusion that certain entries in TSLR may not be sufficient proof of possession of the appellant State as owner thereof. Copy of the TSLR has been filed showing the details thereof. In Column 20 “G” is mentioned meaning thereby the Government, but in Column 23 which is remarks column, the possession of Respondent 1, Hyderabad Potteries Pvt. Ltd. Is clearly shown which is in consonance with the stand taken by the respondents. It is also pertinent to mention here that “G” was encircled raising doubts about it and then in Column 23 name of Respondent 1 is clearly stated”. So, every record of right prepared and maintained under the provisions of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 shall be presumed to be true until the contrary is proved and in other words it is not a conclusive proof of ownership and possession over certain land or lands and it is only a means to prove these aspects when a dispute is raised in that behalf. It emphasizes that whenever a record of right is created under the provisions of the Act, it shall be looked into on what footing it is so created and how far it is valid when a question arises about its genuineness. Further, long standing and original record of rights including that created under the statute would carry lot of credibility or evidentiary value. In the present context it must therefore be seen the basis for the preparation of TSLR with regards to the schedule property. In reality, it is not shown whether it was brought into existence on the basis of any previous records of rights in vogue. So, what emerges is that the TSLR appears to have been created on imagination assigning new survey numbers for the land which is not sustainable. It only amounts to self imposition of the ownership of the lands in the State by the State itself without any authority. 19. The plea that the properties claimed by the respondents are altogether different from the property claimed by the State can not be a ground to uphold the claim of the State unless the plea of the ownership of the State over the property is established. It is one of the main criteria to determine the opposite parties to be the land grabbers of the property. Therefore, the State utterly failed to discharge its burden of providing its title over the property and declaring the respondents as land grabbers of the property by reason of which the question of directing the respondents to evict from the property does not arise at all in any case. Even, there is no ascertainment of actual occupation of the property claimed by the State by the Respondents. 20. The Land Grabbing Court placed lot of reliance upon not only the evidence of PWs.1 and 2 and the entries made in the relevant survey records but also on certain admissions made by RW.3 who deposed that the land in survey Nos.39 and 225 happened to be Government Land. So, it is to be considered as to how far the admission of RW.3 is to be taken for the purpose of upholding the claim of the applicant. Lot of emphasis is to be given to the fact that only basing upon some imaginary grounds the concerned Revenue Authorities classified the schedule property as ‘Poramboke land.’ When there is no scope to come to a categorical conclusion that in fact the said survey was done on the basis of relevant original records and other relevant circumstances, the evidence of RW.3 who would not have necessary knowledge of the facts is also to be termed to be imaginary which should not therefore be given any importance as aid to uphold the claim of the applicant at all. 21. Further, the writ petitioner in Writ Petition No.10758 of 2005 relies upon his sale deed dated 30-03-1996 vide document No.1063/1996 claimed to be executed by his vendor namely M/s. Seema Nilofar Ansari who happened to be one of the parties of the land grabbing case and also his possession over the property for the benefit of effecting the order passed by the Land Grabbing Court without being a party to the land grabbing case. There is no assertion of the State in the land grabbing case that this writ petitioner happened to be one of the land grabbers of the property. When the claim of the State is with regards to different property and this writ petitioner is not a party to the land grabbing case, this Writ has no cause of action and as such it is not maintainable. Only when he got some cause of action, he could have filed the writ petition before this Court. Even supposing that he was affected by the order passed by the Land grabbing Court, he can always defend his rights over his property taking necessary measures at appropriate time without approaching this Court. There is no question of any lispendense here as the properties claimed by the adversaries are quite different apart from the fact that no claim was made by the State against the same in the Writ Petition. Therefore, for the foregoing reasons, we are of the opinion, that there are no merits in W.P. No.10758 of 2005 and the same is dismissed and the Writ Petitions Nos.12608 and 8904 of 2005 are allowed setting aside the order passed in L.G.C. No.125 of 1998 by the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad. There shall be no order as to costs. __________________